Arizona Daily Star

PHOENIX — The Citizens Clean Elections Commission refused Thursday to call off an investigation into whether a commercial aimed at Scott Smith was really designed to undermine his gubernatorial bid.

Attorney Jason Torchinsky argued to commissioners that the ad, produced and paid for by the Legacy Foundation Action Fund, was simply a bid to educate voters — Mesa residents in particular — about positions taken by the U.S. Conference of Mayors on controversial issues. Smith had been the organization’s president.

And he said the fact that the commercial ran in March and April, long before early voting for the Republican primary started Thursday, shows it was not aimed at persuading people how to vote.

Thomas Collins, the commission’s executive director, acknowledged that the commercial never expressly told viewers how to mark their ballots.

But he said the ad, which depicted Smith and the mayors’ group agreeing with President Obama on things like the Affordable Care Act, gun control and climate change, clearly was designed to influence voters.

“This advertisement, in context, has no meaning other than to advocate against Smith for governor,” he told commissioners at their Thursday meeting. “Other possible meanings are not reasonable.”

Thursday’s decision by the commission does not end the matter.

The commission still has not voted specifically to uphold Collins’ position. Such a vote would require the organization to disclose who funded the commercial.

The panel also deferred action on the related question of whether the commercial was illegally coordinated with Doug Ducey’s own gubernatorial campaign.

There is evidence that some of the same people who did work for Ducey were also involved in producing this commercial. If the commission finds there was coordination, that makes any funds spent on the commercial a contribution to Ducey, which not only has to be reported but also is subject to dollar limits.

The entire issue, however, could become moot. The Legacy Foundation has filed suit in Maricopa County Superior Court asking a judge to rule that any effort by the commission to declare the commercial to be campaign-related is illegal. A hearing on that is set for next week in front of Judge David Cunanan.

While the spot is rife with links connecting Smith, the Conference of Mayors and Democratic and Obama’s positions on issues, Torchinsky said none of this made the commercial an effort to affect the election.

He said that while the timing may have coincided with when Smith was resigning as mayor of Mesa to launch his gubernatorial campaign, that still does not make the commercial campaign-related. He said it stopped airing months before early voting started, though it remains available on YouTube.

There’s a separate legal issue of whether the commission can look at the question about coordination of that commercial with the Ducey campaign.

Attorney Mike Liburdi, who represents Ducey, contends the commission has jurisdiction only in cases in which candidates accept public funding. But both Ducey and Smith, whose attorney filed the complaint of illegal coordination, are running with private dollars.

Collins and the commission have taken the position that the 1998 voter-approved law creating the commission and setting up optional public funding gives them the power to enforce virtually any election law.