IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

CITY OF TUCSON, A MUNICIPAL CORPORATION

Plaintiff /Appellee,

and

CITY OF PHOENIX,

Intervenor-Plaintiff/Appellee,

v.

THE STATE OF ARIZONA AND KEN BENNETT, IN HIS OFFICIAL CAPACITY 

AS SECRETARY OF STATE OF ARIZONA

Defendants/Appellants.

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 Attorney, Tucson

By Dennis P. McLaughlin, 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-Plaintiff/Appellee City of Phoenix
CITY 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 Defendants/Appellants

Juan Pablo Flores, 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., was added in 2012 to require 

that most municipal candidate elections be held simultaneously with 

state 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 As originally enacted in 1996, § 16-204 limited these 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 the Legislature 

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 

 

1An 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 declaration 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 cities 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, we conclude that statemandated election alignment, when it conflicts with a city’s charter, 

improperly intrudes on the constitutional authority of charter cities. 

We therefore affirm the trial court’s judgment that § 16-204 does not 

preempt city charters 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. Their charters require candidate 

elections to be held on odd-numbered years, staggered 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 ch. XVI, §§ 2-4; Phoenix City Charter ch. III, § 6. In 

2012, the Arizona Legislature amended § 16-2042 to require charter 

 

2Section 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 required 

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 this 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. Laws, ch. 353, § 1; see also A.R.S. §§ 16-201, 

16-211.

¶5 The 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 the trial court granted. The parties filed crossmotions 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 

presented 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 amended 

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 preempts the 

constitutional authority of a charter city to direct its own affairs is a

question of law we review de novo. See Tucson I, 191 Ariz. at 437, 

957 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 article XIII, § 2 “‘was to render the cities adopting 

 

3Our 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

City 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 relevant interest is local, the 

city’s charter supersedes the statute. See Tucson II, 229 Ariz. 172, 

¶ 20, 273 P.3d at 628; 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.” 

Tucson II, 229 Ariz. 172, ¶ 20, 273 P.3d at 628. “The concepts of

‘local’ versus ‘statewide’ interest do not have self-evident 

definitions.” Id. Our supreme court has not provided an explicit 

framework through which we might analyze the question before us;

rather, “distinguishing between matters that are properly subject 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 Our supreme 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 charter city’s autonomy involving the nonpartisan election system adopted by the City of Phoenix. See Strode, 

72 Ariz. at 361-62, 236 P.2d at 49-50; Phoenix City Charter ch. XII, 

§ 9. At the time, state statutes permitted candidates for state, 

county, and city offices to be nominated as a member of a political 

party. See Strode, 72 Ariz. at 361-64, 236 P.2d at 50-51; 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 ch. 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 shall 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 offcycle 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 laws that are “purely 

municipal.” It argues, 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 

disagree. 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 

rationale employed by Strode and reached the same result while 

acknowledging potential statewide interests 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 628. 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. Instead, 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 Tucson’s use of at-large council elections.” Id.

¶ 36. Although the court acknowledged that the city must comply 

 

4The 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 decision, 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 discriminatory 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, the 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 An Expression

of Charter City Autonomy

¶12 The state acknowledges that the Legislature cannot 

regulate the “method and manner” of conducting municipal 

elections. See Tucson II, 229 Ariz. 172, ¶ 22, 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 id. ¶ 35. We 

agree with the state that dicta from Tucson II arguably places election 

dates outside of local 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) requires 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 

numerous election issues. An off-cycle election allows a city to

obtain the full focus of the electorate and to insulate its electoral 
CITY 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. Additionally, 

municipal candidates may have a more difficult time competing 

with state and national candidates for resources if the elections are 

aligned. Even if the candidates receive sufficient resources, it may 

be more difficult or expensive to use those resources for election 

advertising during general elections.

¶15 The 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 Gersen 

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).

 

5Voter 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 viiviii (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, whether 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. 

172, ¶ 46, 273 P.3d at 632.

6 The “administrative aspects” of elections 

do not encompass substantive policy matters. Id. ¶ 35. For instance, 

our 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 elections

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 

declaration7 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 portion of the 

declaration was not modified or updated in 2012. 2012 Ariz. Sess. 

 

6Tucson 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 

contention 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 

findings, 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 state 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 declaration even applies to the 2012 

amendment. While it is possible that conditions changed in the 

interim period necessitating broader alignment, the state advances 

no facts or legislative findings to support such a conclusion.

¶18 The 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 Reg. sess. (Feb. 16, 2012); Hearing on 

H.B. 2826 Before the S. Comm. on Judiciary, 50th Leg., 2d Reg. 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 Reg. sess. (March 1, 2012) (statement of Rep. 

John Kavanagh, relating positive experience of Scottsdale in aligning 

its election, but omitting any benefit for non-city voters).

¶19 Similarly, in its legal argument the 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 

Constitution 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 interests 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 County, 474 P.2d 877, 878 (Wash. 1970), the 
CITY OF TUCSON v. STATE OF ARIZONA

Opinion of the Court

13

Washington Supreme Court held that a county adopting a home rule 

charter could elect its officers in odd-numbered years despite an 

earlier constitutional provision establishing county elections in evennumbered 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 local 

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 

why 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 Arizona in 2014.

Disposition

¶21 In light of the foregoing, 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.