IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

C ITY OF T UCSON , A MUNICIPAL CORPORAT ION

Plaintiff / Appellee
,

and

C ITY OF P HOENIX , Intervenor

- Plaintiff/Appellee
,

v.

T HE S TATE OF A RIZONA AND K EN B ENNETT , IN HIS OF FICIAL CAPACITY

AS S ECRETARY OF S TATE OF A RIZONA Defendants/

Appellant s

.

No. 2 CA

- CV 2013

- 0146 Filed August 18, 2014

Appeal from the Superior Court in Pima County

No. C20126272 The Honorable James E. Marner , Judge

AFFIRMED

COUNSEL

Michael G. Rankin, Tucson City Attorn ey , Tucson By Dennis P. McLaug h lin, Principal Assistant City Attorney Counsel for Plaintiff/Appellee City of Tucson

Daniel L. Brown, Acting Phoenix City Attorney , Phoenix By Sandra Hunter, Assistant Chief Counsel Counsel for Intervenor

- Plaintif f /Appellee City of PhoenixCITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

2 Thomas C. Horne, Arizona Attorney General By Paula S. Bickett, Chief Counsel, Civil Appeals, Phoenix Diana Day, Assistant Attorney General Counsel for D efendant s

/Appellant s

Juan Pablo Flor es, Douglas City Attorney, Douglas Counsel for Amicus Curiae City of Douglas

Judith R. Baumann, Tempe City Attorney, Tempe By David Park, Assistant City Attorney Counsel for Amicus Curiae City of Tempe

OPINION

Judge Miller authored the opinion of the Court, in which Judge Howard and Judge Vásquez concurred.

M I L L E R, Judge:

¶1 Section 16

- 204 (E) , A.R.S
., w as added in 2012 to require that most municipal candidate elections b e held simultaneous ly with

s tate and national candidate elections. 2012 Ariz . Sess. Laws, ch. 353, § 1. As originally enacted in 1996
, § 16

- 204 limited these elections to only four specified days each year, which t he L egislature declared was for the “purpose[] of increasing voter participation and for decreasing the costs to taxpayers

. ” 1996 Ariz. Sess. Laws, ch. 271, § 16. By mandating municipal candidate elections be held on

even

- numbered years, concurrent with general elections , the amended statute banned off

- cycle municipal candidate elections. 1

1 An election held on a date different from state and national elections is referred to as an off

- cycle election. See, e.g.
, United States v. Village of Port Chester, 704 F. Supp. 2d 411, 420 (S.D.N.Y. 2010) (“Village elections for Mayor and Trustees are held ‘off cycle’

— that is, they are not conducted in November alongside other county, state, and national elections, but instead are held in the spring,CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

3 Relying on the declarati on of purpose for the original statute
, the
state contends the amendment is a matter of statewide concern that preempts city charter provisions to the contrary. § 16

- 204(A) , (E)

. The c it ies of Tucson and Phoenix sought declaratory and injunctive relief, arguing the Arizona Constitution did not grant the legislature authority to preempt their charters that mandate candidate elections be held on odd

- numbered years. The cities’ position is supported in amicus briefs filed by the cities of Douglas and Tempe.

¶2 This appeal requires us to determine whether the authority of charter cities to structure how their governing officers

are elected includes the power to schedule their election cycles wholly separate from state

- wide elections

. We also consider
, consistent with our case law
, whether the selection of an off

- cycle election is a matter affecting “ ‘ the method and manner of conducting elections
, ’ ” or is limited to an “administrative aspect [] of elections.” City of Tucson v. State , 229 Ariz. 172, ¶¶ 32, 35, 273 P.3d 624, 629

- 30 (2012) ( Tucson II )
, quoting Strode v. Sullivan , 72 Ariz. 360, 368, 236 P.2d 48, 54 (1951).

