The Citizens Clean Election Commission contends it did nothing wrong when it adopted a policy that effectively excluded third-party candidates from participating in debates for statewide and federal elections.
The Clean Elections Commission was created by voters in 1998 and charged with implementing voter education programs each election, including hosting dozens of candidate debates.
Prior to this year’s debates, the commission instituted a new requirement that candidates in statewide and federal races earn at least 1% of the total primary vote for their office to qualify for general election debates.
The decision effectively boxed out a handful of Green Party candidates running in those races, because there are only about 3,300 Green voters in the entire state, and candidates needed 10,000 votes or more to qualify for Congressional, U.S. Senate and statewide debates.
Chris Kline with Arizona Media Association, Clean Elections’ broadcast partner, previously said the Greens could have qualified by soliciting primary votes from independent voters; however, the Greens hosted a closed primary election, meaning independents were not eligible to select a Green ballot in the July primary.
In a letter to state Sen. Jake Hoffman (R-Gilbert), Clean Elections Executive Director Thomas Collins said the rule was necessary to carry out the commission’s mission to effectively inform Arizona voters by maximizing screen time for “viable” candidates like U.S. Senate hopefuls Kari Lake, a Republican, and Congressman Ruben Gallego, a Democrat at the expense of the Green Party’s Eduardo Quintana.
“In other words, the discretionary decision was informed by facts and realistic concerns and predictions, and aimed exclusively at maximizing the value of the 2024 Debates to the education of Arizona voters,” Collins wrote. “It accomplishes, facilitates and promotes the voter education commanded of the Commission by the Citizens Clean Elections Act, and helps ensure the Commission will not fail to honor those statutory duties.”
That letter came in response to a letter sent by Hoffman, chair of the Senate Government Committee, who claimed that 1% threshold qualified as a new rule adopted by the commission. He claimed the commission violated a state law passed by voters in 2018 that requires those rules to go through a public vetting process.
“The Clean Elections Commission clearly believes they’re above the law,” Hoffman said.
In his eight-page response, Collins disputed that claim.
He said the 1% threshold adopted this year should not be characterized as a “rule change” under the Arizona law requiring public review, including approval from the Governor’s Regulatory Review Council, for those changes.
Those rules include “provisions like those prescribing fees, or that amend or repeal a prior rule, but do not include intra-agency memoranda that are not delegation agreements.”
Hoffman claimed the Clean Elections is attempting to circumvent the Governor’s Regulatory Review Council after the council rejected a proposed rule change last year that dealt with the commission’s subpoena power.
“Given that Clean Elections had a rule change rejected by GRRC just last year, it’s incredibly suspect that it appears they chose to subvert the voter-approved process in an effort to deter participation of a candidate in a debate who will lawfully appear on the general election ballot,” he said.
Hoffman contended the new 1% threshold requirement required review, because it supplanted an existing Clean Elections Commission rule that lays out which candidates will not be invited to general election debates, including write-in candidates.
But, again, Collins said that was not the case.
“The rule does not say that the Commission must invite everyone else who may appear on the general election ballot,” he wrote.
Instead, Collins cited U.S. Supreme Court precedent that found entities hosting publicly-sponsored debates do have some leeway to adopt implementation criteria so long as the restrictions are neutral and do not discriminate against a specific viewpoint.
Collins said the 1% threshold was “was based on a rational judgement, informed by fact and Commission staff experience, about how to best promote voter education.” That included consultation with the Arizona Media Association, the commission’s broadcast partner, to ensure the debates reached the widest audience possible.
“We can't have a reasonable general election debate if we're trying to give equal time to candidates that receive 200 votes out of over a million cast," Kline, the president of the Arizona Media Association, told Capitol Media Services.
And, without a “reasonable debate,” Clean Elections could lose broadcast partners throughout the state, who he contends are giving up valuable air time to broadcast the debates live to voters without advertising, Collins told Hoffman.
“When the time in a debate will be divided with candidates who have received very little voter support prior to the general election debates, the Commission's contracted debate partners estimate many Arizona broadcasters will opt out of broadcasting the debate altogether because the debate will no longer appropriately dedicate its limited time to the candidates that have shown viable candidacy,” he wrote.
This year, 90% of local broadcasters and national outlets ABC News and CSPAN have agreed to air the Lake-Gallego debate, Collins said.
The Greens – a party rooted in anti-war and environmental activism – have found an unlikely alley in far-right Republicans like Hoffman and Lake, who also called on the commission to allow Quintana to participate.
Democrats alleged that is simply an attempt to increase the profile of a third party candidate like Quintana, who could siphon votes away from Gallego.
Hoffman lobbed a similar allegation at the Clean Elections Commission, arguing its rule was a veiled attempt to help Democrats like Gallego.
Collins denied the allegation, maintaining the decision to create the qualification was “neutral and based only on the categories of concerns for not undermining maximum, statewide broadcast of well-produced debates that were attractive in advance to potential voters and most likely to hold voter interest and engagement throughout the debate broadcast.”
Collins also pointed out that the Arizona Green Party and its candidates failed to challenge the new rule after being made aware that they would be excluded from some debates in late August.
Cody Hannah, the party’s co-chair, said the Greens are exploring their legal options and whether the state or national party has the funds available to sustain a lengthy legal battle. Quintana, the U.S. Senate candidate, said they are also preparing to file a complaint with Arizona Attorney General Kris Mayes.
