Victory for the City of Tucson over ‘Paton’s Law’

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Posted by AzBlueMeanie:

They would deny it of course, but it looks as if the Arizona Court of Appeals, Division Two, was waiting for the Tea-Publican legislature to declare sine die before issuing its opinion in City of Tucson v. Southern Arizona Leadership Council and Jonathan Paton today, a case determining the constitutionality of "Paton's Law."

The holding of the Court of Appeals:

The city argues the court erred because the Tucson city charter regarding local elections supersedes the legislature‟s 2009 amendments to A.R.S. § 9-821.01. Because the method and manner of conducting municipal elections is solely a matter of local concern, we reverse and remand.

You can read the 24 page opinion by Chief Judge Joseph W. Howard here. http://www.apltwo.ct.state.az.us/Decisions/CV20100083%20Opinion.pdf.

Highlights from the legal analysis of the Court of Appeals:

  • Under the Arizona Constitution, a city with a population over 3,500 is entitled to establish a charter for its government. Ariz. Const. art. XIII, § 2. Our supreme court has held that this charter generally grants a city autonomy over matters of solely local concern. See, e.g., Strode v. Sullivan, 72 Ariz. 360, 364-65, 236 P.2d 48, 51 (1951). Thus, if a state law conflicts with the provisions of a city charter and if the relevant interest is solely local, the city's charter supersedes the statute. Id.
  • On the other hand, if the interest affected is of statewide concern, the statute will supersede the conflicting provisions of the city charter. Id. at 363, 236 P.2d at 50. Therefore, to the extent there is a conflict, we must determine whether the issues are local or statewide.
  • Tucson City Charter, ch. XVI, § 2. Addressing the administration of the city's primary elections and nomination of officers, this section incorporates state election law, found in title 16, A.R.S. Id. The state election laws address, inter alia, partisan primary elections. See, e.g., A.R.S. § 16-502(B), (C). And, although the state is correct that the statutes also address nonpartisan nomination of candidates, see A.R.S. § 16-314(A), (C), the city charter's incorporation of the statute on partisan elections is sufficient to demonstrate that, at a minimum, the charter permits partisan primaries.
  • [T]he city contends § 2 does not incorporate § 9-821.01, and its “interpretation of its own Charter is entitled to some weight.” City of Tucson v. State (City of Tucson), 191 Ariz. 436, 437, 957 P.2d 341, 342 (App. 1997).
  • Tucson City Charter, ch. XVI, § 2. Section 9-821.01 is not a general election law; rather it is directed toward cities and is included in title 9, which is entitled, “Cities and Towns.” Additionally, even if the last sentence required more general compliance with state law, as the state contends, it would apply only to primaries, and the conflict would continue as to the partisan general elections. Therefore, the city's charter does not incorporate § 9-821.01.
  • Tucson City Charter, ch. XVI, § 7… does not support the state's position because it is a gap-filling provision that incorporates the general election laws concerning state and county offices when there is no counterpart in the city's charter. Section 9-821.01, on the other hand, governs solely municipal elections. Section 7 of the city's charter, therefore, does not incorporate § 9-821.01.
  • Thus, at a minimum, and notwithstanding the amendments to § 9-821.01, the city's charter does allow partisan elections through its incorporation of state election law. See Tucson City Charter, ch. XVI, §§ 2, 7. And the city has been conducting partisan elections for some time. So the statute's prohibition of partisan elections, in fact, interferes with the city's authority to control its municipal affairs. Because the statute conflicts with provisions of the city's charter concerning both issues, the relevant determination is whether the interests affected are statewide or local.
  • In Strode, our supreme court did not apply any particular test but stated that it could “conceive of no essentials more inherently of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected.” 72 Ariz. at 368, 236 P.2d at 54. The court went on to hold “that the method and manner of conducting [municipal] elections . . . [are] peculiarly the subject of local interest and [are] not . . . matter[s] of statewide concern.” Id. Strode, therefore, is the touchstone of our analysis.
  • In determining whether a concern is statewide or local, this court does give some deference to a statement of legislative intent. City of Tucson, 191 Ariz. at 439, 957 P.2d at 344. But “we must not merely rubber-stamp the legislature‟s decision.” Ariz. Ctr. for Law in the Pub. Int. v. Hassell, 172 Ariz. 356, 369, 837 P.2d 158, 171 (App. 1991).
  • [T]he statement [of legislative intent] does not identify separately what statewide interest “the conduct of elections” in § 9-821.01 purportedly protects. Consequently, our deference in this regard is minimal. Cf. Wonders v. Pima County, 207 Ariz. 576, ¶ 9, 89 P.3d 810, 813 (App. 2004) (state law can preempt city ordinance only when intent to preempt clearly stated).
  • The state argues, however, that § 9-821.01 seeks to protect statewide interests not described in the statute's statement of intent—preventing voter discrimination and promoting good governance, both of which it contends were raised in legislative debates. But neither of these issues was included specifically in the legislature's statement of intent. And "comments of individual legislators 'are not necessarily determinative of legislative intent.'" State v. Payne, 223 Ariz. 555, n.4, 225 P.3d 1131, 1139 n.4 (App. 2009), quoting Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 13, 150 P.3d 773, 777 (App. 2007).
  • [B]ecause we would have to determine whether a statute protects a statewide interest even in the absence of a statement of intent, see Strode, 72 Ariz. at 362-64, 236 P.2d at 49-51, we consider each issue in turn to determine whether any statewide interests exist that would remove these issues from the holding in Strode.

