Thoughts on the election consolidation bill now in court

Posted by AzBlueMeanie:

Last year, Rep. Michelle Ugenti (R-Scottsdale) sponsored HB 2826 (consolidated election dates; political subdivisions), a bill providing for the consolidation of elections in the fall of even numbered years only. The law will apply to elections in 2014 and thereafter.

This legislation purportedly is the first of its kind enacted in the
nation – a strong indication that it is an ALEC drafted bill, as it was
also supported by other "Kochtopus" funded groups such as Americans
for Prosperity, the Goldwater Institute, and the Tea Party. (In fact, the Goldwater Institute moved to file an amicus curiae brief in the case below).

The City of Tucson filed its special action for declaratory and
injunctive relief on October 10, 2013 in the Pima County Superior Court,
City of Tucson v. State of Arizona et al. (Case No.
C20126272). The City of Phoenix Intervened as a
plaintiff. The case is assigned to Judge James E. Marner.

I was not able to attend the motion hearing scheduled for yesterday, April 29, 2013, because I have a job. I have not seen any reporting on this hearing, despite the fact that I posted the details about this hearing so that reporters could put it on their calendar and cover the hearing.

The issue in this case is purely a question of law. HB 2826 provides for the consolidation of elections in the fall of even numbered years only. This means federal. state and local elections will all occur in November of even numbered years only. It is the position of the state that consolidated election dates are a matter of statewide concern, and thus the statute preempts "all local laws, ordinances, and charter provsions to the contrary." A.R.S. §16-204 (A). Tucson and Phoenix are among 19 charter cities in Arizona.

The issue of consolidated election dates under A.R.S. §16-204 were at issue in City of Tucson v. State, 191 Ariz. 436, 957 P.2d 341 (App.Div.2, 1997)(review denied), a case directly on point:

In
1991, the legislature adopted a voluntary consolidated election schedule
and required reporting of the results. 1991 Ariz. Sess. Laws, ch. 246,
§§ 4-6. Reports from the two-year pilot program indicated the
consolidated election schedule resulted in significantly increased voter
turnout and reduced election costs. Attempts to refer approval of the
mandatory consolidated schedule to the voters, however, or to enact a
mandatory consolidated election schedule in 1993, 1994, 1995, and early
1996 failed. During these attempts, speakers before the legislative
committees voiced concern about voter confusion and fatigue,
administration of consolidated elections, and conflict with cities'
charters. Other speakers supported the proposed legislation because the
proliferation of elections was expensive and led to voter apathy.

After considering the arguments, the legislature determined that the benefits
of increased voter turnout and reduced costs were of statewide concern
and outweighed the potential problems. In light of the constitutional
framework, the legislative history, and the legislature's express
findings and declaration in § 16-204(A), we agree that the statute
pertains to matters of statewide concern and does not "relate to purely
municipal affairs." Strode, 72 Ariz. at 365, 236 P.2d at 51.

* * *

The legislature has acted in an area of statewide concern and its legislation takes precedence over the City's Charter. Walker.
Further, the State's interest is paramount. The consolidated election
schedule under § 16-204, therefore, governs City elections. The trial
court's decision is reversed.

The City of Tucson relies on the more recent Arizona Supreme Court decision in City of Tucson v. State of Arizona et al.,
En Banc decision (.pdf) (April 2012), the opinion which rejected "Paton's Law" that sought to impose nonpartisan and ward-only elections on the City of Tucson.

"The purpose of the home rule charter provision of the [Arizona] constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible." (citations omitted).

* * *

"[A] home rule city deriving its powers from the constitution is independent of the state legislature as to all subjects of the strictly local municipal concern." (citations omitted). 

* * *

Reviewing prior decisions, the Court in Strode [v. Sullivan, 72 Ariz. 360, 236 P.2d 48, 54 (1951)] explained:

"This court has uniformly held that a city charter, when regularly adopted and approved, becomes the organic law of the city and the provisons of the charter supercede all laws of the state in conflict with such charter provisions insofar as such laws realte to purely municipal affairs." (citations omitted).

