State of Arizona v. City of Tucson ( 2021 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA, EX REL. MARK BRNOVICH, ATTORNEY GENERAL,
Petitioner,
v.
CITY OF TUCSON, ARIZONA,
Respondent.
No. CV-20-0244-SA
Filed April 14, 2021
SPECIAL ACTION
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief
Deputy and Chief of Staff, Brunn W. Roysden III (argued), Solicitor General,
Michael S. Catlett, Linley Wilson, Jennifer Wright, Assistant Attorneys
General, Phoenix, Attorneys for State of Arizona
Jean-Jacques Cabou (argued), Alexis E. Danneman, Matthew R. Koerner,
Perkins Coie LLP, Phoenix; Michael G. Rankin, City Attorney, Dennis P.
McLaughlin, Roi I. Lusk, Jennifer Stash, Principal Assistant City Attorneys,
Office of the Tucson City Attorney, Tucson, Attorneys for City of Tucson
Jon M. Paladini, Prescott City Attorney, RoseMarie R. Horvath, City of
Prescott Legal Department, Prescott, Attorneys for Amicus Curiae City of
Prescott
Robert B. Washburn, Scottsdale, Attorney for Amicus Curiae League of
Arizona Cities and Towns
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
Judith R. Baumann, Tempe City Attorney, Sarah R. Anchors, Elizabeth
Higgins, Assistant City Attorneys, City of Tempe, Tempe, Attorneys for
Amicus Curiae City of Tempe
Cris A. Meyer, Phoenix City Attorney, Deryck R. Lavelle, Assistant City
Attorney, Office of the City Attorney, Phoenix, Attorneys for Amicus
Curiae City of Phoenix
VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, and JUSTICES LOPEZ, BEENE, and
MONTGOMERY joined.* JUSTICE BOLICK dissented.
VICE CHIEF JUSTICE TIMMER, opinion of the Court:
¶1 Arizona Revised Statutes § 16-204.01 requires political
subdivisions to consolidate local elections with state and national elections
when voter turnout for the former significantly decreases. Our
constitution’s “home rule charter” provision, article 13, § 2, gives charter
cities autonomy over matters of purely municipal concern. We are asked
to decide whether the home rule charter provision precludes application of
§ 16-204.01 to a city whose charter requires electing local officials on non-
statewide election dates. Whether to align municipal elections with state
and national elections or hold them in different years is purely a matter of
municipal interest and not a statewide concern. Consequently, we hold
that § 16-204.01 cannot apply to require a city to consolidate local elections
with state and national elections if its charter provides otherwise.
*
Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.
2
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
BACKGROUND
¶2 The legislature has sought in recent years to align local, state,
and national election dates. Beginning with the 2014 elections, the
legislature required nearly all political subdivisions to hold most candidate
elections in even-numbered years on dates selected for state and national
elections. 1 See A.R.S. § 16-204(E); see also A.R.S. §§ 16-211 through -213
(setting dates for state and national candidate elections); Ariz. Const. art. 7,
§ 11 (requiring biennial general elections be held in even-numbered years).
In doing so, the legislature preempted all laws, charters, and ordinances
requiring different election dates. See § 16-204(E). After two charter
cities challenged this legislation, the court of appeals held that “state-
mandated election alignment, when it conflicts with a city’s charter,
improperly intrudes on the constitutional authority of charter cities.” City
of Tucson v. State (Tucson III), 235 Ariz. 434, 435 ¶ 3 (App. 2014). In relevant
part, the court found “no facts or legislative findings” showing that aligning
local, state, and national candidate elections affects statewide interests,
which would have rendered § 16-204(E) permissible under the home rule
charter provision. Id. at 439 ¶ 17.
¶3 In 2018, the legislature responded to Tucson III by enacting
A.R.S. §§ 16-204.01 and -204.02. See § 16-204.01(A). Section 16-204.01
requires a political subdivision to “hold its elections on a statewide election
date” (“on cycle”) if voter turnout for its most recent local election held on
a non-statewide election date (“off cycle”) decreased by twenty-five percent
or more from the political subdivision’s voter turnout for the most recent
gubernatorial election. § 16-204.01(B) and (D)(2). Section 16-204.01 does
not authorize political subdivisions to return to off-cycle elections once
moved to on-cycle elections. If off-cycle elections are consolidated with
on-cycle election dates, incumbent officials’ terms in office are lengthened
to align accordingly. See § 16-204.02.
¶4 The legislature found that consolidating election dates in the
above-described circumstances would increase voter participation in local
elections, a matter of statewide concern. § 16-204.01(A). Thus, as it did
in § 16-204, the legislature preempted all contrary local laws, ordinances,
and charter provisions. See §§ 16-204.01(A) and -204.02(A).
1
Special elections to fill vacancies and recall elections can be held on one of
four dates in any year. See A.R.S. § 16-204(F).
3
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
¶5 The City of Tucson is an incorporated city with a charter.
Since 1960, its charter has required off-cycle elections for electing city
officials and for repealing or amending previously adopted city initiative
measures. Tucson City Charter, ch. 16, §§ 3, 4; ch. 19, § 9. The charter
empowers the mayor and city council to select election dates. Id., ch. 4,
§ 1(20); ch. 16, § 6.