¶3 For the reasons that follow, w e conclude that state

mandated election alignment, when it conflicts with a city’s charter, improperly int rudes on the constitutional authority of charter cities

. We therefore affirm the trial court’s judgment that § 16

- 204 does not preempt cit y charter s that require odd

- numbered year election dates.
Factual and Procedural Background

¶4 The cities of Tucson and Phoenix are chartered under the Arizona Constitution. Ariz. Const. art. XIII, § 2 ; Tucson City Charter ch. I; Phoenix City Charter
, Preamble ; see also Tucson II , 229 Ariz. 172, n.1, 273 P.3d at 626 n.1

. Th eir charter s require candidate ele ctions to be held on odd

- numbered years, stagger ed from the

even

- numbered

- year federal, state, and county elections. Tucson

usually on the third Tuesday in March.”). An odd

- year election is necessarily an off

- cycle election. See Ariz. Const. art. VII, § 11 (requiring biennial general elections on even

- numbered years).CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

4 City Charter c h. XVI, §§ 2

- 4 ; Phoenix City Charter ch . III, § 6. In 2012, the Arizona Legislature amended § 16

- 204 2 to require charter

2 Section 16

- 204 now states in relevant part:

E. Beginning with elections held in 2014 and later and notwithstanding any other law or any charter or ordinance to the contrary, a candidate election held for or on behalf of any political subdivision of this state other than a special election to fill a vacancy or a recall election may only be held on the following dates and only in even

- numbered years:

1. The tenth Tuesday before the first Tuesday after the first Monday in November. If the political subdivision holds a primary or first election and a general or runoff election is either requir ed or optional for that political subdivision, the first election shall be held on this date, without regard to whether the political subdivision designates the election a primary election, a first election, a preliminary election or any other descriptive term.

2. The first Tuesday after the first Monday in November. If the political subdivision holds a general election or a runoff election, the second election held shall be held on this date. If the political subdivision holds only a single election and no preliminary or primary or other election is ever held for the purpose of reducing the number of candidates, or receiving a partisan nomination or designation or for any other purpose for that political subdivision, the single election shall be held on t his date.CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

5 cities to hold their first (primary or general) and second (general or runoff) candidate elections on the same two days that the state holds its primary and general elections for county, state, and federal offices. 2012 Ariz. Sess. Law s , ch . 353, § 1 ; see also A.R.S. §§ 16

- 201
, 16

- 211

. ¶5 T he City of Tucson sought declaratory and injunctive relief against the state and Ken Bennett, in his official capacity as secretary of state. Appellee City of Phoenix moved to intervene
, which motion th e trial court granted. The parties filed cross

mo tions for summary judgment, asserting that no genuine issue of material fact existed and they were entitled to judgment as a matter of law

. The court denied the motions, finding that the parties had
presen ted conflicting factual claims and that an evidentiary hearing was “necessary to allow the Court to determine as a matter of fact whether the state’s interests are paramount thereby mandating adoption of the election schedule described in the recently amen ded version of A.R.S. § 16

- 204 by Tucson and Phoenix, ” citing City of Tucson v. State , 191 Ariz. 436, 957 P.2d 341 (App. 1997) ( Tucson I )

. After a two

- day evidentiary hearing
, 3 the court granted relief in favor of the cities , and this appeal followed. We have jurisdiction pursuant to A.R.S. § 12

- 2101(A)(1)

.
Discussion

¶6 Whether § 16

- 204(E) improperly preempt s the constitutional authority of a charter city to direct its own affairs i s a question of law w e review de novo

. See Tucson I , 191 Ariz. at 437, 95 7 P.2d at 342 ; see also Tucson II , 229 Ariz. 172, ¶ 34, 273 P.3d at 630

. Under the Arizona Constitution, a city with a population of more than 3,500 people is entitled to establish a charter for its government. Ariz. Const. art. XIII, § 2 ; see also John D. Leshy, The Arizona State Constitution 333 (2d ed. 2013)

. Known as the home

- rule provision, the purpose of a rticle XIII
, § 2 “ ‘ was to render the cities adopting

