Arizona Supreme Court upholds anti-dark money law passed by voters in 2022

The Arizona Supreme Court upheld an anti-dark money law approved by voters but gave critics one last opportunity to prove the measure violates free speech protections by opening political donors up to threats and harassment.

The Voters Right to Know Act, which was approved by 72% of voters in 2022, requires people or organizations that spend more than $50,000 on commercials or other media in statewide races to disclose donors who have given them at least $5,000. The same disclosure requirement is in place for groups that spend more than $25,000 in other races.

Conservative groups Center for Arizona Policy and the Arizona Free Enterprise Club filed a lawsuit to invalidate the new law, arguing it violated state free speech and privacy laws. The groups claimed that exposing donor identities would open those people up to harassment and discourage them from political giving in the future.

In a split opinion, the Arizona Supreme Court largely rejected those arguments, finding that, broadly, the Voters Right to Know Act doesn’t violate free speech protections in the Arizona Constitution.

“Donors supporting campaign media spending for ordinary ballot measures, municipal candidates, bond elections, or budget issues, for example, are not inherently subject to retaliation,” Chief Justice Ann Scott Timmer wrote in the court’s opinion.

The justices concluded that Arizona leaders and voters have long supported campaign disclosure laws, going back to the framers of the state Constitution, who required the first legislature to adopt campaign finance disclosure rules.

And, in 1917, the state Legislature adopted a law banning anonymous donations to ballot measure campaigns.

“Arizona’s early enactments, adopted in the state’s formative years, confirm that the framers and the People viewed disclosure of election-related contributions and contributor identities as essential, effective tools in preserving fair and transparent elections,” she wrote.

The justices also said the law doesn’t violate the state constitution’s privacy protections, which state, “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

According to Timmer, that’s “because donations to fund campaign media are not ‘private affairs’ within the meaning of the Clause.”

Not over yet

Despite those broad rejections, the court did give attorneys for the Center for Arizona Policy and the Arizona Free Enterprise Club the chance to prove that the law will stifle the free speech rights of their specific donors due to concerns about threats, harassment or retaliation.

The justices overturned lower court orders that had dismissed those claims before they could be fully argued before a judge, and sent that part of the case back to Maricopa County Superior Court.

“CAP and FEC ground these allegations in concrete facts,” Timmer wrote, citing threatening messages received by both groups related to their political positions and declarations from unidentified donors who said they will limit their contributions to avoid triggering disclosure requirements under the new law.

After the ruling, both sides are claiming victory.

“A retaliation claim was at the heart of this case, and what the court held was there's grounds to go forward on retaliation,” said Andrew Gould, a former Arizona Supreme Court justice who represented plaintiffs in the case.

Gould called the court’s decision to keep that claim alive “a win for democracy.”

And Peter Gentala, president of Center for Arizona Policy, said the conservative groups challenging the laws have real fears that need to be addressed by the court. He also noted three justices — Kathryn King, John Lopez and Clint Bolick — disagreed with the part of Timmer’s opinion upholding the Voters Right to Know Act.

"This is a critical step forward for every Arizonan who wants to support causes they believe in without fear of harassment, retaliation, cancellation, or personal safety,” Gentala said in a statement.

But former Arizona Attorney General Terry Goddard, who spearheaded the campaign to pass the anti-dark money law, said he is confident the law will survive, arguing there is no evidence that disclosure laws are contributing to increased harassment against donors.

“For 114 years, we've had disclosure statutes in the state of Arizona ever since statehood,” Goddard said. “In fact, the original constitution required that the Legislature pass a disclosure bill, and there are no recorded incidents of anybody being harassed or bothered or beaten up of whatever from a political contribution disclosure that's made every day.”

Goddard accused the plaintiffs in the case of trying to create special protections for wealthy donors and said he is confident the courts will reject that argument, pointing to Timmer’s opinion.

“And although the court didn't emphatically say, ‘well, that's not true,’ they did, in fact, knock down most of the arguments that have been made to support that special rights idea,” Goddard said.

The Supreme Court’s ruling also keeps the Voters Right to Know Act in effect for this year’s elections, he noted.