¶6 After enactment of §§ 16-204.01 and -204.02, the City placed a
referendum measure on the November 2018 ballot seeking to amend its
charter to require on-cycle elections. The measure failed.
¶7 The City experienced a significant decline in voter turnout
between the 2018 gubernatorial election and the 2019 city election, thereby
triggering § 16-204.01’s directive for conducting on-cycle elections.
Regardless, the mayor and city council enacted Ordinance No. 11731
(“Ordinance”) in 2020, setting off-cycle primary and general election dates
in 2021 to select three city council members.
¶8 An Arizona legislator asked the Attorney General to
investigate whether the Ordinance violates § 16-204.01. The request
triggered A.R.S. § 41-194.01, which required the Attorney General to
investigate and report whether the Ordinance violates, may violate, or does
not violate § 16-204.01. See § 41-194.01(A)–(B).
¶9 The Attorney General found that the Ordinance may violate
§ 16-204.01. Pursuant to § 41-194.01(B)(2), he therefore filed this special
action asking us to resolve the issue. We have jurisdiction pursuant to
article 6, section 5(6) of the Arizona Constitution and § 41-194.01(B)(2).
DISCUSSION
I. General principles
¶10 Arizona’s constitutional framers adopted a home rule charter
provision during the 1910 convention. Ariz. Const. art. 13, § 2. Including
the provision in our constitution coincided with an urban reform
movement seeking to discontinue treating cities as mere “creatures, agents,
or subdivisions” of the state by providing them lawmaking authority and
4
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
freedom from state legislative interference in municipal affairs. 2 David J.
Barron, Reclaiming Home Rule, 116 Harv. L. Rev. 2255, 2278 & n.68 (2003); see
also Toni McClory, Understanding Arizona’s Constitution 178 (2d ed. 2010)
(“Arizona’s Progressive founders valued local autonomy, so they put
constitutional limits on the legislature’s ability to interfere with cities and
towns. For example, the legislature is expressly prohibited from enacting
‘local or special’ laws that treat communities individually. Even more
importantly, the Progressives encouraged municipal home rule.”); Strode v.
Sullivan, 72 Ariz. 360, 367 (1951) (explaining that the purpose of home rule
“is to emancipate the municipal governments of cities . . . from the control
formerly exercised over them by the Legislature” (quoting State ex rel. Short
v. Callahan, 221 P. 718, 719 (Okla. 1923))); State ex rel. Brnovich v. City of
Tucson (Tucson IV), 242 Ariz. 588, 598 ¶ 40 (2017) (phrasing the purpose as
“render[ing] the cities adopting such charter provisions as nearly
independent of state legislation as was possible” (quoting City of Tucson v.
Walker, 60 Ariz. 232, 239 (1943))).
¶11 Arizona’s home rule charter provision authorizes any city
with a population greater than 3500 people to “frame a charter for its own
government.” Ariz. Const. art. 13, § 2. Once ratified by the city’s voters
and approved by the governor, the charter becomes the “organic law of
such city,” effectively, a local constitution. See id.; City of Tucson v. State
(Tucson II), 229 Ariz. 172, 174 ¶ 10 (2012); see also Paddock v. Brisbois, 35 Ariz.
214, 220 (1929) (noting that unlike a state constitution, which limits state
government’s power, a city charter “is a grant of power”). Whatever
powers a city exercises under its charter, however, must be “consistent
with, and subject to, the Constitution and laws of the state.” See Ariz. Const.
art. 13, § 2; accord A.R.S. § 9-284(B); see also Strode, 72 Ariz. at 364 (stating
that a charter city does not possess “carte blanche authority or plenary
power to adopt any legislation that it might desire”); Tucson IV, 242 Ariz. at
602 ¶ 55 (observing that our prior cases have consistently recognized that
the “consistent with, and subject to” clause operates as a “significant
constitutional restraint on charter cities’ powers”).
2
Missouri was the first state to adopt a home rule charter provision in 1875.
Alice M. Holden, Home Rule Legislation during the Years 1913–1914, 9 Am. Pol.
Sci. Rev. 322, 322 n.1 (1915), https://www.jstor.org/stable/1944628 (last visited
Mar. 1, 2021). Seven states followed suit before Arizona and three other
states adopted home rule charter provisions in 1912. Id.
5
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
¶12 Although the home rule charter provision addresses conflicts
between a charter and state laws existing at the time the charter is
approved, it does not expressly address conflicts arising after the charter is
approved. See Ariz. Const. art. 13, § 2 (requiring the governor to approve
a voter-ratified charter and any subsequently ratified amendments unless
they “conflict with [the] Constitution or with the laws of the state”). From
statehood onward, however, the home rule charter provision has been
continuously viewed as providing local autonomy to exercise charter-
granted authority over purely municipal concerns while preserving final
state legislative authority over matters of joint municipal and statewide
concern. See, e.g., 1912 Ariz. Sess. Laws ch. 11, § 4 (1st Spec. Sess.)
