Arizona Attorney General’s Office Determines Tucson’s Election Ordinance May Violate State Law

The Arizona Attorney General’s Office (AGO) released its findings in the SB 1487 investigation of whether the City of Tucson’s ordinance, which calls for elections for city council and city ballot measures to be held “off-cycle” in 2021 rather than on the statewide election dates in 2022, violates state law. The AGO has determined that the ordinance (11731), enacted on February 19, 2020, may violate state law.

Arizona law establishes that when charter cities, such as Tucson, “demonstrate low voter turnout in the elections that are not held on the consolidated election dates…the low voter turnout constitutes sufficient factual support for requiring candidate and other elections to be held on certain specific consolidated dates.” The statute defines “significant decrease in voter turnout” as at least a 25% decline in voter turnout for an at-large candidate election.

During the 2018 statewide general election, turnout within Tucson city limits was 67%. However, turnout for Tucson’s off-cycle 2019 election was a meager 39.26%. By law, this significant decrease in turnout would require Tucson to hold its next city election on the statewide election dates in 2022. Despite the decrease in voter turnout, Tucson City Council voted in February 2020 to hold the next city primary election on August 3, 2021 and the next city general election on November 2, 2021.

As a charter city, Tucson may enact ordinances that conflict with state law when those ordinances relate to matters of purely local concern. However, the decision of when to hold an election is likely not a matter of purely local concern. The statute expressly states that it is a matter of statewide concern to increase voter participation in elections when there is evidence of low voter turnout in a charter city election. Election dates also implicate the State’s interests in protecting Arizonans’ constitutional right to vote and safeguarding election integrity. Additionally, the Arizona Supreme Court has previously stated that some aspects of local elections are matters of statewide concern, including election dates.

The AGO’s “may violate” determination will allow for the AGO to expeditiously seek relief in the nature of declaratory judgment against the City of Tucson in the Arizona Supreme Court.

The AGO will promptly file a special action petition with the Arizona Supreme Court to strike down the City of Tucson’s ordinance to hold elections in odd-numbered years. If the high court agrees with the AGO’s determination, Tucson’s ordinance will be void.

Senator J.D. Mesnard requested the AGO investigation of whether the City of Tucson’s ordinance violates state law.

A copy of the AGO’s findings can be viewed here.

A copy of Exhibit A can be found here.

The AGO’s SB 1487 investigation page can be viewed here.