Nonpartisan Elections

  • This case is in part the flip side of the Strode coin. And we are bound by the decisions of the Arizona Supreme Court. City of Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993). We conclude, therefore, that the concern here is local and that Strode controls this issue.
  • The nonpartisan requirement in § 9-821.01(B), on the other hand, is directed at municipalities and does not advance any identified statewide interest under Strode.
  • Furthermore, although Strode does not categorically prohibit all legislation regarding local elections, its holding covered one of the precise issues raised here—partisan elections—and went on to state that the “method and manner of conducting [municipal] elections” is primarily an issue of local concern. See 72 Ariz. at 368, 236 P.2d at 54.
  • [B]ased on the constitution, the [city] charter is the “organic law” of the city. Ariz. Const. art. XIII, § 2. So even if the legislature determines generally that nonpartisan elections are a better form of municipal government, Tucson voters have the right to make their own choice in that regard. Consequently, this interest is not sufficient to remove this case from Strode's holding and reasoning. Therefore, the city's charter supersedes § 9-821.01(B), the provision requiring nonpartisan municipal elections.

At-Large Elections

  • [T]he state asserts it has a constitutionally mandated interest in ensuring the integrity and fairness of the democratic process, which is not diminished depending on whether it involves municipal, as opposed to statewide, elections.
  • The asserted interest is that the city‟s at-large elections could be found to be in violation of the [Voting Rights Act] VRA, preventing the state from making use of the bailout provision.
  • We must, therefore, determine whether the interests advanced by the state remove this issue from Strode's holding.
  • To invoke [the bailout] provision, Arizona would be required to show that, for the last ten years, it had not, nor had any political subdivision within its territory, engaged in any discriminatory voting practice. § 1973b(a). The state would be required to show, inter alia, that it had “eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process.” § 1973b(a)(1)(F).
  • Section 9-821.01(C), however, is not a blanket prohibition on at-large elections, as the state asserts. It is, rather, a prohibition of the kind of at-large elections currently conducted by the city—ward-based primaries followed by at-large general elections for city council. See § 9-821.01(C). The state acknowledges that only Tucson used this system at the time the statute was amended.
  • But nothing in the statute would prohibit the City of Tucson or any other city from implementing at-large elections. As a result, to the extent that a prohibition on at-large elections may enhance the state's chances of securing a bailout, § 9-821.01(C) does not mandate such a prohibition.
  • Furthermore, the prohibition does not apply to counties. See id. Consequently, the measure the legislature enacted does not meaningfully support the state‟s purported interest under the VRA.
  • The state asserts an interest in fair elections outside the VRA. Article II, § 21 of the Arizona Constitution[.] … At-large elections do not always dilute votes and are not per se unconstitutional. See Thornburg v. Gingles, 478 U.S. 30, 48 (1986).
  • [N]o evidence of such discriminatory effects have been either alleged or shown in Arizona. Furthermore, because the legislature did not meaningfully limit at-large elections, the statute does not combat any potential discriminatory effect, nor does it, therefore, ensure that elections will be “free and equal,” Ariz. Const. art. II, § 21, protect the “purity of elections,” or “guard against abuses of the elective franchise,” Ariz. Const. art. VII, § 12. Consequently, this asserted state interest is not valid and does not support enforcement of this statute against the city.