(implementing the home rule charter provision and providing, in relevant
part, that upon a charter’s approval, its provisions prevail over conflicting
state laws “relating to cities,” if the charter does not conflict with laws
involving initiatives and referenda “and other general laws of the State not
relative to such cities”); § 9-284 (repeating the substance of the 1912 Act’s
treatment of conflicts between a charter and state law); Clayton v. State, 38
Ariz. 466, 468 (1931) (on motion for rehearing) (stating “[if] the subject [over
which a charter city exercises authority] is of state-wide concern, and the
Legislature has appropriated the field and declared the rule, its declaration
is binding throughout the state”); Walker, 60 Ariz. at 239 (“[W]here the
legislative act deals with a strictly local municipal concern, it can have no
application to a city which has adopted a home rule charter.”); Mayor &
Common Council of City of Prescott v. Randall, 67 Ariz. 369, 371 (1948)
(collecting cases establishing “that a charter city is sovereign in all of its
‘municipal affairs’ where the power . . . to be exercised has been specifically
or by implication granted in its charter”); Tucson II, 229 Ariz. at 174 ¶ 10
(“[A] home rule city deriving its powers from the Constitution is
independent of the state Legislature as to all subjects of strictly local
municipal concern.” (quoting City of Tucson v. Tucson Sunshine Climate Club,
64 Ariz. 1, 8–9 (1945))).
¶13 Our dissenting colleague, without either party’s urging and
as he did in Tucson IV, argues that this Court has consistently
misinterpreted the home rule charter provision by engrafting onto it the
above-described statutory and common law distinctions between treatment
of purely municipal and statewide concerns. See infra ¶¶ 56–59; Tucson IV,
242 Ariz. at 606–07 ¶¶ 76–78, 80 (Bolick, J., concurring in part and in the
result). He primarily faults this Court’s decision in Strode as rewriting the
constitution by authorizing a charter provision to prevail over state law on
purely municipal concerns. See infra ¶ 59; cf. Tucson IV, 242 Ariz. at 599
6
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
¶ 43 (noting that this Court, in fact, had recognized the purely
municipal/statewide distinction “well before Strode”). He claims the
home rule charter provision clearly provides “a bright-line rule: a city’s
charter is subject to the laws of the state. If the charter and a state statute
collide, the former must yield.” See infra ¶ 51. For the reasons explained
in Tucson IV and hereafter, we again reject the dissent’s position. 242 Ariz.
at 599–600 ¶¶ 43–45.
¶14 Strode’s interpretation of the home rule charter provision was
not untethered from its language, as the dissent suggests. See infra ¶ 59;
Tucson IV, 242 Ariz. at 606 ¶¶ 76–77. In interpreting the provision’s
requirement that a charter be “consistent with, and subject to, the
constitution and the laws of the state,” the Court concluded that “laws of
the state” referred to the state’s general affairs rather than laws addressing
purely municipal affairs, thereby tying the provision’s language to the
purely municipal/statewide dichotomy the dissent eschews. See Strode,
72 Ariz. at 364.
¶15 Notably, the Strode Court adopted the Oklahoma Supreme
Court’s interpretation of identical language in the Oklahoma Constitution’s
home rule charter provision. Id. In City of Wewoka v. Rodman, 46 P.2d 334,
336 (Okla. 1935), the court rejected an assertion that “‘consistent with and
subject to the Constitution and laws of the state’ rendered invalid every
provision of the charter in conflict with any statute of the state, whether
pertaining to the general affairs of the state or to matters purely municipal.”
Strode, 72 Ariz. at 364. Instead, it interpreted the provision as meaning that
a charter provision is “subject to any provision of the state law[] that goes
beyond purely municipal affairs.” Id. (quoting Rodman, 46 P.2d at 336).
Thus, rather than “rewriting” the home rule charter provision, Strode
interpreted its language as meaning that only state laws of statewide
concern prevail over conflicting charter provisions, and that upon approval,
“the provisions of the charter supersede all laws of the state in conflict with
such charter provisions insofar as such laws relate to purely municipal
affairs.” See id. at 364–65.
¶16 Strode’s interpretation of the home rule charter provision is
correct even under closer scrutiny. The provision uses the term “laws of
the state” twice, authorizing a qualified city to frame a charter “consistent
with, and subject to . . . the laws of the state,” the language at issue here,
and requiring the governor to approve a voter-ratified charter unless it
conflicts with the “laws of the state.” Ariz. Const. art. 13, § 2. Nothing in
7
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
the provision indicates that “laws of the state” has a different meaning
when used in addressing gubernatorial approval, so we give it a single
meaning throughout the provision. See Adams v. Comm’n on App. Ct.
Appointments, 227 Ariz. 128, 135 ¶ 34 (2011) (noting that constitutional
language must be interpreted in context).
¶17 Strode’s interpretation of “laws of the state” is the only one
that gives effect to the home rule charter provision. See State v. Soto-Fong,
250 Ariz. 1, 11 ¶ 42 (2020) (“Our primary purpose when interpreting the
Arizona Constitution is to ‘effectuate the intent of those who framed the
provision.’” (quoting Jett v. City of Tucson, 180 Ariz. 115, 119 (1994)). If
“laws of the state” included matters of purely municipal concern, as the
dissent asserts, the governor could never approve charters, or any later
amendments, that structured their governments in a manner contrary to
state laws directing the structure for non-charter cities. See Ariz. Const.
art. 13, § 2; cf. A.R.S. § 9-231(B) (imposing membership limits for city
councils). And, of course, the legislature could trump a conflicting charter
provision or charter-authorized ordinance on a matter of purely municipal
concern by enacting a contrary law. In short, the state—not the city—
would effectively “frame a charter” for that city’s government. See Ariz.
