IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

CITY OF TUCSON, a municipal ) 2 CA-CV 2010-0083

corporation, ) DEPARTMENT A

)

Plaintiff/Appellant, ) O P I N I O N

)

v. )

)

STATE OF ARIZONA, )

)

Defendant/Appellee, )

)

and )

)

SOUTHERN ARIZONA LEADERSHIP )

COUNCIL and SENATOR JONATHAN )

PATON, )

)

Defendant-Intervenors/Appellees. )

)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20097207

Honorable Michael O. Miller, Judge

REVERSED AND REMANDED

Michael G. Rankin, Tucson City Attorney

 By Dennis McLaughlin Tucson

Attorneys for Plaintiff/Appellant

Thomas C. Horne, Arizona Attorney General

 By Mary R. O‟Grady, Solicitor General, and

 Barbara A. Bailey Phoenix

Attorneys for Defendant/Appellee

FILED BY CLERK

COURT OF APPEALS

DIVISION TWO

APR 20 2011
2

Lewis and Roca LLP

 By S.L. Schorr, Kimberly A. Demarchi, and

 John Hinderaker Tucson

Attorneys for Defendant-Intervenors/Appellees

H O W A R D, Chief Judge.

¶1 The City of Tucson appeals from the trial court‟s grant of summary 

judgment in favor of appellees State of Arizona, Southern Arizona Leadership Council, 

and former state senator Jonathan Paton (collectively “state”). The city argues the court 

erred because the Tucson city charter regarding local elections supersedes the 

legislature‟s 2009 amendments to A.R.S. § 9-821.01. Because the method and manner of 

conducting municipal elections is solely a matter of local concern, we reverse and 

remand.

Factual and Procedural Background

¶2 We view the facts and reasonable inferences from those facts in the light 

most favorable to the party against whom summary judgment was granted. Andrews v. 

Blake, 205 Ariz. 236, ¶ 12, 69 P.3d 7, 11 (2003). The City of Tucson is chartered under 

the Arizona Constitution. City council members are nominated by ward but elected by 

at-large, general elections, and both the primary and general elections are partisan in 

nature. In 2009, the state enacted a law amending A.R.S. § 9-821.01, which addresses 

elections in Arizona‟s cities and towns. 2009 Ariz. Sess. Laws, ch. 176, § 1.

¶3 Section 9-821.01 now states: 
3

(B) Notwithstanding any other law, a city or town shall 

not hold any election on candidates for which there is any 

indication on the ballot of the source of the candidacy or of 

the support of the candidate.

(C) Notwithstanding any other law, for any city or 

town that provides for election of city or town council 

members by district, ward, precinct or other geographical 

designation, only those voters who are qualified electors of 

the district, ward, precinct or other geographic designation are 

eligible to vote for that council member candidate in the city 

or town‟s primary, general, runoff or other election.

¶4 Claiming that the amended law would require the city to change its 

elections process, the city sued the state1seeking declaratory and injunctive relief. 

Appellees Southern Arizona Leadership Council and Paton filed a stipulated motion to 

intervene in the lawsuit, and the trial court granted their request. The state filed a motion 

for judgment, and the city responded with a cross-motion for judgment. The parties 

agreed their motions would be decided as cross-motions for summary judgment. The 

court then entered summary judgment in favor of the state, and this appeal followed.

Charter Cities

¶5 The city argues that the trial court erred in granting summary judgment in 

favor of the state because several provisions of the city‟s charter conflict with the 

prohibition of partisan and at-large municipal elections in § 9-821.01(B) and (C) and the 

charter supersedes the statute because the issues “relate to matters of purely local 

concern.” The state asserts the statute and charter do not conflict with respect to the 

 

1

The city also sued the governor and the secretary of state in their official 

capacities, but the city agreed to their dismissal, and they are not parties to this appeal.
4

prohibition of partisan elections. We review de novo a grant of summary judgment. 

Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244, ¶ 14, 129 P.3d 966, 971 (App. 

2006).

¶6 Under the Arizona Constitution, a city with a population over 3,500 is 

entitled to establish a charter for its government. Ariz. Const. art. XIII, § 2. Our supreme 

court has held that this charter generally grants a city autonomy over matters of solely 

local concern. See, e.g., Strode v. Sullivan, 72 Ariz. 360, 364-65, 236 P.2d 48, 51 (1951).

