AZ Supreme Court Upholds Tucson’s Off-Cycle Election System

Today the Arizona Supreme Court held that the Arizona Legislature cannot force charter cities like Tucson to consolidate their elections onto a even year (or “on-cycle”) election system, thwarting the Legislature’s most recent effort to corral Tucson into electoral conformity.

The case stems from a long-running dispute regarding the propriety of Tucson’s off-year electoral system. In response to a 2014 Court of Appeals decision that held the Legislature could not force charter cities onto a even year election cycle simply by declaring the issue a matter of “statewide concern.” the Legislature amended A.R.S. § 16-204.01 in 2018 to again require charter cities to consolidate their elections but now tied that transition to a documented finding of low voter turnout. The amended statute provides:

A. After consideration of the court’s opinion in City of Tucson v. State, 235 Ariz. 434 (Ct. App. 2014), the legislature finds and determines that it is a matter of statewide concern to increase voter participation in elections, including elections for cities . . . and the legislature finds and declares that if cities . . . demonstrate low voter turnout in elections that are not held on the consolidated election dates . . . , the low voter turnout constitutes sufficient factual support for requiring candidate and other elections to be held on certain specific consolidated dates. The legislature further finds and declares that after evidence of low voter turnout in city . . . , increasing voter turnout through the use of consolidated election dates . . . is a matter of statewide concern. This section preempts all local laws, ordinances and charter provisions to the contrary.

B. A political subdivision shall hold its elections on a statewide election date if its previous elections on a nonstatewide election date resulted in a significant decrease in voter turnout in that political subdivision.

Tucson experienced a “significant decrease in voter turnout” in 2019 (as that term is defined) compared to statewide turnout in the 2018 election, thus triggering the consolidated election statute. Nonetheless Tucson passed an ordinance calling for its elections to be held off-cycle in 2021, consistent with its charter. The Attorney General filed a special action in the Arizona Supreme Court challenging Tucson’s ordinance as unconstitutional. Oral argument was held on January 12 and the decision was issued today, April 14, 2021, with Justice Timmer writing for the majority.

The Supreme Court began by reaffirming its prior decisions that: 1) state statutes may only preempt conflicting charter provisions on matters of “statewide concern”; and 2) the “manner and method of conducting elections” in a charter city is a matter of “purely municipal” concern.

Here, the dates on which elections are conducted were found to implicate the “manner and method of conducting elections” and thus could not be preempted by state statute.  The Court rejected the State’s contention that it had an interest in voter turnout at the local level. In particular, the Court found that low voter turnout does not implicate the fundamental right to vote, does not erect barriers to voting or treat voters unequally, and does not call into question the integrity of the electoral process. To be sure, the Legislature would be authorized to preempt election dates if the local election schedule threatened “free and equal elections” under Ariz. Const. art. 2, § 21 or the “purity of elections” under Ariz. Const. art. 7, § 12, but that was not the case here.

Justice Bolick dissented, arguing that the Supreme Court’s constitutional jurisprudence since 1951 has been “cacophony-producing” because it valued “how we think [the framers] mean to write it” instead of “interpreting the Constitution as written.” The plain language of Ariz. Const. art. 13, § 2, Justice Bolick contends, makes clear that every city charter must be consistent with state law or is otherwise preempted. “When the framers of a constitutional provision produce words of such striking clarity, our job as constitutionally constrained judges is simple: to enforce them.” Absent from Article 13 is any exception for “matters of purely municipal concern.” Five justices disagreed with Justice Bolick, however.

This is yet another victory for charter cities in their defense against the Legislature’s occasional attempts to achieve greater uniformity in election practices across the state. But this decision will not end such legislative efforts. Inevitably within a few years, the next statute will be enacted and the next lawsuit surely will be filed.

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