Legislature/Governor Can’t Tell Tucson When To Hold Its Council Elections, Arizona Supreme Court Says

The Arizona Supreme Court today struck down the Legislature’s most recent attempt to tell Tucson – and, other charter cities – how and when to conduct their local elections. Tucson has set its next City Council elections for this “off-cycle” year of 2021, and now will not be forced to change it to coincide with statewide (and Presidential) elections.

Tucson has indicated that it prefers the off year elections so that the choices do not get shoved down to the bottom of an often-long ballot. However, the trade-off is that voter turnout is lower for the city elections. In part of an ongoing effort to change the Democratic-dominated Tucson City Council, the Legislature recently (2018) passed a law stating that IF there was a “significant decrease in voter turnout”, the Attorney General could force the city to switch their election dates.

Writing for the 5-1 Court majority, Vice Chief Justice Ann Timmer said that “the decision whether to hold municipal elections on cycle or off cycle is a matter of purely municipal concern. If a city’s charter authorizes the city to make that determination, state law cannot preempt the resulting decision. Section 16-204.01 is therefore unconstitutional as applied to the City’s charter and cannot preempt its election-scheduling provision.”

We disagree with the Attorney General for two reasons. First, whether the City conducts on-cycle or off-cycle municipal elections affects the City’s autonomy in structuring its government. Just as deciding whether to conduct partisan elections or combine ward-based primaries with at-large general elections forms part of a charter city’s determination on how to structure its government, so too does determining whether to conduct on-cycle or off-cycle elections. Logically, of course, scheduling elections is an integral and indispensable part of conducting those elections and selecting city officers. Beyond that, policy reasons exist for and against conducting off-cycle elections. See Tucson III, 235 Ariz. at 438–39 ¶¶ 14–16 (listing competing policy considerations concerning voter focus, voter turn out, voter fatigue, and candidate competition for election resources). Weighing those considerations implicates a city’s choice for how best to elect its officers.

As expected –  given his previous opinions – Justice Clint Bolick dissented. He argues that the Supreme Court began misinterpreting the relationship between the state and charter cities back in 1951 and are continuing down that misguided and meandering path. (The first 1 1/2 pages of the dissent recount a story about a meandering farmer and frustrated carpenter.)

As noted, this is not the first time that the GOP-dominated Legislature has tried to change Tucson’s election patterns. In fact, the law struck down today followed a Court of Appeals opinion that struck down a 2012 law requiring Tucson to switch. (And, today’s opinion will become known as Tucson V in the likely future court showdowns about “home rule”.)

(To read the Court’s Opinion – and, the dissent – head over to Arizona’s Law.)