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Hobbs, Yee want Mayes to weigh in on Clean Elections appointment cadence [1]
['Jim Small', 'More From Author', '- January']
Date: 2024-01
Gov. Katie Hobbs and state Treasurer Kimberly Yee are asking the attorney general to settle a dispute between them over who gets to appoint a new majority on the Citizens Clean Elections Commission later this month.
And that decision by Attorney General Kris Mayes, a Democrat, and Solicitor General Joshua Bendor could have major ramifications in the 2024 election, as Clean Elections commissioners are tasked with enforcing the state’s new “dark money” disclosure law that voters approved last year.
Republicans largely opposed the ballot measure that requires disclosure of otherwise anonymous campaign contributions to third-party groups, though the measure won the support of more than 70% of voters.
Since it would take a majority of commissioners to initiate an action against a group that failed to properly disclose the source of its money, a CCEC majority appointed by Yee, a Republican, could potentially scuttle enforcement of the new law in the first election it will be in effect.
And Yee says she ought to be able to name replacements for three of the five commissioners this month. All of the commissioners are serving years past the ends of their five-year terms.
Because all five need to be replaced before Feb. 1 — the date in state law that terms for commissioners begin — Yee proposed that she and Hobbs each make all of their selections at the same time instead of alternating, as would happen if the appointments were done annually, as intended.
But in her Dec. 20 letter to the governor, Yee wrote that she intended to name three of the five commissioners — the panel’s two Republicans and an independent — citing the fact that Hobbs made the most recent appointment to the CCEC in 2017, when she appointed GOP Commissioner Amy Chan.
State law dictates that the appointments alternate between the governor and the highest-ranking elected official in the opposing party. In 2017, with Republicans controlling all statewide offices, Hobbs, who was then the Senate Minority Leader, was the highest-ranking elected Democrat.
Although Doug Ducey, a Republican, was governor at the time and through 2022, he made no appointments, even as the terms for all five commissioners expired. Yee, who is now the highest-ranking elected Republican, wrote that the correct standard to follow was to alternate appointments by political party. And since Hobbs had made the last pick, that meant Republicans held the next appointment.
But in a Dec. 22 response, Hobbs rejected Yee’s proposal. Rather than merely alternating between parties, Hobbs wrote that the selection process requires the governor to appoint every other commissioner. And since Ducey chose not to appoint anyone during his final five years in office — he was obligated to replace Commissioner Steve Titla, a Democrat, in 2018 — the next appointment still lies with the governor, even if a Democrat now holds that office.
The process, Hobbs wrote, “is designed to produce a Commission that alternates each year between a 3-2 majority of gubernatorial appointees and a 3-2 majority of non-gubernatorial appointees.” Were Yee to choose the majority of the commissioners, that would go against what voters intended when they created the Clean Elections Commission, she added.
Hobbs suggested her staff and Yee’s meet before the end of the year to see if they could come to an agreement on appointments, and seek an opinion from the attorney general if they couldn’t. After the two sides failed to work out the conflict, Hobbs’ office on Dec. 28 made a formal opinion request.
In a Jan. 2 letter supporting the call for an AG opinion, Yee made her case for why the current appointment ought to rest with her and not the governor because a Democrat is now governor.
She noted that when control of the Governor’s Office switched parties in the past — in 2003, when Democrat Janet Napoitano became governor, and again in 2009, when Republican Jan Brewer replaced Napolitano — the appointments alternated between parties, and control didn’t remain with the governor.
In 2002, Gov. Jane Hull, a Republican, made her appointment. But a year later, Napolitano was governor, and she still made an appointment. Likewise, in 2009, after Napolitano resigned and Brewer became governor, the appointment was made by Terry Goddard, the Democratic attorney general, because the 2008 appointment had been made by Brewer when she was secretary of state.
“In the absence of clear procedures, this approach is most consistent with the intent of the statute, as it would be illogical to have the same political party select a commissioner twice in a row simply because the governor’s party changed between appointments,” Yee wrote, “thus, making the ‘alternating’ requirement superfluous and provide an advantage to one party over the other.”
A spokesman for Mayes said the Attorney General’s Office intends on issuing its opinion before Feb. 1.
***UPDATED: This story has been updated to include a comment from an AG’s spokesman.
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