As noted earlier, on January 14, U.S. District Court Roslyn Silver, a Clinton appointee, had issued a tentative opinion holding that part of the Arizona public funding program is probably unconstitutional. On January 20 the judge issued a final opinion. She said that the unconstitutional part of the law cannot be severed from the main part of the public funding program, so she issued an injunction against the entire program for 2010. Here is the new decision. It is the same as the old, tentative opinion, except new material is added starting on page 18.
However, she stayed her own injunction, to give the state an opportunity to ask the 9th circuit to weigh in. It is possible the 9th circuit will maintain the stay. If the 9th circuit does not do so within 10 days, then the stay will be lifted, and the program can’t be in effect in 2010.
The part of the public funding law that is unconstitutional is the part that gives extra public funding to candidates who have opponents who are not using public funding and who raise a large amount of private money. In other words, public funding is fine if it gives every participating candidate public money, in accordance with a neutral formula that treats all candidates alike. But once the public program starts giving extra amounts of money because of some characteristics of the opponents of the publicly-funded candidate, that is not constitutional. Thanks to Rick Hasen’s ElectionLawBlog for the link to the new decision.