Tucson Takes Odd Year Election Fight to Supreme Court
By Howard Fischer
Capitol Media Services
PHOENIX -- Attorneys for Tucson are asking the Arizona Supreme Court to void a 2018 law which seeks to force the city to scrap its odd-year elections.
In new court filings, attorney Jean-Jacques Cabou told the justices said 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. And that, he told the justices, puts matters of "strictly local concern'' like how and run elections out of reach of state lawmakers.
He also dismissed the claim of proponents of the legislation that the state has 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 wards goes off as scheduled.
But what the justices ultimately rule will determine how much latitude the state's 19 charter cities have in deciding how -- and when -- to choose their leaders without legislative intervention.
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 concluded tat 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. It even contained a trigger, saying charter cities could keep their own schedule only if turnout at local elections did not fall more than 25 percent below the number of residents turning out in the most recent statewide races,
Tucson did not meet the test, with 2019 election turnout at 39.3% versus 67% of Tucsonans who had cast ballots in 2018. But city leaders chose to ignore the law and scheduled the next election for 2021.
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. And he said that courts, in prior legal fights between Tucson and Brnovich, have concluded that charter cities have autonomy in structuring their own governments, including "the method and manner of conducting elections in the city.''
The 2018 law, Cabou told the justices, didn't change any of that, even with the triggers about voter turnout.
"The legislature impermissibly seeks to substitute its policy choices for those of the city,'' he said. And he said this isn't just what the council wants.
He pointed out that the council put a measure on the November 2018 ballot asking them if they wanted to go to even-year elections. The measure, Proposition 408, 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 that irrelevant.
"The state simply lacks an interest in the turnout for elections in charter cities,'' Cabou said. Anyway, he said, there are good reasons for having separate local elections.
"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.''
And then there's the simple fact that if Tucson elected it council members at the same time they would all end up at the bottom of the ballot, pretty much after every other candidate.
Then there's the fact that Cabou pointed out the Arizona Constitution bars enactment of special laws regarding the conduct of elections.
What is legal, Cabou told the justices, 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 that it no longer meets the conditions.
Here, however, Cabou pointed out that the law is permanent: Once a city's turnout drops below a trigger point, it can never get back its local election dates, even if future turnout improves to the point where it should no longer have to have consolidated elections.
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.
The justices are scheduled to consider the issue in December.