3 Our resolution of the issue on appeal is necessarily an ad hoc determination that does not turn on disputed questions of adjudicative fact. See Tucson II , 229 Ariz. 172, ¶ 20, 273 P.3d at 628. Thus, we do not review the trial court’s findings of fact.CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

6 such charter provisions as nearly independent of state legislation as was possible .’” Tucson II , 229 Ariz. 172, ¶ 9, 273 P.3d at 626, quoting Cit y of Tucson v. Walker , 60 Ariz. 232, 239, 135 P.2d 223, 226 (1943) ; see also Leshy, supra , at 333

- 34

. Our supreme court has held that a charter city is granted autonomy over matters of local interest. See
, e.g. , Tucson II

, 229 Ariz. 172, ¶¶ 45

- 47, 273 P.3d at 631

- 32 ; Strode , 72 Ariz. at 364

- 65, 236 P.2d at 51

. If a state law conflicts with the provisions of a city charter and the rele vant interest is local, the city’s charter supersedes the statute. See Tucson II , 229 Ariz. 172, ¶ 20, 273 P.3d at 62 8 ; Strode , 72 Ariz. at 364

- 65, 236 P.2d at 51

. Because § 16

- 204(E) conflicts with the cities’ charters, we must determine whether the interests affected are local or statewide.

¶7 Determining whether the subject matter at issue is of statewide or local interest “can be problematic in application.” T ucson II , 229 Ariz. 172, ¶ 20, 273 P.3d at 6 28 . “ The concepts of ‘local’ versus ‘statewide’ interest do not have self

- evident definitions.” Id. O ur supreme court has not provided an explicit framework through which we might analyze the question before us ;

r ather, “distinguishing between matters that are properly subj ect to local versus state control often involves case

- specific line drawing.” Id

. This is not a problem unique to Arizona. In their expansive review of how courts address this issue , professors Baker and Rodriguez observed:

Where the state constitution grants localities sovereign power in the area of local affairs, the task falls to the court to discern just what is or is not a local affair. The nature of the project is necessarily ad hoc: The courts are asked to evaluate specific exercises of municipal power against the background of language, typically “local affairs” or “municipal affairs,” that is notoriously ambiguous.
Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny , 86 Denv. U. L. Rev. 1337, 1344 (2009)

. In the context of election

- related matters , Arizona cases particularly focus on whether a conflicting statute affects the autonomy of a charter city,CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

7 for which the manner and method of conducting elections is a critical component

. Charter City Autonomy

¶8 O ur suprem e court has been “absolutely clear that charter city governments enjoy autonomy with respect to structuring their own governments.” Tucson II , 229 Ariz. 172, ¶ 21, 273 P.3d at 628

. More than sixty years ago, in Strode
, our supreme court considered a char ter city’s autonomy involving the non

partisan election system adopted by the City of Phoenix. See Strode
, 72 Ariz. at 361

- 62, 236 P.2d at 49

- 50 ; Phoenix City Charter c h

. XII
, § 9 . At the time, state statutes permitted candidates for state, county, and c ity offices to be nominated as a member of a political party. See Strode , 72 Ariz. at 36 1

- 64, 236 P.2d at 50

- 5 1 ; see also Tucson II , 229 Ariz. 172, ¶ 18, 273 P.3d at 627 . The court concluded that these statutes did not displace the Phoenix charter, which provided that “ ‘ nothing on the ballot shall be indicative of the source of the candidacy or the support of any candidate. ’ ” Strode , 72 Ariz. at 363
, 368 , 236 P.2d at 50
, 54, quoting Phoenix City Charter c h. XII, § 9 ; see also Tucson II

, 229 Ariz. 172, ¶ 18, 273 P.3d at 627

. ¶9 The supreme court in Strode emphasized the importance of protecting a charter city’s authority to structure its own government :