Const. art. 13, § 2. Interpreting “laws of the state” to mean laws of
statewide concern preserves a charter city’s local autonomy, as the framers
intended. See Jett, 180 Ariz. at 119 (stating that to discern the meaning of
unclear language in the constitution, courts may consider “the history
behind the provision, the purpose sought to be accomplished, and the evil
sought to be remedied”).
¶18 As we pondered in Tucson IV, what’s left of the home rule
charter provision under the dissent’s view? 242 Ariz. at 599 ¶ 44. The
answer: not much.
II. Application here
¶19 The issue here is whether the subject matter of the City’s
charter and Ordinance—conducting off-cycle municipal elections—is a
matter of purely municipal concern or is also one of statewide interest. See
Tucson II, 229 Ariz. at 176 ¶ 20; Tucson IV, 242 Ariz. at 601 ¶ 52. If the issue
is of purely local concern, § 16-204.01 cannot preempt the City’s charter
provision requiring off-cycle municipal elections and the Ordinance
scheduling the 2021 elections is valid. If the issue is of statewide interest,
§ 16-204.01 applies to require the City to hold on-cycle municipal elections
8
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
and the Ordinance is invalid. Resolving this issue is a question of
constitutional interpretation, which we decide de novo as an issue of law.
See State ex rel. Brnovich v. City of Phoenix, 249 Ariz. 239, 243 ¶ 17 (2020).
¶20 Identifying “purely municipal” versus “statewide” interests
is often challenging, as the variety of case-specific facts makes setting
precise definitions difficult. See Tucson II, 229 Ariz. at 176 ¶ 20; Tucson IV,
242 Ariz. at 599 ¶ 42. But, generally speaking, matters of purely municipal
concern are few in number. See Walker, 60 Ariz. at 238 (explaining that
“the Constitution does not confer on the city the right [in framing its
charter] to assume all the powers that the state may exercise within the city
limits, but only powers incident to its municipality,” which are those
“necessary or incident to the government of the municipality” (quoting
State ex rel. Garner v. Mo. & K. Tel. Co., 88 S.W. 41, 43 (Mo. 1905))). Thus
far, we have upheld charter-authorized municipal ordinances that conflict
with state laws in two subject areas. See Tucson IV, 242 Ariz. at 602 ¶ 56.
The first is the city’s manner and method of disposing of its real estate,
which is not implicated here. See id. ¶ 57. The second is the “method and
manner of conducting elections in the city,” which potentially applies here.
See Strode, 72 Ariz. at 368. Our prior “home rule” cases involving elections
therefore warrant scrutiny.
¶21 In Strode, this Court resolved a conflict between Phoenix’s
charter, which prohibited listing a municipal candidate’s political party on
the ballot, and state law, which generally authorized representation of
political parties on municipal election ballots. Id. at 361–62. In deciding
whether conducting partisan or non-partisan elections was a matter of
purely municipal concern or statewide interest, the Court initially observed
that “[m]unicipal elections and the choice of municipal officers have been
held [in other jurisdictions] to be matters of local concern” and “governed
by charter provisions rather than the general laws of the state.” Id. at 367–
68. Notably, it reasoned that in providing for home rule, our framers
“certainly contemplated the need for officers and the necessity of a
procedure for their selection,” which are “essentials” for preparing a
governmental structure and thus inherently subjects of municipal interest.
Id. at 368. The Court therefore resolved the conflict in favor of the charter,
holding “that the method and manner of conducting elections in the city of
Phoenix is peculiarly the subject of local interest and is not a matter of
statewide concern.” Id.9
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
¶22 In Triano v. Massion, 109 Ariz. 506, 508 (1973), the Court
addressed whether the Tucson charter’s one-year residency requirement
for councilmember candidates was limited by a state statute enacted after
the charter that imposed a less restrictive residency requirement. Relying
on Strode, the Court explained that “[m]unicipal elections are matters of
local interest and not matters of statewide concern.” Id. (citing Strode, 72
Ariz. 360). But it did not find a conflict between the charter and the state
law, concluding instead that the state law did not prevent Tucson from
imposing more stringent residency requirements. See id. Triano,
therefore, adds nothing beyond this Court’s adherence to Strode.
¶23 In Tucson II, we resolved a conflict between Tucson’s charter-
required method for electing city councilmembers through partisan ward-
based primaries combined with city-wide partisan general elections and
state law, which barred cities from both conducting partisan elections and
using ward-based primaries in combination with city-wide general
elections. 229 Ariz. at 173 ¶¶ 2–3. The Court resolved the conflict in the
charter’s favor because its election methodology “is peculiarly the subject
of local interest and is not a matter of statewide concern.” See id. at 177
¶¶ 30–32 (quoting Strode, 72 Ariz. at 368). Significantly, the Court
qualified Strode (and, necessarily, Triano) by acknowledging that “some
aspects of the conduct of local elections may be of statewide concern.” See
id. at 178 ¶ 35. As an example, it pointed to City of Tucson v. State (Tucson
I), 191 Ariz. 436, 439 (App. 1997), which found a statewide interest in
restricting municipal elections to four dates within every election year. See
Tucson II, 229 Ariz. at 178 ¶ 35; see also Tucson I, 191 Ariz. at 438–39
(cataloguing constitutional provisions as demonstrating that “[t]he
Constitution requires the legislature’s involvement in elections, including
those conducted by charter cities” in many aspects). The Court
distinguished “election dates, other administrative aspects of elections”
and election-related matters delegated to the legislature by the Arizona
Constitution as “involv[ing] matters qualitatively different from
determining how a city will constitute its governing council.” See Tucson
II, 229 Ariz. at 178 ¶ 35.