Thus, if a state law conflicts with the provisions of a city charter and if the relevant 

interest is solely local, the city‟s charter supersedes the statute. Id. On the other hand, if 

the interest affected is of statewide concern, the statute will supersede the conflicting 

provisions of the city charter. Id. at 363, 236 P.2d at 50. Therefore, to the extent there is 

a conflict, we must determine whether the issues are local or statewide. 

Conflict

¶7 The state first argues that there is no conflict between the city‟s charter and 

§ 9-821.01(B) concerning partisan elections because the charter does not require the city 

to hold such elections.2 We consider the pertinent sections of the city‟s charter to 

determine whether a conflict exists.

¶8 Chapter XVI, § 2, of the city‟s charter states, in relevant part:

The provisions of the general laws of the State of Arizona 

relating to and governing primary elections and the 

 

2

The state does not dispute that there is a conflict with respect to § 9-821.01(C),

which involves ward-based rather than at-large elections.
5

nomination of elective officers, whether by primary or 

certificate of nomination (being the whole of title 16, Arizona 

Revised Statutes, 1956, and each and every provision of said 

title with all amendments and supplements thereto) applicable 

to a city of the population and the class of this city, shall 

apply and govern the holding of primaries and nominations of 

elective officers. The mayor and council shall have power to 

make any further and additional provisions relating to 

primaries and nominations of officers not repugnant or 

contrary to the provisions of the constitution and the laws of 

the state or any amendments and supplements thereto.

Tucson City Charter, ch. XVI, § 2. Addressing the administration of the city‟s primary 

elections and nomination of officers, this section incorporates state election law, found in 

title 16, A.R.S. Id. The state election laws address, inter alia, partisan primary elections.

See, e.g., A.R.S. § 16-502(B), (C). And, although the state is correct that the statutes also 

address nonpartisan nomination of candidates, see A.R.S. § 16-314(A), (C), the city 

charter‟s incorporation of the statute on partisan elections is sufficient to demonstrate 

that, at a minimum, the charter permits partisan primaries.

¶9 The state further argues there is no conflict because § 2 of the charter also 

incorporates the amendments to § 9-821.01 at issue here. But the city contends § 2 does 

not incorporate § 9-821.01, and its “interpretation of its own Charter is entitled to some 

weight.” City of Tucson v. State (City of Tucson), 191 Ariz. 436, 437, 957 P.2d 341, 342 

(App. 1997). Further, its interpretation is supported by the charter language, which

expressly refers to title 16 and incorporates “[t]he provisions of the general laws . . . 

relating to and governing primary elections and the nomination of elective officers.”

Tucson City Charter, ch. XVI, § 2. Section 9-821.01 is not a general election law; rather 
6

it is directed toward cities and is included in title 9, which is entitled, “Cities and Towns.” 

Additionally, even if the last sentence required more general compliance with state law, 

as the state contends, it would apply only to primaries, and the conflict would continue as 

to the partisan general elections. Therefore, the city‟s charter does not incorporate § 9-

821.01.

¶10 Additionally, § 7 of the charter states:

The provisions of the general laws of the State of 

Arizona, governing the elections of state and county officers, 

not inconsistent with the provisions of this Charter, shall 

govern the said elections, in matters for which no provision is 

made in this Charter, or by ordinance, and the mayor and 

council and clerk, respectively, shall exercise the powers and 

perform the duties conferred or imposed by such laws on the 

board of supervisors and clerks of counties concerning 

elections.

Tucson City Charter, ch. XVI, § 7. But § 7 does not support the state‟s position because 

it is a gap-filling provision that incorporates the general election laws concerning state 

and county offices when there is no counterpart in the city‟s charter. Section 9-821.01,

on the other hand, governs solely municipal elections. Section 7 of the city‟s charter, 

therefore, does not incorporate § 9-821.01.