The framers of the Constitution, in authorizing a qualified city to frame a charter for its own government, certainly contemplated the need for officers and the necessity of a procedure for their selection. These are essentials which are confronted at the very inception of any undertaking looking toward the preparation of a governmental structure. We can conceive of no essentials more inherently of local interest or concern to the electors of a city than who shall be its governing officers and how they sh all be selected.CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

8 72 Ariz. at 368, 236 P.2d at 54 (emphasis added)

. Therefore, if an off

cycle election affects the method and manner of selecting its governing officers, the constitution protects the autonomy of the charter city

. ¶10 The state contends other language in Strode limits the constitutional authority of city charters to law s that are “purely municipal

. ” It argue s, not without persuasive force, that “purely” is

a term of exclusion. Stated simply, the state would limit Strode ’ s holding to statutes without any potential statewide interest. We dis agree. First, the seemingly exclusionary language in Strode derives from multiple citations to Oklahoma cases that employ the terms as dicta. See
, e.g. , City of Wewoka v. Rodman , 46 P.2d 334, 335 ( Okla. 1935) (charter city control over fire department is “purely” and “solely” matter of local concern); Lackey v. State , 116 P. 913, 919 (Okla. 1911) (date of elections is a “ mere municipal matter ”). 4

¶11 Second, in Tucson II our supreme court reaffirmed the ratio nale employed by Strode and reached the same result while acknowledging potential statewide interest s at play

. The court first observed that “[m]any municipal issues will be of both local and state concern.” Tucson II , 229 Ariz. 172
, ¶ 20 , 273 P.3d at 62 8

. If, as the state contends, the mere existence of a potential state interest is sufficient to negate a finding of a “purely” local interest, then the court’s analysis would have ended and it would have concluded the
statute applies to Tucson’s elections

. I nstead, the court examined each of the potential statewide interests to determine if any trumped Tucson’s charter. For example, the state argued “the federal Voting Rights Act ( ‘ VRA ’ ) , 42 U.S.C. § 1973 (2006), creates a statewide interest in barring T ucson ’ s use of at

- large council elections.” Id. ¶ 36. Although the court acknowledged that the city must comply

4 The holding in Lackey is particularly significant because if it were unequivocally adopted in Arizona, the decision would resolve the case adverse to the state without further discussion. See 116 P. at 918

- 19. As we discuss later in this decisi on, however, the holding in Tucson I and the adoption of some of its reasoning in Tucson II militate against the bright

- line rule of Lackey notwithstanding its endorsement in Strode

.CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

9 with applicable federal law, and the state’s compliance with the VRA could be affected if “its political subdivisions

. . . engaged in any dis criminatory voting practice,” there was no evidence of VRA violations by the city. Id. ¶ ¶ 37

- 38. It held that “ [ c ] oncerns to prevent possible violations of the VRA,” which are of statewide interest, “do not support . . . trumping Tucson’s charter.” Id. ¶ 39. We conclude, therefore, t he possibility of a statewide interest in a statute does not bar the conclusion that the statute impermissibly reaches an area of “purely” or “solely” local interest. See id.

The Method and Manner of Conducting Elections Is A n Expression of Charter City Autonom y
¶12 The state acknowledges that the Legislature cannot regulate the “ method and manner ” of conducting municipal elections. See Tucson II , 229 Ariz. 17 2 , ¶ 2 2 , 273 P.3d at 628 . It contends, however, our supreme court determined the choice of an election date to be a permissible legislative function that only involves the “administrative aspects of elections.” See i d. ¶ 35. We agree with the state that dicta from Tucson II arguably places election dates outside of loc al autonomy and interest, but the case from which the dicta is derived, Tucson I , cannot be stretched so far

. ¶13 As originally enacted, § 16

- 204 merely restricted elections held by political subdivisions to four specified dates during the year. Tucson I

, 191 Ariz. at 437, 957 P.2d at 342 . The practical impact on the City of Tucson was minor: a one

- week change in the date of its primary election. Id. at 439, 957 P.2d at 344

. Section 16

- 204(E) , on the other hand, would require major changes to city charters and election procedures , including altering the terms of office for some officials. The state responds that even if these changes are significant, they are “one

- time” adjustments to achieve election alignment. Assuming for the purpose of argument that § 16

- 204(E) require s minor, one

- time adjustments
, we next address whether an off

- cycle election is an integral component of the method and manner of conducting elections.

