Secretary of State Dianna Duran
The secretary of state’s decision means six Public Regulation Commission and Court of Appeals candidates are without funds state law says they’re due; Dianna Duran says she’s complying with a U.S. Supreme Court ruling that tossed out an Arizona matching-funds law.
The Secretary of State’s Office is refusing to provide matching funds state law dictates are due to publicly financed candidates who are up against wealthier, privately financed campaigns.
To back up her decision, Secretary of State Dianna Duran cites a recent U.S. Supreme Court ruling that struck down a similar law in Arizona in 2011. As a result, six Public Regulation and Court of Appeals candidates are currently without funds state law says they’re due.
However, with the June 5 primary days away, the matter may not be fully resolved. A state district judge in Santa Fe will consider a request today to order Duran to release the funds.
The biggest impact of Duran’s decision is in the race for the Albuquerque-area District 1 seat on the Public Regulation Commission. State law dictates that Al Park’s publicly financed opponents in the Democratic primary, Cynthia Hall and Karen Montoya, are each due $61,066 because Park, whose campaign is privately financed, has raised almost $139,000.
In the Democratic Court of Appeals primary, Victor S. Lopez is due $21,727 under the N.M. Voter Action Act because opponent M. Monica Zamora has raised $107,475. And in the PRC District 3 primary, Danny Maki’s raising of almost $42,000 means his three Democratic primary opponents – Valerie Espinoza, Brad Gallegos and Virginia Vigil – are each due $1,730.90.
‘Two conflicting legal directives’
The decision to withhold the funds came early this week and followed two federal court hearings in a lawsuit filed by the Bernalillo County GOP and others challenging the constitutionality of New Mexico’s matching funds provision. A judge denied a request from the plaintiffs – and Park, who filed a motion to intervene in the lawsuit last week – to issue a temporary restraining order requiring Duran to withhold the funds.
Even though the judge denied that motion, Duran decided to withhold the funds. In a statement provided by Chief of Staff Ken Ortiz, Duran’s office said the attorney general advised that the New Mexico law was probably unconstitutional, but said Duran should issue the matching funds anyway unless a court ordered otherwise.
Duran rejected that advice, saying she is “faced with two conflicting legal directives” – a state law requiring the disbursement of funds and a U.S. Supreme Court ruling that says such disbursements would violate the constitutional rights of non-publicly financed candidates and their donors. Duran’s statement acknowledged that the federal judge hasn’t deemed the N.M. law unconstitutional.
Duran’s office was likely to face additional legal action either way, the statement read. It added that the federal judge admitted concern that disbursing the funds might lead to a lawsuit alleging a violation of the rights of the non-publicly financed candidates.
“Following the definitive statement from the Attorney General’s Office regarding the unconstitutionality of the statute, and the court’s observation that such a course of action could represent a violation of constitutional rights under federal law, the Secretary of State’s Office will not issue the matching funds at this time,” Duran’s statement reads.
‘No basis for withholding the funds’
PRC candidate Hall had filed a request in state district court in Santa Fe a week ago seeking an order to force Duran to release the funds. She told NMPolitics.net she spent Wednesday at the courthouse trying – with success – to get a hearing scheduled. It will be held at 4 p.m. today.
“The Republican Party and Al Park are trying to gut the public financing law in New Mexico by eliminating the matching provision,” Hall told NMPolitics.net. “The politics behind why the matching funds are being withheld is yet another reason why the PRC commissioners should be appointed by a politically-neutral body and not elected at all.”
NMPolitics.net asked all candidates in the three affected races for comment by e-mail. Park is among those who have not yet responded.
Hall said Duran has no discretion to decide whether to disburse matching funds because the N.M. Voter Action Act says she “shall” do it in cases where publicly financed candidates are outraised or outspent by privately financed opponents.
That’s essentially what the AG told Duran. Assistant AG Scott Fuqua advised that the matching-funds provisions in state law “are constitutional until a court determines otherwise,” an affidavit from state Elections Director Bobbi Shearer filed in the case reveals. Since a court hasn’t issued such a ruling, Fuqua wrote in a May 25 e-mail to Duran, “the Secretary of State’s office is not enjoined from complying with the matching funds provision of the Voter Action Act.”
“Given that legal landscape, there is no basis for withholding the funds and your office should provide them if requested,” Fuqua wrote.
Other candidates comment
Cheryl Harris, campaign manager for Court of Appeals candidate Lopez, said Lopez is “committed to preserving the Voter Action Act as an option in judicial races because of the need for judges to avoid the appearance of corruption when those who appear before a judge give contributions to that judge, particularly at fundraisers attended by the judge.” Lopez entered the lawsuit in opposition to the motion from the Republicans to stop the disbursement of funds.
“Judge Lopez’s campaign committee is disappointed that the secretary of state is choosing not to implement the law,” Harris said.
Gallegos, the PRC District 3 candidate, said he’s not surprised “that this is happening with a Republican secretary of state.” J. Miles Hanisee, the Republican Court of Appeals incumbent who will face Lopez or Zamora in November, said he’s not going to intervene.
“The United States Supreme Court has ruled that the matching funds provisions within public financing statutes are unconstitutional,” he said. “I accept that ruling, and because of it have chosen not to intervene in the ongoing litigation.”
The U.S. Supreme Court ruling
It was in July 2011 that the U.S. Supreme Court tossed out Arizona’s matching-fund provision in its public financing law. The 5-4 decision said a state’s attempt to level the playing field wasn’t fair to privately financed candidates.
“Leveling the playing field can sound like a good thing,” Chief Justice John Roberts wrote in the majority opinion, according to the Christian Science Monitor. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech.”
“The First Amendment embodies our choice as a nation that, when it comes to such speech, the guiding principle is freedom – the ‘unfettered interchange of ideas’ – not whatever the State may view as fair,” Roberts wrote.
In New Mexico, the Republicans’ lawsuit states that the matching-funds provision violates the First and Fourteenth amendments to the U.S. Constitution “by forcing candidates and independent political groups to abide by arbitrary expenditure limits, thus infringing on and chilling protected political speech and association without a sufficiently compelling governmental reason for doing so and without being narrowly tailored to achieve any legitimate governmental interest.”
The law is “designed to equalize the relative financial resources of candidates, operate in a punitive and coercive manner against privately funded candidates, and will chill future political participating by unsubsidized candidates and independent groups,” the lawsuit states.