* * *

Strode is absolutely clear that charter city governments enjoy autonomy with respect to structuring their own ogovernments.

* * *

Under Strode, Tucson's manner of electing its city council members supercedes the conflicting provisions of A.R.S. §9-821.01(B) and (C).

* * *

The State argues that we should defer to the legislature's finding . . . that "the conduct of elections described in this section is a matter of statewide concern." . . . Although we respect findings by the legislature, whether state law prevails over conflicting charter provisions under Article 13, Section 2 is a question of constitutional interpretation. (citations omitted).

The following passage in City of Tucson v. State of Arizona is relied upon by the State of Arizona to distinguish the holding in this case from cases involving consolidated election dates:

We do not question some aspects of the conduct of local elections may be of statewide concern. See, e.g., City of Tucson v. State, 191 Ariz. 436, 439, 957 P.2d 341, 344 (App. 1997) (finding statewide interest in specifying uniform dates for municipal elections). But election dates, other administrative aspects of elections, . . . all involve matters qualitatively differenct from determining how a city will constitute its governing council.

I believe this is a fair point of distingushing this case. However, the court must still do the balancing of interests test in Strode to determine whether the consolidated election dates really are a matter of statewide concern as the Court of Appeals found in City of Tucson v. State, 191 Ariz. 436, 957 P.2d 341 (App.Div.2, 1997)(review denied).

At the Superior Court level, judges apply the rules of constitutional interpretation and statutory construction in a manner most favorable to upholding a legislative act of the legislature. They know that their decision is going to be appealed and concern themselves with establishing the trial court record on appeal. Let the appeals process deal with it.

I would not find it much of a stretch that Judge Marlar will uphold HB 2826, relying on City of Tucson v. State, 191 Ariz. 436, 957 P.2d 341 (App.Div.2, 1997) and the distinguishing language in City of Tucson v. State of Arizona.

Assuming that this is the final decision once this case has been decided by the Arizona Supreme Court, it will force the City of Tucson to submit charter amendments to the voters of Tucson to conform the City Charter to the new law. But what happens if the voters of Tucson reject the charter amendments as a protest of being subjugated by our colonial overlords in the state of Maricopa?

The immediate problem this state law will create is what to do with the mayor and city council members whose terms are set to expire in 2015. Do we simply extend their terms of office by one year to 2016? And under what legal authority?

The same situation affects those city council members standing for election this year. Those council members elected in November will have terms of office that expire in 2017. Do we simply extend their terms of office by one year to 2018? And under what legal authority? Shouldn't voters know that they are electing council members to a 5 year term before voting this November?

The stated purposes of HB 2826, i.e., "increasing voter participation and for decreasing the costs to the taxpayers," is purely speculative and does not take into account the downside of a lengthy ballot. City council races and local questions submitted to the voters will appear at the end of an already lengthy ballot. This is likely to increase the number of "under votes" on a ballot, particularly for any races at the end of the ballot. Voters get frustrated with an overly lengthy ballot and do not complete the ballot.

An overly lengthy ballot is also a subtle form of voter suppression. Long lines at polling places because voters have to take an inordinate amount of time to complete a ballot will force some voters to leave the line without casting a vote. While Arizona does have a law imposing a time limit to vote, I am not aware that it has actually been enforced. This does nothing to reduce wait times at polling places, a concern in the 2012 election.

Finally, local mayor and council races will not receive the media attention and scrutiny they normally receive, nor will the candidates be able to compete for television and radio time against federal and state candidates who will reserve all of the available commercial time.  Voters will have no idea for whom they are voting — and that is really the goal of the "Kochtopus" groups behind HB 2826, such as Americans
for Prosperity, the Goldwater Institute, and the Tea Party. It is a way for them to sneak in their right-wing candidates without any vetting or scrutiny from the media and the public.

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