¶14 The cities argue that election alignment affects

numero us election issues. A n off

- cycle election allows a city to obtain the full focus of the electorate and to insulate its electoralCITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

10 process from the influence of partisan issues that are inevitably interwoven with federal, state, and county elections. Addit ionally, municipal candidates may have a more difficult time competing with state and national candidates for resources if the elections are al igned. Even if the candidates receive sufficient resources, it may be more difficult or expensive to use those r esources for election advertising during general elections

. ¶15 T he decision to hold an off

- cycle election may also affect voter participation . The cities and state seemingly agree on this point, although they disagree whether the ultimate impact is positive or negative because of additional factors, such as voter fatigue and ballot roll

- off. 5 These differing conclusions illustrate valid policy disagreements and, potentially, qualitatively different results in election outcomes. As law professors Barry and G ersen observed :
[T] he timing of local government elections

has significant implications for local democratic process. Electoral timing significantly influences voter turnout and generates identifiable differences in substantive policy outcomes.
Christopher R. Berry & Jacob E. Gersen, The Timing of Elections , 77 U. Chi. L. Rev. 37
, 55 (2010)

.

5 Voter fatigue refers to reluctance of voters to participate in multiple elections held on different dates. Cf. Zoltan L. Hajnal et al., Municipal Elections in California: Turnout, Timing, and Competition vii

viii (2012) (voter turnout affected by timing of local election, including whether local election held concurrent with statewide election). Ballot roll

- off describes the phenomenon where fewer votes are cast as the ballot extends in length. Cf. Green Party of Tennessee v. Hargett , 953 F. Supp. 2d 816, 833 (M.D. Tenn. 2013) (increase in physical dimension of ballot, whet her size of paper or number of pages, may increase likelihood that voters fail to complete their ballots).CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

11 ¶16 Our supreme court concluded that when there are “competing policy concerns” in the manner of the election, “Arizona’s Constitution entrusts those issues to the voters of charter cities [if the statute conflicts with the charter].” Tucson II , 229 Ariz. 17 2
, ¶ 46, 273 P.3d at 632

. 6 The “administrative aspects” of elections do not encompass substantive policy matters

. Id. ¶ 35. For instance,

o ur supreme court explained that whether or not a charter city conducts a partisan election involves competing policy concerns that Arizona’s Constitution entrusts to the voters of a charter city. Id. ¶¶ 46

- 47 ; see also Strode , 72 Ariz. at 368

- 69, 236 P.2d at 54

. Similarly, the home rule charter provision of article XIII , § 2 entrusts charter city voters to determine whether they want their municipal election s shaped by state , county, or federal partisan issues.

¶17 We next examine whether the state identifies actual statewide interests. The state relies upon the 1996 legislative declaration 7 that the statute was for “the purposes of increasing voter participation and for decreasing the costs to the taxpayers.” A.R.S. § 16

- 204(A). Initially, we note that this portio n of the declaration was not modified or updated in 2012. 2012 Ariz. Sess.

6 Tucson II is also notable for the absence of any reference to the balancing test outlined in Tucson I

. See Tucson I
, 191 Ariz. at 439, 957 P.2d at 344 . Instead, Tucson II instructs that the Arizona Constitution places with the voters the responsibility to choose between competing policy concerns. Tucson II , 229 Ariz. 172, ¶ 46, 273 P.3d at 632

. From that perspective, we agree with the state’s
cont ention that the trial court erred in applying a balancing test.