¶11 Thus, at a minimum, and notwithstanding the amendments to § 9-821.01, 

the city‟s charter does allow partisan elections through its incorporation of state election 

law. See Tucson City Charter, ch. XVI, §§ 2, 7. And the city has been conducting 

partisan elections for some time. So the statute‟s prohibition of partisan elections, in fact, 

interferes with the city‟s authority to control its municipal affairs. Because the statute 
7

conflicts with provisions of the city‟s charter concerning both issues, the relevant 

determination is whether the interests affected are statewide or local.

Local versus Statewide Concern

¶12 The city preliminarily contends we should assess the state‟s arguments 

using the test from Luhrs v. City of Phoenix, 52 Ariz. 438, 83 P.2d 283 (1938), City of 

Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 164 P.2d 598 (1945), and McMann 

v. City of Tucson, 202 Ariz. 468, 47 P.3d 672 (App. 2002), which considers a city activity 

to be of statewide interest when the city acts as an agent of the state. See, e.g., McMann, 

202 Ariz. 468, ¶ 9, 47 P.3d at 676. But this is a proprietary-versus-governmental-activity 

test, which is not the favored test and is not helpful in determining whether the concern is 

local or statewide. See 2 Eugene McQuillin, The Law of Municipal Corporations § 4.85, 

at 204-05 (3d ed. 1996) (proprietary/governmental test does not address whether matter is 

of state or local concern). Furthermore, that test was not used in Strode or other, more 

recent supreme court cases. See Jett v. City of Tucson, 180 Ariz. 115, 121, 882 P.2d 426, 

432 (1994); Flagstaff Vending Co. v. City of Flagstaff, 118 Ariz. 556, 559, 578 P.2d 985, 

988 (1978); Strode, 72 Ariz. at 362-69, 236 P.2d at 50-54. Accordingly, we need not 

apply this test.

¶13 In Strode, our supreme court did not apply any particular test but stated that 

it could “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.” 

72 Ariz. at 368, 236 P.2d at 54. The court went on to hold “that the method and manner 
8

of conducting [municipal] elections . . . [are] peculiarly the subject of local interest and 

[are] not . . . matter[s] of statewide concern.” Id. Strode, therefore, is the touchstone of 

our analysis. 

¶14 In determining whether a concern is statewide or local, this court does give 

some deference to a statement of legislative intent. City of Tucson, 191 Ariz. at 439, 957 

P.2d at 344. But “we must not merely rubber-stamp the legislature‟s decision.” Ariz. 

Ctr. for Law in the Pub. Int. v. Hassell, 172 Ariz. 356, 369, 837 P.2d 158, 171 (App. 

1991). The statement of intent reads:

Arizona courts have recognized that the Constitution 

of Arizona requires the legislature‟s involvement in issues 

relating to elections conducted by charter cities, including 

initiative and referendum elections, the method of elections 

other than by ballot, laws relating to primary elections, voter 

registration laws to prevent abuse and fraud and campaign 

finance laws. The legislature finds that the conduct of 

elections described in this section is a matter of statewide 

concern.

§ 9-821.01(A). But the particular areas of statewide interest identified in the statement do 

not specifically concern at-large, partisan municipal elections, which are the subject of 

the amendments to § 9-821.01. See § 9-821.01, as modified by 2009 Ariz. Sess. Laws, 

ch. 176, § 1. And the statement does not identify separately what statewide interest “the 

conduct of elections” in § 9-821.01 purportedly protects. Consequently, our deference in 

this regard is minimal.3 Cf. Wonders v. Pima County, 207 Ariz. 576, ¶ 9, 89 P.3d 810, 

 

3

See Hearing on S.B. 1123 Before the H. Comm. of the Whole No. 1, Part 2, 49th 

Leg., 1st Reg. Sess. (Ariz. June 29, 2009), http://azleg.granicus.com/MediaPlayer.php?

view_id=13&clip_id=5915, at 1:56 (statement of Rep. Antenori, one of the bill‟s 
9

813 (App. 2004) (state law can preempt city ordinance only when intent to preempt 

clearly stated).

