PHOENIX -- A bid by Republican lawmakers to ask voters to ban public financing of elections is legally flawed and cannot be on the 2012 ballot, a judge ruled Wednesday.
Maricopa County Superior Court Judge Dean Fink said there is nothing wrong with asking voters to essentially overturn the key provisions of the 1998 Citizens Clean Elections Act. It allows but does not require candidates for legislative and statewide office to get public funds if they do not take money from special interests.
And Fink said that same ballot measure can also bar the system of public financing used by Tucson.
But the judge said lawmakers acted illegally by making the measure so expansive that, if approved, it would take any money set aside by Tucson for its system and give it to the state. That, said Fink, violates requirements that constitutional measures encompass only one subject.
Former state Sen. Jonathan Paton, R-Tucson, who has been a foe of public financing, said Wednesday he is not sure what will be the next move.
"We can either appeal or we can go back to the Legislature and say, 'Simon says' (and make the changes) and be right back on the ballot,' he said. Paton said that, in essence, the judge provided a roadmap of how to fix the measure to make it legal.
Attorney Paul Eckstein, who represents supporters of public financing, conceded as much. But Eckstein said even if lawmakers removing the offending provision about raiding Tucson's funds, that does not preclude him from raising a new challenge to a revised measure.
Business interests and most Republican lawmakers have been trying to kill public financing since it was first approved by voters.
The U.S. Supreme Court did rule it is illegal to give publicly financed candidates extra cash when their privately funded foes spend more. But every other legal challenge has been turned aside.
That has left foes with only one option: Ask voters to reconsider the law.
Technically speaking, though, even a revised version of this would not even do that.
Foes are not seeking repeal of the Citizens Clean Elections Act. Instead they are proposing a constitutional amendment to make public funding of all elections illegal. And that amendment, if approved, would automatically overrule the 1998 statute.
Paton has defended the tactic, saying it is more fair to ask voters to ban public financing for candidates than to ask them to repeal something called "Clean Elections.' He acknowledged, though, that labeling the measure the "Stop Public Money for Political Candidates' Campaign Act' was designed to get more support.
Fink said there is nothing unfair about lumping in Tucson's system of providing matching funds for candidates into a ban on outright public financing for statewide and legislative candidates. He said the two issues share a common principle: public funds should not be used in elections.
But he said it's not fair to give voters from throughout the state the power to raid Tucson funds, saying residents outside the city might be persuaded to support the measure only because they think they will get "free money' from the city to use for other programs.
Testimony during a hearing last week said the amount Tucson would have in the account ranges from $200,000 to $400,000 a year, depending on whether there is an election coming up.