In this past November’s election, Arizona voters were misled into passing Prop 211. Billed as the “Voters’ Right to Know Act” that’s supposed to “Stop Dark Money” in our state, it sounds harmless enough. But that was all a part of the clever messaging from its campaigners—like former Arizona Attorney General Terry Goddard—to scare the average person into voting “yes.”
Unfortunately, it worked. But Prop 211 is unconstitutional, and that’s why the Arizona Free Enterprise Club, in partnership with the Center for Arizona Policy and the Goldwater Institute, filed a lawsuit to stop the Act from being enforced…
A civil rights lawsuit has been filed by two Arizona nonprofits in hopes of having the recently passed Voters’ Right To Know Act aka Proposition 211 declared unconstitutional.
The Arizona Free Enterprise Club (AFEC) and the Center for Arizona Policy have joined forces to seek a preliminary injunction barring implementation of Prop 211 while the case is litigated. The groups are represented by the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.
In announcing Thursday’s lawsuit, AFEC issued a statement which argues that Arizona voters “were misled into passing Prop 211” by supporters like former Arizona Attorney General Terry Goddard who railed against the vague threat of “dark money” in the state’s elections.
Prop 211 received more yes votes than no votes in all 15 counties, and easily passed by more than 1 million votes. But the plaintiffs insist the new law jeopardizes and interferes with the right of all Americans to freely support campaigns and causes in Arizona without being intimidated.
The Voters’ Right To Know Act requires all entities and persons spending more than $50,000 in “campaign media spending” on statewide campaigns (or $25,000 on other campaigns) excluding personal monies and business income to disclose the original donors of any contribution over $5,000.
The Act involves the disclosure of those donors’ names, mailing addresses, and occupations. It also requires disclosure of the identities of those donors’ employers.
“This is just another attempt to target, harass, and dox conservatives who won’t submit to the Left’s agenda,” the AFEC statement reads. “And if you don’t think this happens, think again.”
The statement notes the experiences of its own staff “who have received numerous phone calls and voicemails threatening violence—including one staff member whose car was vandalized for engaging in public communications on our behalf.”
As required by state law, the Plaintiffs were required to provide notice to the Arizona Attorney General, the Speaker of the Arizona House of Representatives, and the President of the Arizona Senate that they are seeking to have Prop 211 declared unconstitutional.
There is recent precedent for the legal arguments put forth by the Goldwater Institute for the plaintiffs. A U.S. Supreme Court decision last year in Americans for Prosperity v. Bonta struck down a similar law in California on the grounds that the First Amendment protects the freedom to anonymously support organizations and nonprofits.
A central theme of the Arizona lawsuit against Prop 211 is the guarantee in the state Constitution that citizens have the right to speak freely, a right even broader than what is guaranteed under the First Amendment of the U.S. Constitution.
The lawsuit notes the Arizona Constitution expressly guarantees that an individual’s “private affairs” will not be disturbed, particularly those that pertain to financial information and one’s choices when casting a ballot.
“Transparency is for government; privacy is for individuals,” the lawsuit argues.
Another problem with Prop 211, according to the lawsuit, is its definition of campaign media spending to include any public communication which “promotes, supports, attacks, or opposes” a candidate within six months of an election or “refers” to a candidate 90 days before a primary election.
That overly broad language means any article, blog, or social media post by groups like AFEC or Center for Arizona Policy about something as commonplace as a vote by a lawmaker could trigger compliance with the new law if that lawmaker is running for office or opts to soon after the communication.
“And if you think that by simply avoiding traditional campaign media spending (sending out a mailer, airing a TV commercial, etc.) will protect you from Prop 211, think again,” the AFEC statement notes. That is because the new law applies to all “research, design, production…or any other activity conducted in preparation for” a public communication about a candidate.
“Since writing articles and producing social media posts have a cost, we would have to calculate and regularly track how much staff time and office resources are used to produce these materials,” the statement notes.
