Legal Memo - Campaign Finance Complaint

Note: This campaign finance adjudication was composed and written in its entirety by Austin Cromack on behalf of Eric Spencer in his official capacity as Elections Director for the State of Arizona. Party names have been removed in order to preserve confidentiality. Permission has been granted by the Office of the Secretary of State to use this as a writing sample.

July 2, 2018

VIA REGULAR MAIL AND EMAIL

Party A 111 E. Complaint Street Phoenix, AZ 85020 PartyA@gmail.com

Matter No.: Complainants: Party A; Party B Respondent: Party C for Office, Committee ID 200000000

Dear Messrs. Party C, A, and B:

The Secretary of State’s office received two campaign complaints alleging Party C for Office (“the Campaign”) violated A.R.S. § 16-1019(C) and (H) by posting campaign signs more than 60 days before the primary election.1 These complaints have been consolidated in light of the similar allegations against the Campaign.

Party A alleged the Campaign erected political signs in Tucson as early as April 22, 2018.2 Party A Compl. at 1. Party A contended that A.R.S. § 16-1019(H) precludes persons from erecting political signs more than 60 days before an election by citing Ariz. Op. Att’y. Gen. No. I16-006 (June 7, 2016).3 Id. Party A argued the political signs should therefore be removed. Id.

Party B alleged the Campaign likewise violated Arizona law by prematurely erecting political signs “throughout Mohave County” before the primary election. Party B Compl. at 1. Party B contended the Campaign’s actions are “contrary to the rule” concerning political signs and claimed the Campaign’s signs should have been removed until they were permitted to be put up. Id.

In response, Party C argued that placing political signs more than 60 days before an election did not violate Arizona law. Party C Resp. at 1. Party C argued that the plain language of A.R.S. § 16-1019(H) only establishes a 60-day period before the primary election when signs are protected from removal by a city, town, or county. Id. Party C contended A.R.S. § 16-1019 “does not restrict putting up signs” by citing an Attorney General opinion concerning the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, AZ.4 Id. (citing Ariz. Op. Att’y Gen. No. I15-011 (Dec. 2, 2015)).5 Party C therefore concluded the complaints should be dismissed. Id.

Based on the evidence and arguments presented, the Secretary of State finds no reasonable cause to believe that the Campaign violated A.R.S. § 16-1019.

Analysis

Under Arizona law, “a city, town or county of [Arizona] shall not remove, alter, deface or cover any political sign” if certain requirements are met. A.R.S. § 16-1019(C). These requirements include proper size and placement in a public right-of-way and whether the campaign’s identifying information is displayed on the sign. See id. The protection A.R.S. § 16-1019(C) provides is limited to the period commencing 60 days before a primary election and ending fifteen days after the general election (the “safe-harbor” period). See A.R.S. § 16-1019(H). A.R.S. § 16-1019 does not state that candidates violate the law by erecting political signs outside the safe-harbor period. See A.R.S. § 16-1019.

If the Arizona Legislature intended that A.R.S. § 16-1019 prohibit the erection of signs outside the safe-harbor period, its recent amendment to the statute did not achieve that objective. The statute was amended in 2011 to establish statewide protection of political signs from removal by cities, towns, and counties. See Political Signs; Public Right-of-Way: Hearing Before the House Gov’t Comm., H.B. 2500 Ariz. (2011), available at https://apps.azleg.gov/billstatus/billoverview/28945. During the House Government Committee hearing on Feb. 15, 2011, Representative David Gowan, the sponsor of the bill, affirmed multiple times that the bill’s purpose was to assist those running for office by having only one law to obey for campaign signs rather than several differing city codes. Id. Neither the sponsor nor other committee members stated the purpose or effect of the statute was to preclude the placing of political signs outside of safe-harbor period. See id. In subsequent hearings for the bill, no one argued the amendment prohibits signs placed outside of the safe-harbor period.

A recent Attorney General opinion does not support the complainants’ position. In response to a State Representative’s inquiry concerning the meaning of “primary election” in A.R.S. § 16- 1019(H), the Solicitor General opined if “primary election” meant the date primary election early ballots were mailed “candidates and ballot supporters/opponents would have approximately 27 additional days to post political signs.” Ariz. Op. Att’y. Gen. No. I16-006 (June 7, 2016). However, the additional 27 days mentioned by the Solicitor General refer to the expansion of the 60-days before a primary election when signs are protected, not necessarily establishing a period when signs are prohibited from being erected. See id. While the opinion addresses the safe-harbor period, it does not clarify whether candidates are precluded from placing signs before the commencement of that period.

Disposition

Since A.R.S. § 16-1019 is silent with respect to when candidates may erect campaign signs, the Secretary of State finds no reasonable cause to believe that Party C for Office violated A.R.S. § 16-1019 and dismisses the complaint accordingly.

The Secretary acknowledges the result likely conflicts with most lawmakers’ and candidates’ interpretation of A.R.S. § 16-1019. However, cities’ and towns’ uneven enforcement of A.R.S. § 16-1019(H) during the 2018 election cycle has exposed the shortcomings in this statute. As demonstrated by this case, a candidate willing to test a local jurisdiction’s commitment to code enforcement can gain a competitive advantage over his or her opponents. The Legislature could not have intended these perverse incentives. However, it is the Secretary’s duty to interpret the law, not rewrite it. See State ex rel. Woods v. Block, 189 Ariz. 269, 275 (1997) (under Article III of the Arizona Constitution, “[t]he [L]egislature possesses the exclusive power to declare what the law shall be . . . [while] the executive branch’s duty is to carry out policies and purposes declared by Legislature.”).

cc: Josh Kredit Greg Jernigan

J.D. Mesnard Steve Yarbrough

Very truly yours,

Eric Spencer State Election Director Arizona Secretary of State Michele Reagan (602) 542-8683 espencer@azsos.gov

jkredit@azleg.gov gjernigan@azleg.gov jmesnard@azleg.gov syarbrough@azleg.gov

1 These complaints were independently submitted by email from Party A and Party B on April 24, 2018 and May 8, 2018 respectively.

2 Party A attached a picture of a campaign sign displaying “Party C for Office – PartyCforOffice.com” alleging the sign was posted on the southwest corner of N. La Cholla Blvd. and W. River Rd. in Tucson, AZ. SeeParty A Compl. at 3.

3 The Attorney General Opinion was issued to address the timeframe for application of A.R.S. § 16-1019(H) and whether the casting of early primary ballots affected the meaning of the statute. 

4 135 S.Ct 2218 (2015).

5 The Attorney General opinion was issued in response to the U.S. Supreme Court’s decision to apply strict scrutiny to laws that limit the content of signs and opined whether the Court’s ruling in Reed rendered A.R.S. § 16-1019 unconstitutional. Nothing in the Attorney General opinion addressed the propriety of erecting signs outside the safe-harbor period. See Op. Att’y Gen. No. I15-011 (Dec. 2, 2015).