State lawyers for the Arizona Citizens Clean Elections Commission contend that Rep. David Burnell Smith should resign because he "completely flouted" campaign spending laws and "gamed the system" during the 2004 Republican primary.
However, Smith argues the state is ignoring his latest attempts to show he did nothing that warrants such a harsh penalty.
Smith, a Scottsdale attorney, is fighting the commission’s unprecedented attempt to force him from office, as well as to return $34,625 in campaign funding and pay a $10,000 fine. Smith and the commission filed new papers late Friday to make their cases before administrative law Judge Daniel Martin.
On behalf of the commission, the Arizona Attorney General’s Office accused Smith of trying to hide spending beyond state limits in the September 2004 primary by waiting to pay key campaign bills until he qualified for additional public funds for the November 2004 general election.
The additional primary spending was critical, said assistant attorney general Diana Varela, because Smith was running in District 7, where Republicans have a large edge in voter registration. That means legislative races usually are determined in the GOP primary, even if there are Democrats or independent candidates, Varela said.
"He did whatever he thought necessary to win, including overspending his adjusted primary spending limit by almost 20 percent," wrote Varela.
The commission says that much overspending triggers a section of the Clean Elections law requiring Smith’s removal from office.
Smith "gamed the system and gave himself a competitive edge that the (law) was meant to eliminate," Varela wrote.
But the lawmaker argues a new set of campaign finance reports he filed last month shows he never overspent. The new reports corrected errors made by Smith’s former campaign treasurer and reveal Smith never spent more than was in his bank account, said Smith’s attorney, Michael Richard.
Also, the commission first learned of possible overspending when Smith came forward shortly after the September primary, Richard said. Smith’s prior admission, based on statements from his former treasurer, contradict the state’s claims he was trying to hide any information, Richard said.
Martin is expected to recommend by late August if the commission should keep its March order intact. Unless the commission reverses itself, Smith has promised to take his appeal to the courts.