  • The only possible remaining state interest is in preventing the will of the citywide majority from overruling the will of the majority of the ward's electors. But the state has identified no interest in, or any benefit it receives by, preventing this situation from developing in its cities. And this interest again invades the area our supreme court has held to be one of solely local interest—the relationship between the charter city and its voters. See Strode, 72 Ariz. at 368, 236 P.2d at 54[.]
  • It is up to the supreme court to redefine the limits of the legislative authority in this area, should it choose to do so. Consequently, in light of Strode, we hold that § 9-821.01(C) does not apply to the City of Tucson because the state's interests in requiring the city to hold ward-based general elections do not trump the city's charter providing otherwise.

Reply to Dissent

  • Our dissenting colleague concludes that the invocation of the bailout provision of the VRA is a “legitimate” and “strong” state interest. Although we agree that the VRA could—not would, as our dissenting colleague suggests—provide a satisfactory state interest, in this case it does not.
  • First, the bailout provision of the VRA was not mentioned in the legislative hearings, the statement of intent, the amendments themselves, the trial court, or the original briefs filed in this appeal. Rather, it was mentioned for the first time at oral argument. Consequently, we are not dealing with an expression of legislative intent but with an after-the-fact justification by skillful counsel.
  • Second, the legislative hearings make it clear that these amendments were an attack on the city's form of government rather than any attempt to protect the state's opportunity to bailout from the preclearance requirements of the VRA. And statements during the hearings make it clear that Tucson is the only city to employ this system and that the bill does not impact counties.
  • Third, and most importantly, the amendments prohibit at-large elections only when a city or town “provides for election of city or town council members by district.” As explained above, the statute does not restrict the entirely at-large elections that have been attacked as discriminatory by the Department of Justice. Therefore, the amendments fail to support the purported justification based on the VRA.

Conclusion

In light of the foregoing, we reverse the trial court‟s grant of summary judgment in favor of the state and remand the case for entry of summary judgment in favor of the city.

Presiding Judge J. William Brammer. Jr. concurred in the opinion. Judge Philip G. Espinosa concurred in part, and dissented in part — on the basis of the Voting Rights Act (VRA) arguments to which the opinionabove replied.

Judge Espinosa was far too deferential to the state's "Hail Mary" pass that the majority opinion correctly dismissed as specious at best:

[T]he bailout provision of the VRA was not mentioned in the legislative hearings, the statement of intent, the amendments themselves, the trial court, or the original briefs filed in this appeal. Rather, it was mentioned for the first time at oral argument. Consequently, we are not dealing with an expression of legislative intent but with an after-the-fact justification by skillful counsel.

This opinion is a complete and total defeat for the Viceroy of Tucson, Jonathan "Payday" Paton. He should resign from the Rio Nuevo Board, tuck his tail between his legs, and slink away from the City of Tucson never to be heard from again.