Attorneys for Tucson are asking the Arizona Supreme Court to void a 2018 law that seeks to force the city to scrap its odd-year elections.

 Mamta Popat / Arizona Daily Star

Tucson is asking the Arizona Supreme Court to void a 2018 state law that tries to force the city to scrap its odd-year election schedule.

The measure approved by the Republican-controlled Legislature fails to recognize that Tucson voters adopted a charter as they are allowed to do under the Arizona Constitution, an attorney for the city said in new court filings.

That puts matters of “strictly local concern” like how to run elections out of reach of state lawmakers, said the attorney, Jean-Jacques Cabou.

He also dismissed state officials’ claim that they have a legitimate interest in promoting increased voter turnout.

Hanging in the balance most immediately is whether Tucson’s scheduled 2021 election for council members in three of its six wards goes off as scheduled.

But the justices’ ultimate ruling also will determine how much latitude the state’s 19 charter cities have in deciding how and when to choose their leaders without legislative intervention.

The justices are scheduled to consider the issue in December.

Republican lawmakers have been trying for years to force cities to conform their election dates to the state schedule.

The first effort, a 2012 law, was struck down by the state Court of Appeals as the judges said charter cities have a constitutional right to decide issues of local concern. Other proposals also failed to pass legal muster.

In 2018, legislators tried an end run, declaring it is “a matter of statewide concern” to consolidate election dates. That law contained a trigger, saying charter cities could keep their own schedule only if turnout at local elections did not fall more than 25% below the local turnout in the most recent statewide races.

Tucson did not meet the test, with its 2019 election turnout at 39.3% versus 67% of Tucson voters who cast ballots in 2018. But city leaders chose to ignore the law and scheduled the next election for 2021.

Find more Barrio Viejo homes at tucson.com/barrioviejo (Video by Gloria Knott, Arizona Daily Star)

Republican Attorney General Mark Brnovich said the city was acting illegally and asked the Supreme Court to intercede.

In the new legal filings, Cabou told the justices this new version is no more legal than prior efforts.

“Our state is among a very few in which the powers of charter cities stem not from acts of the legislature, but instead from the same constitution that created the legislature itself,” Cabou wrote.

He said that courts, in prior legal fights between Tucson and Brnovich, ruled charter cities have autonomy in structuring their own governments, including “the method and manner of conducting elections in the city.”

The 2018 law didn’t change any of that, even with the triggers about voter turnout, Cabou said.

“The legislature impermissibly seeks to substitute its policy choices for those of the city,” he wrote.

He pointed out that the Tucson City Council put a measure on the November 2018 ballot asking city voters if they wanted to go to even-year elections. The measure was defeated with 42.2% in favor and 57.8% opposed.

Cabou does not dispute the lower turnout in the most recent city election, but he called it irrelevant. “The state simply lacks an interest in the turnout for elections in charter cities,” he said.

There are good reasons for having separate local elections, he told the justices.

“Removing all other county, state and federal elections from the ballot thus allows the city to obtain the full focus of the electorate and insulate its electoral processes from the influence of partisan issues that are inevitably interwoven with federal, state, and county elections,” he said. “With this full focus, the local community and electorate are more informed on the local matters coming up for a vote at the city’s election.”

If Tucson elected its council members at the same time as federal and state candidates, they would all end up at or near the bottom of the long ballot, he said.

Cabou also pointed out the Arizona Constitution bars enactment of special laws regarding the conduct of elections.

What is legal, Cabou said, are laws that can be applied not only to all situations but that also are “elastic.” That means any city that finds itself subject to the law has a way of extracting itself by changing policies or anything else so it no longer meets the conditions.

Here, however, Cabou noted that the law is permanent: Once a city’s turnout drops below a trigger point, the city can never get back its local election dates, even if future turnout improves.

Finally, Cabou said implementing the law would mean the mayor and some people now serving on the council would have their terms extended to five years as part of the transition to an even-year cycle, overruling the decision of voters to put them in office for just four years.

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