¶15 The state argues, however, that § 9-821.01 seeks to protect statewide 

interests not described in the statute‟s statement of intent—preventing voter 

discrimination and promoting good governance, both of which it contends were raised in 

legislative debates. But neither of these issues was included specifically in the 

legislature‟s statement of intent. And “comments of individual legislators „are not 

necessarily determinative of legislative intent.‟” State v. Payne, 223 Ariz. 555, n.4, 225 

P.3d 1131, 1139 n.4 (App. 2009), quoting Stein v. Sonus USA, Inc., 214 Ariz. 200, ¶ 13, 

150 P.3d 773, 777 (App. 2007). Nevertheless, because we would have to determine 

whether a statute protects a statewide interest even in the absence of a statement of intent, 

see Strode, 72 Ariz. at 362-64, 236 P.2d at 49-51, we consider each issue in turn to 

determine whether any statewide interests exist that would remove these issues from the 

holding in Strode.

Nonpartisan Elections

¶16 Section 9-821.01(B) requires cities to hold nonpartisan elections. In 

Strode, our supreme court was considering whether a state law requiring disclosure of 

partisan affiliations in city council elections would supersede the charter of the City of 

Phoenix, which required nonpartisan city council elections. 72 Ariz. at 361-62, 236 P.2d 

 

sponsors, describing inclusion of finding of statewide interest as “standard boilerplate 

language that the Rules Attorney says that based on previous court cases he recommends 

that we place in the bill”). 
10

at 49-50. The court held “that the method and manner of conducting [municipal] 

elections . . . [are] peculiarly the subject of local interest and [are] not . . . matter[s] of 

statewide concern.” Id. at 368, 236 P.2d at 54. This case is in part the flip side of the 

Strode coin. And we are bound by the decisions of the Arizona Supreme Court. City of 

Phoenix v. Leroy’s Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958, 961 (App. 1993). 

We conclude, therefore, that the concern here is local and that Strode controls this issue. 

¶17 The state, relying in part on City of Tucson, argues that Strode does not 

control because there was an express legislative statement of intent in § 9-821.01 and 

because Strode does not prohibit all legislation affecting municipal elections. In City of 

Tucson, the state had identified a statewide interest in having all elections in the state 

conducted on four particular days, to increase voter turnout and lower expense. 191 Ariz. 

at 437, 957 P.2d at 342. The purpose of the legislation, which benefited the state, could 

not be accomplished unless municipalities complied. Id. at 439, 957 P.2d at 344. The 

nonpartisan requirement in § 9-821.01(B), on the other hand, is directed at municipalities 

and does not advance any identified statewide interest under Strode.

¶18 And the mere presence of a statement of legislative intent is not dispositive. 

See City of Tucson, 191 Ariz. at 439, 957 P.2d at 344 (noting statement of intent entitled 

to deference; then analyzing magnitude of statewide concern). Furthermore, although 

Strode does not categorically prohibit all legislation regarding local elections, its holding 

covered one of the precise issues raised here—partisan elections—and went on to state 
11

that the “method and manner of conducting [municipal] elections” is primarily an issue of 

local concern. See 72 Ariz. at 368, 236 P.2d at 54.

¶19 The state further contends it has an interest in the effective and efficient 

local governance that it claims nonpartisan elections promote. But, even if nonpartisan 

elections may have this effect, the relationship of voters to their municipality is purely a 

local matter.4 See id.; Mayor and Common Council of Prescott v. Randall, 67 Ariz. 369, 

371, 196 P.2d 477, 478 (1948) (charter city sovereign in municipal affairs); City of 

Tucson v. Walker, 60 Ariz. 232, 239, 135 P.2d 223, 226 (1943) (“„The purpose of the 

home rule charter provision of the Constitution was to render the cities adopting such 

charter provisions as nearly independent of state legislation as was possible.‟”), quoting 

Axberg v. City of Lincoln, 2 N.W.2d 613, 614-15 (Neb. 1942). And, based on the 

constitution, the charter is the “organic law” of the city. Ariz. Const. art. XIII, § 2. So 

even if the legislature determines generally that nonpartisan elections are a better form of 

municipal government, Tucson voters have the right to make their own choice in that 

regard. Consequently, this interest is not sufficient to remove this case from Strode‟s 

holding and reasoning. Therefore, the city‟s charter supersedes § 9-821.01(B), the 

provision requiring nonpartisan municipal elections. 

