A Republican state lawmaker has asked the Arizona Attorney General’s Office to investigate whether Tempe’s voter-approved measure to curb anonymous political spending in local elections conflicts with state law.

The catch? The complaint was filed by the same lawmaker who proposed the state law he now alleges Tempe’s ordinance violates.

Sen. Vince Leach, R-Tucson, wrote in a complaint filed Monday with the attorney general that Tempe’s so-called “dark-money” ordinance conflicts with House Bill 2153, a 2018 state law that prohibits municipalities from requiring that political non-profits disclose their donors.

The city’s disclosure law requires political non-profits to disclose the name, address and employer of financial backers if spending exceeds $1,000 during an election cycle. This type of spending, referred to as dark money, often goes toward political ads, robocalls and other efforts to sway elections without any requirements to disclose donors.

“I filed the 1487 letter because the Tempe ordinance clearly violates Arizona state law,” Leach wrote in an email to The Arizona Republic. “House Bill 2153 protects non-profit donors by preventing cities from demanding exactly the kind of highly personal information that Tempe is seeking.”

Tempe said it plans to fight the long-expected complaint.

“The city believes disclosure obligations maintain the public trust, eliminate potential corruption and fraud in elections, and improve transparency and integrity,” the city said in a written statement. “Governor Doug Ducey rightly signed our Charter amendment into law in May 2018 and it should remain in effect for Tempe elections.”

The state Attorney General’s Office has 30 days to investigate Leach’s complaint.

Tempe law approved by 91 percent of voters

HB 2153 was widely seen as an attempt by Republicans in the state Legislature to undermine Tempe’s disclosure bill and prevent a similar ordinance in Phoenix from taking effect.

The bill was ushered through the Legislature and signed by the governor in April 2018, shortly after Tempe voters, that March, overwhelmingly approved the new disclosure rules by a 9-to-1 margin.

In May, Ducey signed off on Tempe’s voter-approved measure — a formality required by the state Constitution — but his office warned Tempe that the new rule could be challenged in the future, despite voters’ approval.

“Please note that this approval is based on the law as it is at the time of the approval and does not take into account any changes that have not yet taken effect from this legislative session,” Ducey’s Deputy General Counsel, Anni Foster, said in a letter to the city. HB 2153 went into effect later that August.

Lawmaker maintains state trumps local rules

Leach wrote in his complaint that “there is no way to reconcile the ordinance with (state law).”

“They directly conflict with one another. And in the event of a conflict between municipal ordinance and state law, state law controls,” he wrote.

Leach rejected the notion that his bill aimed to undermine Tempe’s ordinance, telling The Republic that his bill was introduced on the House floor in January “well before Tempe adopted its ordinance.”

Leach: Law violates First Amendment rights

Ducey and Republican lawmakers say political spending is an issue of free speech.

In his complaint, Leach said Tempe’s ordinance violates peoples’ constitutional rights and that the U.S. Supreme Court has held that non-profit groups and their donors “enjoy a First Amendment right to anonymity when those groups seek to effect change through the political process.”

He said the state Supreme Court has also held that the state Constitution “provides even ‘greater scope than the first amendment’ when protecting free-speech rights.”

“One thing is clear: the State of Arizona always has the authority to protect the constitutional rights of its citizens, and no local ordinance may violate those rights,” he wrote. “Tempe can no more violate this right than it could require voters to allow City officials to inspect their filled-out ballots. Local control ends where constitutional rights begin.”

Tempe: 'Dedicated to honoring' voters' will

In a written statement, the city said it will fully cooperate with the Attorney General’s investigation and prove Leach's complaint is “invalid.”

“Tempe voters want greater transparency about who is trying to influence our local elections and they voted overwhelmingly to create that openness,” Mayor Mark Mitchell said. “We are dedicated to honoring the will of 91 percent of Tempe voters to require disclosure of dark money contributions used to influence local elections.”

The city argued that the Arizona Supreme Court affirmed in 2017 that charter cities like Tempe have the power to regulate local elections and that local elections aren’t a matter of statewide concern.

