By Howard Fischer
Capitol Media Services
PHOENIX -- The attorney for the city of Tucson is arguing that state legislators acted illegally in trying to tell the state's 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 "significant decrease in voter turnout'' compared with statewide and federal elections. That is defined as a 25 percent drop.
But Rankin, writing to Assistant Attorney General Linley Wilson, said it doesn't matter what lawmakers mandated. He said the Arizona Constitution -- and the Tucson city charter adopted under its provisions -- specifically "empowers it to control the method and manner, and specifically the odd-year timing, of its elections for its mayor and council members.''
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 the city into bringing its elections in line or face the possible loss of $100 million in state aid.
The next step is up to Wilson's boss, Attorney General Mark Brnovich.
He has until July 19 to determine who he believes is right.
If Brnovich sides with Mesnard, that gives the city 30 days to come into compliance or lose state aid. But the more likely scenario would be that Tucson would ask the state Supreme Court to intercede.
And Rankin is confident that the outcome would be in Tucson's favor, pointing out that Tucson has won legal battles over its right to control its local elections three times before.
This new fight 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 those 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. And 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 other federal and statewide issues on the ballot in even-numbered years.
So in 2016 lawmakers tried a new tactic: Tie a city's ability to control its elections to turnout. Proponents argued that the state has an interest in increasing voter turnout. And 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 percent of what it is in national election.
City turnout in 2019 was 39 percent, which Rankin conceded was at least 75 percent less than the turnout for the 2018 statewide vote. But he said it's irrelevant, saying it's "an apples and oranges comparison that has no rational basis.''
He said there are multiple reasons why turnout at a local election may generate fewer voters than a statewide contest, like whether the race for mayor is uncontested or even whether a pandemic affects turnout.
And, from a legal perspective, Rankin called the 2018 law "fatally flawed.''
"It 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,'' he wrote.
There's also something else.
After the 2018 law was approved, the 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. That measure, Proposition 108, was rejected with 42.2 percent in favor and 57.8 percent opposed.
"The legislature has many options to choose from in seeking to increase voter turnout,'' Rankin wrote. "But these options do not include removing from Tucson's voters their constitutionally granted charter authority to determine whether they want their municipal elections shaped by state, county, or federal partisan issues.''
This fight over election dates isn't the only time state lawmakers have tried to tinker with local elections.
In 2009, the legislature voted to forbid cities from having partisan elections for mayor and council. The same law would have voided Tucson's modified ward system in which council candidates are nominated from each ward but elected citywide.
But the Arizona Supreme Court voided that law in 2012, ruling that the Arizona Constitution gives charter cities special rights to control their own local matters.