 

4

Furthermore, the legislative debates cited by the state do not demonstrate any 

genuine statewide interest but rather make clear that the legislators were interested solely 

in changing how Tucson‟s municipal elections would be conducted.
12

At-Large Elections

¶20 Citing article II, § 21 of the Arizona Constitution, the state asserts it has a 

constitutionally mandated interest in ensuring the integrity and fairness of the democratic 

process, which is not diminished depending on whether it involves municipal, as opposed 

to statewide, elections. See also Ariz. Const. art. VII, § 12. The state points out that atlarge voting systems have been associated with voting abuses in other jurisdictions, such 

as vote dilution and voter discrimination, and argues that “[p]rohibiting potentially 

discriminatory election practices in elections at all levels is a valid and statewide 

interest.” The state further urged at oral argument and also in its supplemental brief that 

at-large elections pose a statewide concern because a violation of the Voting Rights Act

(“VRA”) would preclude it from being able to take advantage of the “bailout” provision 

of 42 U.S.C. § 1973b. The asserted interest is that the city‟s at-large elections could be 

found to be in violation of the VRA, preventing the state from making use of the bailout 

provision. As we already have noted, even in a matter of declared local concern, such as 

municipal elections, if a statewide concern exists, a statute can supersede a city‟s charter. 

City of Tucson, 191 Ariz. at 438, 957 P.2d at 343. We must, therefore, determine 

whether the interests advanced by the state remove this issue from Strode‟s holding.

¶21 A “bailout” would mean that the state, a “covered jurisdiction,” no longer 

has to seek preclearance from the Department of Justice prior to implementing changes 

that could impact voting or voter registration. 42 U.S.C. §§ 1973b, 1973c. To invoke 

this provision, Arizona would be required to show that, for the last ten years, it had not, 
13

nor had any political subdivision within its territory, engaged in any discriminatory 

voting practice. § 1973b(a). The state would be required to show, inter alia, that it had 

“eliminated voting procedures and methods of election which inhibit or dilute equal 

access to the electoral process.” § 1973b(a)(1)(F). 

¶22 Section 9-821.01(C), however, is not a blanket prohibition on at-large 

elections, as the state asserts. It is, rather, a prohibition of the kind of at-large elections 

currently conducted by the city—ward-based primaries followed by at-large general 

elections for city council. See § 9-821.01(C). The state acknowledges that only Tucson 

used this system at the time the statute was amended. The record does not show whether 

any other cities currently conduct at-large elections. But nothing in the statute would 

prohibit the City of Tucson or any other city from implementing at-large elections. As a 

result, to the extent that a prohibition on at-large elections may enhance the state‟s 

chances of securing a bailout, § 9-821.01(C) does not mandate such a prohibition. 

Furthermore, the prohibition does not apply to counties. See id. Consequently, the 

measure the legislature enacted does not meaningfully support the state‟s purported 

interest under the VRA. 

¶23 The state asserts an interest in fair elections outside the VRA. Article II, 

§ 21 of the Arizona Constitution provides that “[a]ll elections shall be free and equal, and 

no power, civil or military, shall at any time interfere to prevent the free exercise of the 

right of suffrage.” And article VII, § 12 of the Arizona Constitution states that “[t]here 

shall be enacted registration and other laws to secure the purity of elections and guard 
14

against abuses of the elective franchise.” At-large elections do not always dilute votes 

and are not per se unconstitutional. See Thornburg v. Gingles, 478 U.S. 30, 48 (1986). 

They have, however, been found in some instances to have a discriminatory effect. See, 

e.g., United States v. Charleston County, 365 F.3d 341, 353 (4th Cir. 2004); United States 

v. Blaine County, 363 F.3d 897, 916 (9th Cir. 2004); Large v. Fremont County, 709 

F. Supp. 2d 1176, 1228, 1231 (D. Wyo. 2010); United States v. Vill. of Port Chester, 704 

F. Supp. 2d 411, 446 (S.D.N.Y. 2010). But no evidence of such discriminatory effects 

have been either alleged or shown in Arizona. Furthermore, because the legislature did 

not meaningfully limit at-large elections, the statute does not combat any potential 

discriminatory effect, nor does it, therefore, ensure that elections will be “free and equal,” 

Ariz. Const. art. II, § 21, protect the “purity of elections,” or “guard against abuses of the 

elective franchise,” Ariz. Const. art. VII, § 12. Consequently, this asserted state interest 

is not valid and does not support enforcement of this statute against the city. 

