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AG sues to end Tucson’s odd-year election cycle

In this Feb. 16, 2016, photo, the sun shines behind buildings in downtown Tucson. Attorney General Mark Brnovich is trying to force the city to align local elections with regular state balloting. ARIZONA CAPITOL TIMES FILE PHOTO

In this Feb. 16, 2016, photo, the sun shines behind buildings in downtown Tucson. Attorney General Mark Brnovich is trying to force the city to align local elections with regular state balloting. ARIZONA CAPITOL TIMES FILE PHOTO

Attorney General Mark Brnovich is asking the Arizona Supreme Court to force Tucson to align its local elections with regular state balloting.

The lawsuit filed August 26 follows a conclusion by Brnovich in July that cities have no legal right to maintain their own election dates when turnout is low.

Tucson officials disagree and have refused to budge. So now the attorney general hopes to force the issue.

But it remains to be seen whether Brnovich will have any better luck in court than he had before.

At the heart of the battle is a 2012 law that declared that all elections must be conducted in even-numbered years, and only on dates spelled out by the Legislature. But the state Court of Appeals concluded that there were no legislative findings to support the action overriding the decisions of charter cities like Tucson.

Mark Brnovich (Photo by Gage Skidmore/Flickr)

Mark Brnovich (Photo by Gage Skidmore/Flickr)

Undeterred, lawmakers returned with a 2018 version containing the same requirement – but with a twist. This law applies only when turnout for local elections is at least 25% lower than what happened at the most recent statewide vote.

As it turned out, the turnout for the city’s 2019 vote was 39.3%, compared to more than 67% for the 2018 statewide race.

Not only did the city refuse to change its election date, the council earlier this year specifically set the 2021 primary vote for August 3, with the general election for November 2, 2021.

So Brnovich wants the state’s high court to rein in the city, declare the ordinance void and put city elections on an even-year cycle.

Assistant Attorney General Linley Wilson acknowledged that Tucson is a “charter city,” empowered by the Arizona Constitution to enact its own laws and ordinances on matters of local concern. But she said there are limits to that, particularly when the Legislature decides to impose state laws.

“Allowing cities to legislate without prior state approval is not the same thing as allowing cities to override state law,” Wilson wrote. “The (Arizona) Constitution expressly provides that the powers of the charter cities are subject to this constitution and laws of the state.”

What that means, she said, is when there is a conflict between state law and a local charter, as there is in this case, it is up to the court to determine whether the matter is “of purely municipal concern” and whether state law supersedes the local enactment.

Tucson has won some other battles in that conflict between state and local laws.

The Supreme Court has ruled that Tucson is entitled to maintain its own unusual “modified ward” council system, where candidates are nominated from each of the city’s six wards but have to stand for general election on a statewide basis.

And Tucson has successfully defended having partisan city elections despite a state law requiring that local elections be conducted on a nonpartisan basis.

There was no immediate response from city officials.

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