Such an onerous level of accounting would force AFEC to drastically limit its public communications—even if a communications are not campaign related—“to avoid the absurd dragnet and complex regulatory labyrinth established by this Act,” the group noted.
Joining AFEC and Center for Arizona Policy as plaintiffs are “Plaintiff Doe I” and “Plaintiff Doe II,” both described as Arizona citizens and Maricopa County residents. The Doe plaintiffs allege that it is unconstitutional to require them to “reveal his or her identity when donating to charitable organizations that engage in public communications supporting issues and candidates” the two support.
Their lawsuit has been assigned to Judge John Hannah of the Maricopa County Superior Court. The defendants include Arizona Secretary of State Katie Hobbs as well as the Arizona Clean Elections Commission, its executive director, and its five commissioners.
It is the Clean Elections Commission which is tasked with establishing and interpreting the new standards outlined in Prop 211. The Commission has often been at odds with AFEC in past ballot initiatives and litigation, including one case in which the U.S. Supreme Court significantly reduced the Commission’s power.
Terri Jo Neff is a reporter for AZ Free News. Follow her latest on Twitter, or send her news tips here.
IronOaks Homeowners’ Association in Sun Lakes has been misinforming its residents. They are telling them that they cannot put up campaign signs in their yards until 71 days before the general election on November 8, 2022.
That is not true.
Communication from the Maricopa County Elections Office confirmed that fact and referenced Arizona state law, ARS 33-1808 (C), which clearly states that HOAs can only regulate political yard signs under the following specific conditions, including placement of signs 71 days before the primary election which was on August 2, 2022.
“ ….Notwithstanding any provision in the community documents, an association shall not prohibit the indoor or outdoor display of a political sign by an association member on that member’s property, except that an association may prohibit the display of political signs as follows:
1. Earlier than seventy-one days before the day of a primary election (which was on August 2, 2022).
2. Later than fifteen days after the day of the general election” (which is on November 8, 2022).
When confronted with this discrepancy, several HOA staff members repeatedly responded with the refrain of “We have to follow our own rules and regulations.” Apparently, they are oblivious to the fact that Arizona state law clearly takes precedence over any HOA rule. That is what “… Notwithstanding any provision in the community documents …” in this statute literally means. This homeowners’ association simply cannot act as law unto themselves.
Cease and Desist
A cease-and-desist letter was hand-delivered to Veronica Semey, IronOaks’ HOA Director of Community Services, on August 26, 2022 demanding that the IronOaks Homeowners’ Association do the following:
1. Immediately, cease and desist from incorrectly informing residents that they cannot have campaign signs in their yards.
2. Within thirty days, publish a communication to every resident in the HOA correctly informing them of their rights under ARS 33-1808 regarding placement of campaign signs.
3. Within sixty days, update the HOA rules and regulations so that they are fully compliant with ARS 33-1808.
Retaliation
Upon delivery of this letter, the HOA threatened fines and sanctions if its clearly illegal rules were not complied with. This is in spite of the fact that their improper prohibitions were actually due to expire in a matter of a few days. This appears to be a petty and vindictive threat of retaliation that smacks of bureaucratic intimidation and bullying that many residents have become so disappointed with.
Another ploy that was advanced was to direct an appeal of any improper sanctions to the HOA board. This ignores the fact that the HOA board does not sit in judgment regarding Arizona statutes. It is expected to be in full and complete compliance with them as written.
There are other miscommunications by the HOA regarding political signs and campaigning.
Number of Yard Signs
Many residents believe that they can only have one political yard sign in their yard.
This is also not true.
The actual ARS 33-1808 (D) statute reads that the “… the maximum aggregate total dimensions of all political signs on a member’s property shall not exceed nine square feet.” This is equivalent to three standard 18” x 24” signs.
Door Knocking
Residents have also been led to believe that “door-knocking,” or residents going door to door to speak with their neighbors, is prohibited in the community.
This is also not true.