¶24 The Attorney General argues that selecting municipal election
dates is “qualitatively different” from the charter provisions at issue in
Strode and Tucson II because election timing does not concern a charter city’s
“governmental structure.” He views these cases as confining
“governmental structure” to who shall be governing officers and how they
are selected—not when they are selected. Election dates, the Attorney
10
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
General asserts, are the type of “administrative aspects of elections” Tucson
II recognized as not implicated in determining how a city will constitute its
governing council. See id.
¶25 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. See Tucson II, 229
Ariz. at 178 ¶ 35. Also, moving to on-cycle elections would not only alter
the existing officers’ terms, necessarily extending them for one year, see
§ 16-204.02, it would preclude the City from structuring its government
with officers serving odd-numbered term years.
¶26 The Attorney General relies heavily on both Tucson II’s
statement that “election dates . . . involve matters qualitatively different
from determining how a city will constitute its governing council” and its
citation to Tucson I. See Tucson II, 229 Ariz. at 178 ¶ 35. In context, this
statement and citation exemplified the Court’s point that “some aspects of
the conduct of local elections may be of statewide concern.” Id. We do
not understand this language as meaning that selection of election dates can
never involve a charter city’s choice on how to structure its government.
This is particularly so as the state law in Tucson I confined all elections to
four specific dates in a year but did not intrude on a charter city’s choice of
election year, which, as explained, affects a city’s choice on how to elect its
officers. See Tucson I, 191 Ariz. at 437.
¶27 Second, even if the decision to conduct off-cycle elections
does not affect a charter city’s governmental structure, the City’s charter
provision and Ordinance may yet prevail over application of § 16-204.01.
Because the charter requires off-cycle elections, the City is undeniably
authorized to hold off-cycle elections and so has an interest in doing so.
11
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
The key determination is whether this interest is a purely municipal one.
See Tucson II, 229 Ariz. at 174 ¶ 10. That determination turns on whether
there is also a statewide interest in conducting municipal elections on-cycle
or off-cycle. See id. at 176 ¶ 20 (“[W]hether general state laws displace
charter provisions depends on whether the subject matter is characterized
as of statewide or purely local interest.”). We turn to that issue.
¶28 Section 16-204.01(A) declares “it is a matter of statewide
concern to increase voter participation in elections, including elections
for . . . charter cities” and that if charter cities experience low voter turnout
in off-cycle elections, “increasing voter turnout” by transitioning cities to
on-cycle elections “is a matter of statewide concern.” This declaration
does not end the inquiry, as deciding whether § 16-204.01 applies to the City
is a matter of constitutional interpretation, which this Court decides. See
Walker, 60 Ariz. at 239 (“Whether or not an act of the legislature pertains to
a matter of local or state-wide concern becomes a question for the courts
when a conflict of authority arises.” (quoting Axberg v. City of Lincoln, 2
N.W.2d 613, 615 (Neb. 1942))); Tucson IV, 242 Ariz. at 598 ¶ 37 (respecting
the legislature’s declaration of statewide interest but concluding that
“whether state law prevails over conflicting charter provisions under
Article 13, Section 2 is a question of constitutional interpretation” (quoting
Tucson II, 229 Ariz. at 178 ¶ 34))).
¶29 The City argues that the Attorney General has failed to
demonstrate how voter turnout for municipal elections affects the state’s
interests. The Attorney General initially relies on Tedards v. Ducey, 398 F.
Supp. 3d 529, 539 (D. Ariz. 2019), which, in resolving a challenge to an
Arizona law authorizing appointment of a person to fill Senator John
McCain’s vacant Senate seat until a general election could be held twenty-
seven months after the Senator’s death, stated that “[t]he State has an
interest in having high turnout for Senate elections.” This decision is
unhelpful, however, because a state’s understandable interest in voter
turnout for a senate position representing the entire state sheds no light on
what interest the state has in turnout for a municipal election.
¶30 The Attorney General next argues the state has an interest in
voter turnout at municipal elections because low turnouts adversely affect
the fundamental right to vote guaranteed by our state and federal
constitutions. The fundamental right to vote guarantees that voters will
“participate in state elections on an equal basis with other qualified voters.”
Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n,
12
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
211 Ariz. 337, 345-46 ¶ 23 (App. 2005) (quoting San Antonio Indep. Sch. Dist.
v. Rodriguez, 411 U.S. 1, 35 n.78 (1973)); see also Ariz. Const. art. 2, § 2 (“All
political power is inherent in the people”); id. art. 2, § 21 (“All elections shall
be free and equal.”). But the Attorney General points to nothing about off-
cycle elections that erects barriers to voting or treats voters unequally. See
Arizonans for Second Chances, Rehab. & Pub. Safety v. Hobbs, 249 Ariz. 396, 408
¶ 41 (2020) (“Ballot access restrictions implicate the right to vote . . . .”);
Chavez v. Brewer, 222 Ariz. 309, 319 ¶ 33 (App. 2009) (“Other states with
similar constitutional provisions have generally interpreted a ‘free and
equal’ election as one in which the voter is not prevented from casting a
ballot by intimidation or threat of violence, or any other influence that
would deter the voter from exercising free will, and in which each vote is
given the same weight as every other ballot.”). Even if low voter turnout
results from disinterest in strictly municipal issues in off-cycle elections
decoupled from state and national elections, as the Attorney General
suggests, that does not deprive those voters of their constitutional right to
vote.