¶24 The only possible remaining state interest is in preventing the will of the 

citywide majority from overruling the will of the majority of the ward‟s electors. But the 

state has identified no interest in, or any benefit it receives by, preventing this situation 

from developing in its cities. And this interest again invades the area our supreme court 

has held to be one of solely local interest—the relationship between the charter city and 

its voters. See Strode, 72 Ariz. at 368, 236 P.2d at 54 (“We can conceive of no essentials 

more inherently of local interest or concern to the electors of a city than who shall be its 
15

governing officers and how they shall be selected.”).5 It is up to the supreme court to

redefine the limits of the legislative authority in this area, should it choose to do so. 

Consequently, in light of Strode, we hold that § 9-821.01(C) does not apply to the City of 

Tucson because the state‟s interests in requiring the city to hold ward-based general 

elections do not trump the city‟s charter providing otherwise.

The Dissent

¶25 Our dissenting colleague concludes that the invocation of the bailout 

provision of the VRA is a “legitimate” and “strong” state interest. Although we agree 

that the VRA could—not would, as our dissenting colleague suggests—provide a 

satisfactory state interest, in this case it does not. First, the bailout provision of the VRA 

was not mentioned in the legislative hearings, the statement of intent, the amendments 

themselves, the trial court, or the original briefs filed in this appeal. Rather, it was 

mentioned for the first time at oral argument. Consequently, we are not dealing with an 

expression of legislative intent but with an after-the-fact justification by skillful counsel. 

We owe no deference to this justification. Cf. Wonders v. Pima County, 207 Ariz. 576, 

¶ 9, 89 P.3d 810, 813 (App. 2004) (state law can preempt city ordinance only when 

legislative intent to preempt clearly stated); City of Tucson, 191 Ariz. at 439, 957 P.2d at 

 

5

In its final footnote, the dissent speculates that our supreme court, had it been 

deciding Strode after the passage of the VRA, would have used different language. The 

court did consider the issue of city elections after the passage of the VRA and, citing 

Strode with approval, reiterated its position that they are matters of local concern. See

Triano v. Massion, 109 Ariz. 506, 508, 513 P.2d 935, 937 (1973) (“Municipal elections 

are matters of local interest and not matters of statewide concern.”).
16

344 (in determining whether concern is statewide or local, court gives some deference to 

statement of legislative intent). 

¶26 Second, the legislative hearings make it clear that these amendments were 

an attack on the city‟s form of government rather than any attempt to protect the state‟s 

opportunity to bailout from the preclearance requirements of the VRA. And statements 

during the hearings make it clear that Tucson is the only city to employ this system and 

that the bill does not impact counties. Additionally, the record lacks any evidence that 

the state intends to request that it be relieved from preclearance in the near future,6any 

information on other impediments to the state seeking a bailout, or any other facts 

necessary for the legislature or this court to resolve whether a valid state interest exists. 

¶27 Third, and most importantly, the amendments prohibit at-large elections 

only when a city or town “provides for election of city or town council members by 

district.” As explained above, the statute does not restrict the entirely at-large elections 

that have been attacked as discriminatory by the Department of Justice. Therefore, the 

amendments fail to support the purported justification based on the VRA.

 

6

It is worth noting that, in support of the United States Attorney General, the state 

was a party to a recent amicus brief that emphasized the benefits of the Voting Rights 

Act‟s preclearance requirements and argued against any assertion that those requirements 

are onerous or burdensome. Brief for the States of N.C., Ariz., Cal., La., Miss. and N.Y. 

as Amici Curiae Supporting Appellee, Nw. Austin Mun. Util. Dist. No. One v. Holder, 

___ U.S. ___, 129 S. Ct. 2504 (2009) (No. 08-322), 2009 WL 815239. 
17

Conclusion

¶28 In light of the foregoing, we reverse the trial court‟s grant of summary 

judgment in favor of the state and remand the case for entry of summary judgment in 

favor of the city. 

