Donors to non-profit organizations in Arizona have a target on their backs, all because of a 2022 state law that requires those groups to disclose their donors’ personal information, including their names and addresses to the government. The Goldwater Institute is fighting back in a case set to be argued before the Arizona Supreme Court on Sept. 11—and it’s a decision that could have national implications.
That law is Proposition 211, and it is an affront to the freedom of speech and association, and a veiled attempt by activists to muzzle their political opponents by intimidating them into silence. It is well documented that disclosure mandates in other states have led to attacks against nonprofits and their supporters.
The Goldwater Institute sued the Arizona Secretary of State and the Arizona Clean Elections Commission behalf of the Center for Arizona Policy and the Arizona Free Enterprise Club in December 2022. It will argue before the Arizona Supreme Court that the Arizona Constitution forbids the state from stripping people of their privacy for supporting causes in which they believe. The Arizona Constitution provides stronger protections for freedom of speech and privacy than even the U.S. Constitution.
“There are few rights more precious to Arizonans than their right to free speech and privacy,” said Goldwater Senior Attorney Scott Day Freeman. “The anti-privacy law undermines these freedoms by telling people that if they dare to support organizations that take policy positions, they have to give up their confidentiality and potentially become a target for retaliation and even violence.”
But the case’s implications reach far beyond Arizona’s borders. If the court strikes down the law as unconstitutional, its decision could offer the first clear roadmap for mounting state constitutional challenges to donor disclosure laws across the country.
Prop 211, or the Voters’ Right to Know Act, targets what it calls “campaign media spending,” but its definitions are so sweeping that a citizen will appear on a publicly available government database simply for donating to a nonprofit that speaks about a ballot measure or mentions an incumbent lawmaker near an election. Proponents say it’s about “transparency,” but transparency is for the government. Privacy is for individuals.
A lower court rejected Goldwater’s arguments, holding that depriving donors of their privacy rights serves the government’s interest in “having an informed electorate.” If donors don’t want to lose their confidentiality, the court reasoned, they can “opt out of contributing to campaign media spending.” That’s just not true, says Andrew Gould, a former Arizona Supreme Court Justice who now practices law at Holtzman Vogel and also represents the plaintiffs.
“Even under the law’s ‘opt-out’ provisions, some donors’ information must still be made public, and donors don’t really have a way of controlling how an organization spends donations, which means they can’t really control whether their information is made public,” Gould says.
For decades, courts have recognized that the right to private association is essential to freedom and protected by the U.S. Constitution. In a landmark 1950s case, the U.S. Supreme Court rejected Alabama’s requirement that the NAACP turn over its membership list to the government, part of the state’s effort to ban the civil rights group.
Despite that ruling, attacks on donor privacy — like Prop 211 — are on the rise. The Goldwater Institute is leading the nation in fending off those attacks.
In 2018, Goldwater supported a law in Arizona that prevented the government from requiring nonprofits to hand over their donor lists as a condition of speaking on issues of public importance. Goldwater has also sued governments in Rio Grande, New Mexico, and Denver, Colorado, over city ordinances that mandated similar disclosure requirements.
This will be the Goldwater Institute’s 13th time defending constitutional rights before the Arizona Supreme Court.
You can find out more about the case here.
