Green Party candidates in fraud probe sue Clean Elections to block possible repayment

Two candidates facing civil and criminal investigations into whether they fraudulently qualified for millions in public campaign funding want a court to block the Clean Elections Commission from making them repay the money. 

Gubernatorial candidate Risa Lombardo and secretary of state candidate Duwayne Collier filed a lawsuit against the Arizona Citizens Clean Elections Commission, its executive director Tom Collins and the state of Arizona on Thursday, accusing them of overstepping their legal authority and violating the candidates’ First Amendment rights. 

Lombardo and Collier won their Green Party primary races in July, but the Arizona Green Party has accused them of being Republicans in disguise, aimed at pulling progressive votes away from Democratic Gov. Katie Hobbs to benefit her Republican opponent Andy Biggs. 

Lombardo has extensive ties to the Republican Party, and both she and Collier have both worked with numerous people and businesses directly tied to the GOP during their campaigns. 

Lombardo, Collier and Republican gubernatorial candidate Scott Neely, who didn’t make it past the primary, are all under investigation by the Clean Elections Commission and the Arizona Attorney General for accusations that they fraudulently used voter information to submit enough $5 contributions to qualify for a total of more than $4.7 million in public campaign funding. 

Like other Clean Elections candidates, Lombardo, Collier and Neely agreed to forgo large donations and money from PACs in exchange for a fixed amount of public funding, based on the office they seek. 

As a condition of their participation, candidates agree to follow a long list of Clean Elections rules, including increased reporting requirements about how they spend campaign money. 

Collins informed Lombardo, Collier and Neely in Aug. 25 letters that, once his investigation is complete, the commission might require them to repay the money.

On Sept. 10, Tim La Sota, the attorney for Lombardo and Collier, filed the lawsuit in Maricopa County Superior Court, although the text of the complaint says the events described in it happened in Cochise County. 

“Defendants are trying to bully and intimidate Plaintiffs into effectively dropping their campaigns, campaigns the Commission disapproves of, by depriving them of Commission funding, or threatening to subject each to hundreds of thousands or even millions of dollars in repayment obligations,” the lawsuit alleges.

La Sota wrote in the suit that the allegations laid out in the Aug. 25 letters from Collins “relied heavily” on a “newspaper article.”

Six people who supposedly made $5 donations to the Lombardo, Collier and Neely campaigns told the Arizona Mirror for an Aug. 25 article that they didn’t make the contributions, and that their information had been falsely used.

‘With 1,000% certainty’: Voters say candidates faked their donations to get public campaign cash

La Sota pointed out in the lawsuit that the people who spoke to the Mirror admitted that the signatures on the false $5 donation slips looked like their signatures. 

He failed to note that all six of them said they had signed unrelated petitions in grocery store or marijuana dispensary parking lots within the past year, and believed their information and signatures had been taken without their knowledge from the petitions. And all of them said that they were certain they never gave any of the candidates $5 to help them qualify for public funding.

The Mirror found that thousands of donors were listed as contributing $5 to all three campaigns on the same days, while hundreds of them had never made a contribution to any other candidate, according to campaign finance reports. 

Collins told the Clean Elections Commission during an Aug. 27 meeting that the Mirror’s reporting confirmed what he had discovered so far in his own investigation. 

Additionally, Collins found that the candidates’ bank accounts showed lump sum deposits equal to the total $5 contributions they said they obtained. For Lombardo and Collier, those deposits were made the same day they applied to receive Clean Elections funding; Neely applied several days after making his deposit. All of the candidates said they had collected the contributions in $5 cash increments over the course of months, but didn’t deposit any of it until months later. 

On Aug. 27, the commission instructed Collins to finish his investigation and to issue his recommendation for or against repayment, and the repayment amount, by as soon as Sept. 24 and no later than Oct. 29.  

In the lawsuit, Lombardo and Collier asked the court to block the Clean Elections Commission from “decertifying” them and ordering them to pay back millions in public campaign funding, saying that it didn’t have the legal authority to do so. 

And they argued that only the Arizona Secretary of State’s Office had the authority to approve or deny funding, based on checks of the candidates’ $5 donations and accompanying information made by the county recorders.

The county recorders notify the Secretary of State’s Office about contributor signatures that don’t match the voter’s file, but neither the recorders nor the secretary of state contact the contributors directly to confirm they made the donations. 

“The Commission has nothing to do with the process for certifying a candidate’s qualification for funding under the (Clean Elections Act),” La Sota wrote. “The Commission is without power to subsequently declare, months after the Secretary of State’s certification has been completed, that a candidate should not have qualified for Clean Elections funding in the first instance and must repay their funds back to the Commission.”

A 2001 legal opinion from then-Arizona Attorney General Janet Napolitano found that the secretary of state has authority to approve or deny Clean Elections funding based on whether candidates submitted enough $5 contribution slips that are signed, dated and correspond with the information of a registered voter. 

“If funding is to be approved or denied for some other reason, however, the Commission would make that determination under its general enforcement power,” she wrote. 

Napolitano’s opinion did not specifically address which entity had the authority to claw back the money if the contributions and the accompanying documentation were later found to be fraudulent. 

La Sota also asked the court to block Collins and the Clean Elections Commission from “continued violations of Plaintiffs’ free speech rights in the form of bullying and intimidation of the Plaintiffs into silencing themselves and effectively suspending their campaigns.” 

He wrote that, because “campaign expenditures are treated as core political speech,” the Clean Elections Commission has violated Lombardo’s and Collier’s free speech rights. 

La Sota did not say which actions the commission took or might take specifically that would violate the candidates’ rights to free speech. 

“Restrictions that burden spending for political speech, whether candidate spending or independent spending, get strict scrutiny and usually fail,” he wrote. 

In addition to the investigation into the candidates’ $5 contributions, Collins also told the commission that he believes Lombardo and Collier both violated campaign finance reporting laws that require them to report all subcontractors by name. O’Neil Printing in Phoenix and Uncle Sam Petitions did work for both campaigns, but neither was listed in their campaign finance reports. 

Collins declined to comment on the lawsuit.