¶31 The Attorney General also argues that a statewide interest in
voter turnout for municipal elections exists because low turnout affects the
integrity of the electoral process. He cites an opinion from the California
Attorney General, who relied solely on a dictionary definition of “integrity”
as meaning “complete” in concluding that “[e]lections are less ‘complete’
when there is significantly lower voter turnout because fewer eligible
voters are participating in the electoral process,” thereby “undermin[ing]
electoral integrity.” See Cal. Att’y Gen. Op. No. 16-603, 100 Ops Cal. Atty.
Gen. 4, *9 (July 11, 2017).
¶32 The California Attorney General’s opinion is unpersuasive.
Notably, the only California court to consider the opinion rejected it, albeit
on another basis. See City of Redondo Beach v. Padilla, 260 Cal. Rptr. 3d 263,
274–75 (Cal. Ct. App. 2020). But more importantly, election integrity
generally refers to fair and honest election-related procedures, which are
necessary to ensure voters’ trust. See Ariz. Const. art 7, § 12 (authorizing
the legislature to enact laws to “secure the purity of elections and guard
against abuses of the elective franchise”); Eu v. S.F. Cnty. Democratic Cent.
Comm., 489 U.S. 214, 231 (1989) (explaining a state has an interest in
“preserving the integrity of its election process” and may therefore “enact
laws that interfere with a party’s internal affairs when necessary to ensure
that elections are fair and honest”); Hobbs, 249 Ariz. at 408 ¶ 41
(“‘[S]ubstantial regulation of elections’ is necessary ‘if they are to be fair and
13
STATE EX REL. BRNOVICH V. CITY OF TUCSON
Opinion of the Court
honest and if some sort of order, rather than chaos, is to accompany the
democratic processes.’” (quoting Storer v. Brown, 415 U.S. 724, 730 (1974))).
We are unaware of any cases in which low voter turnout alone casts doubt
on the fairness and honesty of the electoral process. Indeed, swings in
voter turnout for statewide elections often occur depending on voter
attention, voter interest, and even the weather, presumably without
harming election integrity. See, e.g., Tedards, 398 F. Supp. 3d at 539 (noting
a thirty-one percent turnout for Arizona’s statewide special election in May
2016 compared with a seventy-four percent turnout for the November 2016
statewide general election).
¶33 In sum, a statewide interest may exist regarding the method
and manner of conducting charter city elections. Tucson II, 229 Ariz. at 178
¶ 35. For example, a statewide interest would exist concerning election
methods implicating “free and equal” elections, see Ariz. Const. art. 2, § 21,
or the “purity of elections,” see id. art 7, § 12. But 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. The Ordinance is therefore
valid, and the City may conduct its municipal elections in 2021. Section
16-204.01 continues to apply to non-charter political subdivisions and to
charter political subdivisions whose charters do not authorize off-cycle
elections.
¶34 In light of our decision, we need not decide whether
§ 16-204.01 is an unconstitutional special law. Finally, pursuant to the
mandatory provision of A.R.S. § 12-348.01, we award reasonable attorney
fees to the City as the prevailing party and deny the Attorney General’s
request.
14
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
BOLICK, J., dissenting:
¶35 The majority opinion rests on the premise that when the
framers wrote the very clear words of article 13, section 2, they did not mean
what they said, and that our decades of cacophony-producing cases
rewriting those words mark an improvement upon the original. See
Tucson IV, 242 Ariz. at 599 ¶ 42 (acknowledging that “the extensive Arizona
case law in this area is muddled”). Because we are charged with
interpreting the Constitution as written, rather than how we think its
authors meant to write it but didn’t, I respectfully dissent.
¶36 The Court’s convoluted jurisprudence over many decades
brings to mind a story. A carpenter needed a new blade for his saw and
set forth on foot toward a general store only a mile away down a straight
road.
¶37 Shortly thereafter, a neighbor farmer pulled alongside in a
wheezing, rusted pickup truck. “Where you headed?” he asked.
¶38 “General store,” replied the carpenter.
¶39 “Want a ride?” asked the farmer.
¶40 Somewhat doubtful about the old truck, the carpenter
nonetheless agreed, opening the creaking door and sitting on a bench seat
with torn upholstery and springs jabbing his rear. “How long have you
had this truck?” the carpenter asked.
¶41 “Bought it new in ’51,” the farmer answered. “Never ran
right; still doesn’t.”
¶42 The farmer pressed the accelerator to a loud backfire, then
pulled the wheel sharply to the left, coaxing the old truck up a steep hill
away from the nearby general store. “Where are we heading?” asked the
puzzled carpenter.
¶43 “Don’t rightly know,” replied the farmer. “I go a different
way every time. Never really know where I’ll end up ’til I get there.”
15
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
¶44 The carpenter felt it unneighborly to complain, even as the
ride grew ever more bumpy and uncomfortable. The truck meandered up
and down hills and around curves, belching exhaust fumes and kicking up
dust. Minutes turned into an hour. An hour turned into two.
