PHOENIX โ Tucsonโs city attorney is arguing that state legislators acted illegally in trying to tell Arizonaโs 19 charter cities when they can have their elections.
In a letter late Monday, Mike Rankin acknowledged that the 2018 state law, on its surface, requires cities to move their elections to even-numbered years if there is a โsignificant decrease in voter turnoutโ compared with statewide and federal elections. That is defined as a 25% drop.
But Rankin, writing to Assistant Attorney General Linley Wilson, said it doesnโt matter what lawmakers mandated. He said the Arizona Constitution โ and the Tucson city charter adopted under its provisions โ specifically empowers the city โto control the method and manner, and specifically the odd-year timing, of its elections for its mayor and council members.โ
Based on that, Rankin said Wilson should dismiss the complaint filed against the city by Sen. J.D. Mesnard, R-Chandler, who wants to force Tucson into bringing its elections in line or face the possible loss of $100 million in state aid.
The next step is up to Wilsonโs boss, Attorney General Mark Brnovich. He has until July 19 to determine who he believes is right.
If Brnovich sides with Mesnard, that will give the city 30 days to come into compliance or lose state aid. The more likely scenario would be that Tucson would ask the state Supreme Court to intercede.
Rankin is confident the outcome would be in Tucsonโs favor, pointing out that Tucson has won legal battles over its right to control its local elections three times before.
This new dispute is a direct outgrowth of the first attempt by lawmakers to bring cities into line. That 2012 law simply said cities have to conform their election dates with dates under state law.
The state Court of Appeals threw out the law, as least as it applies to charter cities, saying it does not trump what charter cities can do on matters of strictly local concern. The judges said there were many reasons why Tucson might choose to have its own off-year elections, including keeping its local issues from becoming entangled with federal and statewide issues on the ballot in even-numbered years.
So in 2016 lawmakers tried a new tactic: Tie a cityโs ability to control its elections to turnout. Proponents argued that the state has an interest in increasing voter turnout. That, they said, gives lawmakers the legal right to tell cities what they can do.
This new version says cities lose their right to set their own election dates if turnout at local-only elections is less than 75% of what it is in a national election.
Tucson city turnout in 2019 was 39%, which Rankin conceded was at least 75% less than the turnout for the 2018 statewide vote. But he said thatโs โan apples and oranges comparison that has no rational basis.โ
He said there are multiple reasons why turnout at a local election may generate fewer voters than a statewide contest, such as whether a race for mayor is uncontested, or even whether a pandemic affects turnout.
And, from a legal perspective, Rankin called the 2018 law โfatally flawed.โ
โIt fails to describe, justify, or provide any other rational basis for, why an election concerning strictly local issues and candidates is of statewide importance so as to allow this state interference and attempted control in the first place,โ he wrote.
Also, after the 2018 law was approved, the Tucson mayor and council decided to put the issue to voters, asking them at the regularly scheduled election that year whether to move elections to even-numbered years. The measure, Proposition 108, was rejected with 42.2% in favor and 57.8% opposed.
โThe legislature has many options to choose from in seeking to increase voter turnout,โ Rankin wrote. โBut these options do not include removing from Tucsonโs voters their constitutionally granted charter authority to determine whether they want their municipal elections shaped by state, county, or federal partisan issues.โ