7 To the extent the state argues we must defer to the Legislature’s declaration that § 16

- 204 concerns a matter of statewide interest, we disagree. We must respect and consider legislative fin dings, but “whether state law prevails over conflicting charter provisions under Article 13, Section 2 is a question of constitutional interpretation,” within the exclusive province of the courts. Tucson II , 229 Ariz. 172, ¶ 34, 273 P.3d at 630 ; see also Walker , 60 Ariz. at 238

- 39, 135 P.2d at 226

- 27 ; cf. Forty

- Seventh Legislature of State v. Napolitano , 213 Ariz. 482, ¶ 8, 143 P.3d 1023, 1026 (2006) (noting courts ultimately responsible for interpreting constitution).CITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

12 Laws , ch. 353, § 1. This begs the question : if mandatory alignment of off

- cycle charter city elections increases voter participation and decreases taxpayer costs, wouldn’t the s t a t e have had the same interest when the original statute was enacted sixteen years earlier? If so, presumably the Legislature would have aligned off

- year elections in 1996. That it did not take that action in 1996 causes doubt as to whether its declarati on even applies to the 2012 amendment. While it is possible that conditions changed in the interim period necessitat ing broader alignment, the state advances no facts or legislative findings to support such a conclusion.

¶18 T he state also relies upon the comments of legislators and the bill’s supporters that the amendment would decrease costs and increase voter turnout. See Hearing on H

. B

. 2826 Before the H. Comm. on Judiciary
, 50th Leg., 2d R eg. sess. (Feb. 16, 2012) ; Hearing on H.B. 2826 Before the S. Comm. on Judiciary
, 50th Leg., 2d R eg. sess. (March 12, 2012). Notably missing from the comments , however, was factual support for how the state’s own interests would be affected. See
, e.g. , Hearing on H.B. 2826 Before the H. Comm. of the Whole , 50th Leg., 2d R eg. sess. (March 1, 2012) (statement of Rep. John Kav a nagh, relating positive experience of Scottsdale in aligning its election, but omitting any benefit for non

- city voters).

¶19 Similarly, in its legal argument t he state does not posit that interests outside of the charter cities are affected. For instance, assuming that alignment decreases “costs to taxpayers ,” are those city or state taxpayers? If the latter, the state provides no support for its contention. If only city costs are implicated , then the Arizona C onstitution delegates to the city’s voters to determine whether its
costs actually would decrease and, if so, whether the decrease is worth the trade

- off in loss of off

- cycle election benefits. See Tucson II , 229 Ariz. 172, ¶ 46 , 273 P.3d at 632

. The same questions and conclusions apply to the state’s contention regarding voter participation. We conclude the state has not shown § 16

- 204(E) implicates an existing, statewide interest that is not independent of the i nterests of the charter cities.

¶20 Finally, our own research discloses one out

- of

- state case involving off

- cycle elections by a home

- rule jurisdiction. In State ex rel. Carroll v. King C ou nty , 474 P.2d 877, 878 ( Wash. 1970), theCITY OF TUCSON v . STATE OF ARIZONA Opinion of the Court

13 Washington Supreme Court held that a cou nty adopting a home rule charter could elect its officers in odd

- numbered years despite an earlier constitutional provision establishing county elections in even

numbered years. Although the court was required to resolve arguably conflicting state constitutional provisions, it relied on principles similar to those expressed in Strode and Tucson II :

The people of this state, in adopting [a home rule enabling mechanism]
, manifested an intent that they should have the right to conduct their purely loca l affairs without supervision by the state, so long as they abided by the provisions of the constitution and did not run counter to considerations of public policy of broad concern, expressed in general laws. The respondent has suggested no sound reason wh y the state should have an interest in the dates of elections which concern only the residents of a county.

Id. at 880

. The reasoning applied in Oklahoma in 1911 or Washington in 1970 applies equally to Ariz ona in 2014.
Disposit ion

¶21 In light of the foregoi ng, we affirm the trial court’s grant of a permanent injunction enjoining the State of Arizona from requiring the City of Tucson and the City of Phoenix to comply with the candidate election scheduling requirements of § 16

- 204 , as amended.