¶45 Finally, they arrived at a general store about fifty miles from
where they started. The carpenter went inside, only to find the store did
not stock the blade he needed.
¶46 Angry now over wasting so much time in a futile endeavor,
the exasperated carpenter returned to the truck and asked the farmer, “Why
did you drive fifty miles out of our way instead of just going a mile down
a straight road?”
¶47 To which the farmer replied, “Because that’s the way I’ve
always done it.” And then with a sly grin, he added, “You owe me for
gas.”
¶48 In this version of the story, the rust-bucket that never worked
right and still doesn’t is Strode v. Sullivan, 72 Ariz. 360 (1951). The
carpenter is the beleaguered taxpayer, who foots the gas bill every time the
truck gets on the road. And the straight path to the destination that the
farmer so assiduously avoided is the plain language of article 13, section 2
of the Arizona Constitution.
¶49 If our Constitution was silent on the matter of charter cities
and we hired a gifted wordsmith to create a provision that would give
charter cities powers that are subordinate to those of the state, we could
hardly expect a better or more precise product than the following: “Any city
containing, now or hereafter, a population of more than three thousand five
hundred may frame a charter for its own government consistent with, and
subject to, the Constitution and the laws of the state . . . .” We might even
pay a bonus for the additional verbiage that makes clear what laws a city’s
charter supersedes (and, by inference, what laws a city’s charter does not
supersede): “Upon such approval said charter shall become the organic law
of such city and supersede any charter then existing (and all amendments
thereto), and all ordinances inconsistent with said new charter.”
¶50 Those words, of course, are the very ones that appear in article
13, section 2. When the framers of a constitutional provision produce
words of such striking clarity, our job as constitutionally constrained judges
16
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
is simple: to enforce them. See, e.g., Perini Land & Dev. Co. v. Pima County,
170 Ariz. 380, 383 (1992) (“We look first to the language of the provision, for
if the constitutional language is clear, judicial construction is neither
required nor proper.”); Jett, 180 Ariz. at 119 (“If the language is clear and
unambiguous, we generally must follow the text of the provision as
written.”).
¶51 Properly applied, the constitutional language creates a bright-
line rule: a city’s charter is subject to the laws of the state. If the charter
and a state statute collide, the former must yield. Under such a rule, it is
likely that the only time we would see litigation is when the state and a city
differed over whether the charter conflicts with a state statute. Here, the
City acknowledges that its charter conflicts with state law; hence, the state
statute should prevail.
¶52 Absent from article 13, section 2, by contrast, is any exception
for “matters of purely municipal concern,” which nonetheless is the
standard the Court applies to determine that, in this case, the charter
prevails over state law. Supra ¶ 1. Unlike the bright-line rule of article
13, section 2, the majority acknowledges that determining what qualifies as
a purely municipal concern is “often challenging” because the term has no
“precise definitions.” Supra ¶ 20; see also Tucson IV, 242 Ariz. at 600 ¶ 46
(describing the “twilight zone” separating matters of local and statewide
concern).
¶53 How this murky standard came to displace the constitutional
language is curious. The majority notes that the framers of the Arizona
Constitution wanted to expand local government authority. That they
did. Given that municipal governments are creatures and subdivisions of
the state, the default rule is that they possess only such powers as are
expressly conferred upon them by the state. See City of Tucson v. Ariz.
Alpha of Sigma Alpha Epsilon, 67 Ariz. 330, 334–35 (1948). Article 13, section
2 changed that equation for charter cities, which henceforth could govern
their municipal affairs, subject to the Constitution and laws of the state. Id.
at 335. Thus, the constitutional provision greatly enlarged municipal
powers, but only insofar as the state constitution or laws did not provide
otherwise. See Tucson IV, 242 Ariz. at 607 ¶ 81 (Bolick, J., concurring).
¶54 Arizona’s first legislature following statehood appears to
have understood article 13, section 2 in this way. Recognizing that newly
approved city charters might conflict with existing statutes regulating
17
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
municipal governments, it passed in 1912 an emergency statute now
codified as A.R.S. § 9-284 (“the statute”). See 1912 Ariz. Sess. Laws, ch. 11,
§ 4 (1st Spec. Sess.). The statute provides in relevant part that where
charter provisions “are in conflict with any law relating to [charter] cities . . .
in force at the time of the adoption and approval of the charter, the
provisions of the charter shall prevail notwithstanding the conflict.”
§ 9-284(A). Charter cities remained subject to the Constitution and to
“general laws of the state not relating to cities.” § 9-284(B). However, the
statute by its terms applies only to state laws “in force at the time of the
adoption and approval of the charter.” § 9-284(A). Of course, it could
not do more than that because one legislature cannot bind a future one.
Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 6 ¶ 16 (2013). The statute
thus has no effect whatsoever on state laws enacted after a charter is
adopted, like the one before us in this case.
¶55 The enactment of the statute is highly relevant to our
constitutional interpretation, because if the Constitution itself establishes
charter city hegemony over purely local concerns, as caselaw and the
majority here assert, the statute would have been redundant and wholly
unnecessary. The legislature thought it not only necessary but urgent
enough to enact as emergency legislation. It was the statute, and not the
Constitution, that introduced into Arizona law the concept of city charters
prevailing over statutes “relating to cities,” which subsequently morphed
into the judicially created constitutional standard of whether a law is of
municipal or statewide concern.