The actual ARS 33-1808 (H) statute states that there are only limited restrictions that an HOA can impose:
1. Restrict or prohibit the door-to-door political activity from sunset to sunrise.
2. Require the prominent display of an identification tag for each person engaged in the activity, along with the prominent identification of the candidate or ballot issue that is the subject of the support or opposition.
HOA Wars and Free Speech Rights
This situation is reminiscent of the “HOA Wars” from several years ago. Rogue HOAs that were abusing residents with tyrannical policies eventually had to be reined in by the Arizona legislature. The ARS 33-1808 legislation discussed here was most likely one of several statutes that were put in place to protect residents from the atrocious activities of HOA management teams.
These unlawful actions by the IronOaks Homeowners’ Association have deprived their residents of their rights to free speech that are guaranteed in the U.S. Constitution’s First Amendment and by Arizona state statute. They have also caused harm to political candidates who rely on their free speech rights to present their campaign messaging to potential voters in order to win elections.
Suppression of the civil right to free speech is certainly not the direction that our citizens want the country to be heading in. Now, it’s time for HOA Boards to make sure they are in full compliance with all local, state, and federal laws before they impose any rules and regulations on their residents.
Kurt Rohrs is a candidate for the Chandler Unified School District Governing Board. You can find out more about his campaign here.
Every American should be free to peacefully support causes they believe in without being harassed or intimidated.
Someone should tell that to Terry Goddard. For years, the former Attorney General of Arizona has been leading a campaign to “Stop Dark Money” in our state. Although the name sounds nefarious, it’s nothing more than clever messaging aimed to scare the average person.
But now Goddard’s new donor harassment initiative is set to file signatures in the coming days. And if it makes it onto the ballot and becomes law, it would be a devastating blow to donor privacy and free speech.
On Thursday, Attorney General Mark Brnovich co-led a 20-state coalition in filing an amicus brief in the Supreme Court case deciding the speech rights of business owners. The coalition filed their amicus brief the day after Pride Month began.
At the heart of the case — 303 Creative v. Elenis — is Colorado businesswoman Lorie Smith, a graphic artist and website designer who refused to design wedding websites for same-sex couples per her religious beliefs. Colorado law C.R.S. 24-34-601 prohibits businesses from discriminating on the basis of sexual orientation, gender identity, and gender expression, even due to religion. The state considers any business that sells to the public or offers services, facilities, privileges, advantages, or accommodations to the public as a “place of public accommodation” and therefore beholden to their anti-discrimination law.
The amicus brief pointed out that Smith provided other services to LGBTQ+ customers, but that her Christian religion prevented her from providing wedding-related services to those customers. It also pointed out that Smith’s hesitation concerned the message she would convey in being forced to do so; in other words, her speech and not the status of a customer.
The Christian Bible dictates that marriage is the union between one man and one woman, and that homosexuality is a sin.
“Colorado interprets its public-accommodation law to forbid Smith from expressing her desired messages about marriage. In its view, graphic artists who create websites celebrating opposite-sex marriages must do the same for same-sex marriages, and refusing to do so subjects those artists to punishment,” read the amicus brief. “By adopting this position, Colorado violates the constitutional rights of its citizens, because the First amendment prohibits States from forcing individuals, including people who create custom speech for a living, to speak in favor of same-sex marriage.”
In a press release, Brnovich asserted that business owners like Smith have a constitutional right to discern speech as part of their business.
“Owners of small companies do not give up their constitutional rights as a cost of doing business,” said Brnovich. “Freedoms of speech, belief, and expression are at the core of who we are as Americans, and our government is out of line to infringe on them.”
“As a Christian artist, I was really excited to step into the wedding industry and use my artistic talents. Except, there’s a Colorado law that prevents me from continuing my work and forces me to violate my beliefs and speak messages I don’t agree with,” stated Smith. “Every American should have the right to control the content of their own speech.”
Nebraska, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Ohio, Oklahoma, South Carolina, Tennessee, Utah, and West Virginia joined Arizona in the amicus brief.
Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.