Anticipating the city’s response to his complaint, Leach wrote to the Attorney General that while the courts have previously sided with cities on issues of local control of local elections, the state Supreme Court ruled in 2012 that “authority is not absolute.” He noted that the court in 1997 held that cities couldn’t prevent the state from establishing uniform election dates.

Leach told The Republic that cities are political subdivisions of the state and therefore can’t violate people’s constitutional rights “just by voting to do so.”

“Courts have said our cities enjoy some autonomy in choosing how to administer elections, but that is very different from what Tempe is trying to do when it seeks people’s personal information so that it can publish that information on the internet,” he told The Republic.

However, while the court has weighed in on whether cities have local control of election dates and other election matters, this could be the first time the court weighs in on local control of political funding.

The city, in its statement, accused Leach of overstepping.

“Once again a state legislator who represents southern Arizona has taken issue with Tempe’s efforts to govern and uphold the will of its voters,” the city said. “These challenges unnecessarily use taxpayer resources. However, we look forward to demonstrating that this objection is invalid.”

Leach told The Republic that neither his bill nor the complaint is an attempt to override the will of the voters.

“HB 2153 protects the constitutional rights of everyone giving money to an Arizona non-profit. Cities cannot undo those protections,” he said.

This is not the first time Leach has targeted Tempe using this investigative power. The AG’s Office last year investigated whether Tempe broke state law in signing two lease agreements with developers that received tax breaks after Leach filed a complaint. In that case, the agency found that Tempe’s agreements may violate state law and the city worked with the attorney general to fix the ordinance.

‘New territory’ for the AG’s Office

The complaint represents new territory for the Attorney General’s Office.

This is the first complaint filed under Senate Bill 1487 where a voter-approved initiative is in question.

The 2016 law allows any state lawmaker to ask the attorney general to investigate an ordinance, regulation or other policy “adopted or taken by the governing body of a county, city or town” to determine if it complies with state law.

Leach wrote in his complaint that Tempe’s dark-money ordinance was approved by the City Council in November 2017. But he didn’t mention that the new rules were contingent upon the approval of voters at the ballot.

“This is the first 1487 we have received related to a council-referred ordinance that initiated a voter-approved measure. The council sent the alleged illegal ordinance to the voters,” said Ryan Anderson, spokesman for the attorney general. “This is all-new territory.”

Whether SB 1487 gives the agency the power to investigate a voter-approved initiative is the “crux of the investigation,” Anderson said.

“Hypothetically, if a council takes a vote and refers an ordinance in violation of state statute to the voters, is the referral by the council subject to a 1487 penalty? And if the referral is in fact found to be illegal, what happens to the ordinance approved by voters?” he said.

He said despite Tempe’s new rules going into effect before the state law, he doesn’t believe there is a grandfathering provision in SB 1487 that would allow Tempe’s law, if found to violate state law, to remain on the books.

The Attorney General’s Office has 30 days to investigate Leach’s complaint. If the local ordinance is found in violation, municipalities have 30 days to come into compliance with the state law or risk losing their share of state-shared revenue, which funds vital city services.

If the attorney general finds that an ordinance may violate state law, then the office must ask the Arizona Supreme Court to settle the question of whether the ordinance is illegal.

Is Phoenix next?

In November, Phoenix voters overwhelmingly approved a proposition requiring outside groups that spend money to influence city elections to disclose their donors. The proposition was modeled after Tempe’s.

The governor must sign the charter change before it goes into effect, but he has not yet done so. Ducey spokesman Patrick Ptak said Phoenix’s ordinance is under legal review.

Leach told The Republic that if he finds that Phoenix’s ordinance violates state law and peoples’ constitutional rights “and if it is appropriate for 1487 review, then I would strongly consider submitting it as well.”

Reach reporter Paulina Pineda at paulina.pineda@azcentral.com or 602-444-8130. Follow her on Twitter: @paulinapineda22.

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