¶56 How that happened was that, over time, judicial opinions
began to merge the statute and article 13, section 2. Early cases were
inconsistent but tended to keep the provisions analytically distinct. See
Tucson IV, 242 Ariz. at 605–06 ¶¶ 73–75 (Bolick, J., concurring). For
instance, in Clayton v. State, the Court analyzed under both article 13,
section 2 and the statute whether a charter city’s ordinance regulating
highways superseded a conflicting state statute. 38 Ariz. 135, 137–38
(1931). As a general matter, the Court explained, charter cities are
authorized by article 13, section 2 to govern matters of municipal concern
“so long as the legislation is in harmony with [the Constitution] and the
laws of the state” but that, under the statute, the charter “prevails over state
legislation conflicting therewith.” Id. at 144–45.
¶57 The Court went on to cite a Wisconsin case on the
constitutional issue. “Where ‘sovereignty’ or even ‘control’ is by
18
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
Constitution or statute distributed between the state and the city with
reference to the subjects of regulation by each, if the city were sovereign in
all ‘municipal affairs’ and the state in all other affairs, still the city could not
conclusively determine what affairs are ‘municipal’ . . . .” Id. at 145(quoting State v. Thompson, 137 N.W. 20, 31 (Wis. 1912)). Rather, “in such
case either one must have this power, and that one is the state . . . . The
[legislature] . . . can make ‘affairs’ municipal or state, as it deems wisest or
most expedient.” Id. (quoting Thompson, 137 N.W. at 31.). Thus, Clayton
embraced the view that, under article 13, section 2, the legislature alone was
empowered to determine whether a matter was one of state or local
concern.
¶58 The Court then considered the statute, which it deemed as
“[s]upplementing” article 13, section 2 by providing that city charters could
“prevail over existing laws” on local matters. Id. at 146; accord Randall, 67
Ariz. at 371 (noting that in “practically all” prior cases involving a clash
between the state and charter cities, “the effect of [the statute] has been
directly or indirectly considered by this court”); Ariz. Alpha of Sigma Alpha
Epsilon, 67 Ariz. at 335 (analyzing such a conflict under the statute, “which
supplements section 2 of article 13 of the constitution”).
¶59 But in Strode, any remaining distinction between the general
constitutional provision and the narrow statutory exception was erased.
Without acknowledgment, the Court rewrote the constitutional provision
to incorporate the statute. The majority prefers to depict Strode as
“giv[ing] effect” to article 13, section 2, supra ¶ 17, but we are not
constitutionally licensed to expand the effect of a provision beyond its plain
language. Nor does the predicate of ambiguity exist here, id., empowering
us to discover the provision’s hidden meaning. Regardless, Strode
completed the task of liberating our jurisprudence from the confines of
constitutional text, decreeing that henceforth the “provisions of [a] charter
supersede all laws of the state in conflict with such charter provisions
insofar as such laws relate to purely municipal affairs.” 72 Ariz. at 365; see
Tucson IV, 242 Ariz. at 606 ¶¶ 76–78 (Bolick, J., concurring). The
constitutional bright line was replaced by the muddle that has
characterized our jurisprudence ever since.
¶60 To reach its outcome in this case, the majority capably and
diligently navigates the shoals of Strode, as have many prior courts. But
the volume and persistence of cases pitting charter cities against the state
suggest that the boundary between state and local concern remains difficult
19
STATE EX REL. BRNOVICH V. CITY OF TUCSON
JUSTICE BOLICK, Dissenting
to discern. Sometimes the charter cities prevail, sometimes the
challengers. But in nearly every case, the taxpayers bear enormous
expense for both sides. Both the uncertainty and expense would be largely
avoided were we to hew to the language of article 13, section 2.
¶61 In Kelo v. City of New London, the U.S. Supreme Court faced a
similar dilemma in deciding whether to extend a line of cases that
contravened constitutional text. 545 U.S. 469 (2005). Specifically, the
Court long ago decided to abandon a literal application of the “public use”
requirement of the Fifth Amendment’s Takings Clause, reasoning that “it
proved to be impractical given the diverse and always evolving needs of
society.” Id. at 479. Instead, the Court “embraced the broader and more
natural interpretation of public use as ‘public purpose.’” Id. at 480. In
dissent, Justice Sandra Day O’Connor, joined by three colleagues, warned
that the practical impact of the Court’s opinion was to reduce the public use
commandment to “hortatory fluff.” Id. at 497 (O’Connor, J., dissenting).
¶62 Also dissenting, Justice Thomas remarked that the Court
“relies almost exclusively on . . . prior cases to derive today’s far-reaching,
and dangerous, result.” Id. at 523 (Thomas, J., dissenting). “When faced
with a clash of constitutional principle and a line of unreasoned cases
wholly divorced from the text, history, and structure of our founding
document, we should not hesitate to resolve the tension in favor of the
Constitution’s original meaning.” Id.¶63 The current Court did not create the jurisprudential muddle
that surrounds article 13, section 2. We inherited it. We should renounce
that legacy in favor of the far richer inheritance bestowed upon us by the
Arizona Constitution. For the foregoing reasons, and with great respect
to my colleagues, I dissent.
20