The Arizona Supreme Court has once again nullified efforts by lawmakers to tell Tucson — and all the state’s charter cities — when they can have their elections.
In a 5-1 ruling Wednesday, the justices rejected arguments by Attorney General Mark Brnovich that a 2018 law requiring cities to select their mayors and council members to coincide with statewide elections is constitutional.
Justice Ann Scott Timmer, writing for the majority, said the Arizona Constitution clearly gives cities that have adopted their own charters “autonomy over matters of purely municipal concern.” And she said when cities run local elections fits that definition.
The justices brushed aside claims that the 2018 law does have a statewide interest because the turnout is higher in statewide elections. Brnovich argued that low turnout adversely affects the fundamental right to vote.
“But the attorney general points to nothing about off-cycle elections that erects barriers to voting or treats voters unequally,” Timmer wrote. And she said it’s irrelevant even if low voter turnout at off-cycle election is the result of “disinterest” in municipal issues.
“That does not deprive those voters of their constitutional right to vote,” Timmer said.
Only Justice Clint Bolick dissented.
He said a plain reading of the Arizona Constitution specifically limits the power of charter cities to those issues which have not been precluded by state law. And Bolick said the Tucson off-cycle election runs afoul of that 2018 law.
Wednesday’s ruling ends the latest bid by lawmakers to exert their will on not just Tucson but charter cities.
But it may not be the last.
Sen. J.D. Mesnard, R-Chandler, who has sponsored various efforts to curb the power of cities to set their own election dates told Capitol Media Services he now is looking at putting a measure on the 2022 ballot to amend the Arizona Constitution to mandate consolidated elections. Such a measure, if approved by voters statewide, would trump Wednesday’s court ruling.
Tucson Mayor Regina Romero, who had a simple response.
“Good luck with that,” she said. “It’s sad that Rep. Mesnard is more fixated on overriding the will of Tucson voters instead of addressing the needs of his constituents in his Maricopa County district.”
The fight goes back to 2012 when legislators said cities have to have their elections at the same time voters choose federal, state and county officials. But that was struck down by the state Court of Appeals which said that lawmakers had no statewide interest in interceding in what charter cities decide is a local matter.
The 2018 revision sought to get around the earlier ruling with a declaration calling it “a matter of statewide concern” to boost voter turnout. It directed that cities have to scrap their election dates if turnout at a local-only election was 25% less than the most recent statewide election.
The Tucson turnout in 2019 was 39.3% versus 67% of Tucsonans who had voted in 2018. But the council ignored the law and set the next election for later this year.
Not only did the city refuse to change its election date — voters rejected a ballot measure that year to conform to a statewide schedule — the council specifically set the 2021 primary vote for Aug. 3, with the general election for Nov. 2, 2021.
So Brnovich, at Mesnard’s request, asked the state’s high court to rein in the city, declare the ordinance void and put city elections on an even-year cycle.
The attorney general acknowledged that the Arizona Constitution, adopted in 1912, allows any city with at least 3,500 residents to “frame a charter for its own government.” But he said those rights fall when preempted by state law like the one Mesnard pushed through in 2018.
Timmer, however, said she and the majority of the court read that statewide preemption on local laws to apply only when a city’s actions get into areas of statewide interest.
By contrast, she said, when a city conducts its elections are strictly a question of how a community structures its government. And she said cities may have legitimate reasons for conducting off-cycle elections.
One issue, Timmer said, is the possibility of “voter fatigue,” where discussion of local issues get buried during a statewide election.
“Weighing those considerations implicates a city’s choice for how best to elect its officers,” she said.
Mesnard disagreed that creates valid reasons for cities to have their own elections separate from the state and national campaigns.
“I don’t have a lot of sympathy for the idea that folks can’t break through the noise, given that legislators face a similar phenomenon,” he said, noting they have to run during consolidated elections. And he said the alternative is worse.
“You would have these happening throughout the year, constant commercials or ads or whatever, that I don’t think voters really want,” Mesnard said.
“I think they like the idea of a relatively confined time period during which this happens, whether it’s ads on TV, whether it’s signs around the city,” he continued. “And then they want it to be done.”
Nor was he apologetic about proposing to have voters statewide decide whether to override the decisions made by council members and residents of individual cities about when they want their elections.
“I think it’s OK for the state as a whole to determine what’s good for the state as a whole,” Mesnard said.
Romero disagreed, saying that city residents have determined this is none of the business of those who don’t live there.
“Tucsonans have repeatedly affirmed that that our local elections belong in odd years, which allows for city-focused campaigns and robust public discourse on local issues that would otherwise be overshadowed by federal and state elections on even years.”
Brnovich was more philosophical about Wednesday’s ruling.
He said that, Mesnard’s request, he looked at the Tucson election ordinance and concluded it may violate state law. That required him to ask the Supreme Court to review the matter.
“The justices ruled elections are a matter of purely local concern,” Brnovich said in a prepared statement. “We respect the decision and appreciate the guidance the court has provided.”
Only Justice Clint Bolick dissented from Wednesday’s opinion.
He said a plain reading of the Arizona Constitution specifically limits the power of charter cities to those issues which have not been precluded by state law. And Bolick said that includes the 2018 law enacted by lawmakers.
Charter cities in Arizona:
– Casa Grande