Supreme Court to decide on Tucson election law

(AP Photo/Matt York)

Cities that maintain their own election dates despite lower turnout are violating state laws, Attorney General Mark Brnovich has concluded.

And now his office is going to sue Tucson at the state Supreme Court to force it to repeal its odd-year election ordinance.

In a 20-page analysis Friday, Linley Wilson, the state’s deputy solicitor general, acknowledged that the Arizona Constitution gives the state’s 19 charter cities the right to regulate matters of “purely local concern.” And she noted that the state’s high court has, in fact, overruled prior efforts to force Tucson to conform its election schedule to even-numbered years.

But Wilson, who works for Brnovich, pointed out the latest bid by the Republican-controlled legislature to rein in Tucson and other charter cities has verbiage saying that increasing voter turnout through consolidated elections “is a matter of statewide concern.” And based on that, she said the attorney general’s office has concluded that this new version of the law is constitutional and enforceable.

Mark Brnovich

Wilson also said lawmakers had another legitimate reason to step in. She said there is evidence that low-turnout elections tend to favor special interests.

Even with all that, though, Wilson conceded that this conclusion isn’t a slam-dunk. In fact, she said, based on prior state Supreme Court rulings on local elections “it is not unreasonable for the city to argue, relying on (that ruling), that the ordinance governs a matter of purely local concern and therefore supersedes state law.”

So rather than demand the city rescind the ordinance or face the loss of more than $100 million in state aid, Brnovich’s office will file suit to ask the Supreme Court to decide, once again, how much leeway charter cities have in setting their election dates.

In responding to the findings, Tucson Mayor Regina Romero called the law “another attempt by our state legislature to micromanage and undermine our ability to self-govern as a city.”

But City Attorney Mike Rankin said the issue was likely to wind up before the Supreme Court eventually even if Brnovich were not doing his own inquiry.

He pointed out that the city preemptively filed its own complaint last month asking a Pima County Superior Court judge to rule that Tucson, as a charter city, has the authority to set its own election dates. And whoever lost that case in trial court was likely to appeal.

Lawmakers have been trying for years to exert their will on not just Tucson but charter cities.

That included a 2012 law requiring consolidated election dates. But in a legal fight with Tucson, the state Court of Appeals barred enforcement of that law, at least as it applied to charter cities, concluding they have a constitutional right to decide issues of local concern and lawmakers had no statewide interest in interceding.

That led to a 2018 revision of the state law. It sought to get around the earlier ruling by declaring “it is a matter of statewide concern to increase voter participation in elections, including elections for cities.” That law also had a trigger, forcing even-year elections if turnout at a local-only election was 25 percent less than the most recent statewide election.

Regina Romero

Turnout in Tucson’s 2019 election was 39.3 percent, versus 67 percent of Tucsonans who had voted in 2018. But city officials ignored the law, setting the next election for 2021.

Romero has previously said this wasn’t just a decision by the council.

She noted the issue of maintaining off-year elections was put to voters in November 2018, after the new state law was adopted. It was approved by a margin of 58-42 percent.

The decision to set a 2021 election led to a complaint to Brnovich by Sen. J.D. Mesnard, R-Chandler, asking him to rule that Tucson had overstepped its bounds and should be forced to repeal its election-date ordinance or forfeit state aid.

Wilson said Mesnard is correct.

“Election dates are not a matter of purely local concern because they implicate the statewide interest in increasing voter turnout, among other interests,” she wrote. “The state has an interest in protecting the right to vote of its citizens by ensuring that cities encourage voter turnout through the alignment of election dates.”

Beyond that, Wilson argued that consolidated elections — and the higher turnout — are necessary “in safeguarding the integrity of elections.”

She cited a 2010 study published in the University of Chicago Law Review which addressed what the researchers called the higher “marginal cost to voters” of local-only elections.

“Consequently only those voters with the greatest stake in the electoral outcome turn out, a phenomenon we label ‘selective participation,’ ” the authors wrote. “When there is selective participation in a low turnout election, policy outcomes will be more favorable to special interests than they would be if the same government were elected in a high turnout election.”

Wilson said that helps explain his conclusion that the 2018 law is constitutional and enforceable even though the Supreme Court voided the 2012 version.

The key, she said, is that the new version is triggered by an actual reduction in voter turnout from elections in even-numbered years. And she pointed out that cities are free to keep their own election cycles as long as they do not produced a “significant decrease in voter turnout.”

The fight over election dates isn’t the only time state lawmakers have tried to tinker with local elections.

In 2009, the legislature voted to forbid cities from having partisan elections for mayor and council. The same law also would have voided Tucson’s modified ward system in which council candidates are nominated from each ward but elected citywide.

But the Arizona Supreme Court voided that law in 2012, ruling that the Arizona Constitution gives charter cities special rights to control their own local matters.

Charter cities in Arizona:

Avondale

Bisbee

Casa Grande
Chandler
Douglas
Flagstaff
Glendale
Goodyear
Holbrook
Mesa
Nogales
Peoria
Phoenix
Prescott
Scottsdale
Tempe
Tucson
Winslow