State’s top court got this election case wrong

Is there a statewide interest in ensuring that city governance rests upon the broadest possible consent of the governed?

That there is seems self-evident and unarguable. But the Arizona Supreme Court, befogged by its own jurisprudence, just can’t discern it.

The court, in a recent decision, held that the Legislature can’t require cities to hold their elections in conjunction with the state’s primary and general elections. That’s when turnout is the greatest and the only way to ensure that city governance enjoys the broadest possible consent of the governed.

In response, the Legislature should refer the requirement to voters as a constitutional amendment for the 2022 ballot. And if the votes can’t be had in the Legislature, the Arizona Republican Party should pause its cannibalism and mount an initiative drive to do the same.

The majority opinion in the case, written by Justice Ann Timmer, basically rehashed previous precedents. The court has long maintained a distinction between what it calls “purely municipal concerns” and “statewide concerns.” If something falls within the “purely municipal” bucket, then the Legislature can’t override what a charter city decides for itself.

In the real world, virtually no issue falls neatly and completely into one of the two buckets the court has invented. Timmer’s opinion admits as much: “Identifying ‘purely municipal’ versus ‘statewide’ interests is often challenging, as the variety of case-specific facts makes setting precise definitions difficult.”

Over the years, what the court has determined falls within which bucket seems pretty arbitrary with no real guiding principle at work. And that’s true even on the question of when city elections are to be held.

The Legislature tiptoed into this arena by passing a law requiring that city elections be held on one of four dates during the year. That requirement was upheld by the Court of Appeals in 1997. Timmer’s opinion cites that case without any suggestion that it was wrongly decided.

So, there was a statewide interest in restricting city elections to four times a year, but not in taking the additional step of requiring candidate elections to be held when voter turnout would be greatest? Timmer’s opinion fails to explain where along that continuum the statewide interest in when city elections are held evaporates and what is left is a purely municipal interest.

Justice Clint Bolick’s solitary dissent points out how unnecessary all this fine parsing of what falls into what bucket should be. The state constitution clearly states that city charters are “subject to … the laws of the state.” There is no exception in the state constitution for “purely municipal concerns.”

This court, largely consisting of justices appointed by Gov. Doug Ducey, has been willing to clean up jurisprudential messes created by their predecessors, rather than being hidebound by precedents. It has done so regarding the jurisdiction of the Corporation Commission and the state constitution’s anti-subsidy clause.

But not, clearly, with respect to the relationship between state law and city charters.

The overwhelming majority of Arizona cities have already conformed the schedule of their candidate elections to coincide with the state primary and general elections. But the two largest cities – Phoenix and Tucson, which was the subject of the recent litigation – are holdouts.

And there’s another issue. Many cities hold tax increase and bond elections when turnout will be low. These matters should also be required to be held in conjunction with the state’s general election, when turnout will be greatest.

This shouldn’t be a partisan issue. Everyone should agree that city governance should rest on the broadest possible expression of consent by the governed.

But there are partisan implications. Democratic candidates and causes do better in small turnout city elections. Democrats are unlikely to give up that advantage to further the principle of the broadest possible consent.

Republicans in the Legislature will likely consider referring a constitutional amendment requiring consolidated elections. But they need unanimity within their ranks to do so. I suspect the cities would have a good shot at picking off one or two caucus members.

The principle of consolidated elections largely unites Republicans and would give them an advantage in elections held in the holdout cities.

The Arizona Republican Party is in disarray, still riven by the last election and lingering Trump loyalty tests.

An initiative drive for consolidated elections might be unifying and healing. Consider it a form of therapy.

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