/s/ Joseph W. Howard

JOSEPH W. HOWARD, Chief Judge 

CONCURRING:

/s/ J. William Brammer, Jr. 

J. WILLIAM BRAMMER, JR., Presiding Judge

E S P I N O S A, Judge, dissenting in part and concurring in part.

¶29 I respectfully disagree with my colleagues‟ narrow and, in my estimation, 

somewhat parochial view of what constitutes a legitimate statewide interest with regard 

to the integrity of Arizona‟s elections, as well as its conclusion that § 9-821.01(C) does 

not advance that interest and the requirements of the federal Voting Rights Act (VRA). 

Due to past voting inequities, Arizona is a “covered jurisdiction” under Section Five of 

the Act and is one of only nine states subjected to additional scrutiny by the United States 

Department of Justice (DOJ). See 28 C.F.R. pt. 51 app. Accordingly, as a covered 

jurisdiction, before any law, ordinance, or regulation affecting voting in any of its 

political subdivisions may be enacted or repealed, the state must either file a declaratory 

judgment action in United States District Court for the District of Columbia or submit a 
18

copy of the enactment to the United States Attorney General, along with explanations, 

statements, and information required and suggested by 28 C.F.R. § 51.27, and then wait 

for approval or denial. 42 U.S.C. § 1973c.

7

 As the majority acknowledges, in order to be 

exempted from this preclearance requirement under the so-called “bailout” provision of 

42 U.S.C. § 1973b, the state would be required to demonstrate that, for the last ten years, 

neither it nor any of its political subdivisions had engaged in any discriminatory voting 

practice, § 1973b(a), and that it had “eliminated voting procedures and methods of 

election which inhibit or dilute equal access to the electoral process,” § 1973b(a)(1)(F).

8

¶30 The majority does not truly dispute that satisfying the requirements of the 

VRA would constitute a valid state interest. And it acknowledges that at-large elections 

in other jurisdictions have been associated with voting abuses, including vote dilution and 

voter discrimination. My colleagues conclude, however, that our legislature‟s expression 

of the state‟s interest, § 9-821.01(C), does not “meaningfully support” the state‟s concern 

 

7

Sections 51.27 and 51.28, 28 C.F.R., identify eighteen items that must be 

submitted, including statements related to purposes and likely effects of proposed 

changes, and eight supplemental submissions that are “most likely to be needed with” 

complex proposals. The supplemental list includes, inter alia, demographic information, 

records of media coverage, and specific election returns.

8Contrary to the majority‟s assertion, the federal bailout provision was not merely 

an unheralded “after-the-fact justification by skillful counsel,” but instead was prompted 

by this court‟s preliminary draft decision, distributed to the parties in advance of oral 

argument, in which it was observed that only the city, not the state, would be subject to a 

federal action for a violation of voting rights perpetrated by the city. Moreover, although 

the state may not have used the word “bailout” in its answering brief, it clearly referred to 

the preclearance requirement of the Voting Rights Act (VRA) and Arizona‟s interest in 

complying with that law.
19

because it is not “a blanket prohibition on at-large elections,” but rather is tailored to only 

one type of at-large election. 

¶31 In my view, this reasoning disregards the preventative obligation imposed 

both by our state constitution and the VRA and thus misconstrues the state‟s interest here. 

As noted above, in order to be relieved of the federal preclearance requirements by way 

of the bailout provision, the state must demonstrate that neither it nor any political 

subdivision had engaged in any discriminatory voting practice and show it has 

“eliminated voting procedures and methods of election which inhibit or dilute equal 

access to the electoral process.” §§ 1973b(a), 1973b(a)(1)(F). Here, through 

§ 9-821.01(C), the legislature has responded to the only method of at-large voting in the 

record, which is the method employed in Tucson. In so doing, it has acted to preempt 

any finding that Tucson has engaged in any discriminatory voting practice through its atlarge voting system, a finding that would jeopardize the state‟s compliance with the Act 

and eligibility for relief from the preclearance requirements of § 1973c. See § 1973b(a). 

In addition, the legislature has acted to “eliminate[] voting procedures and methods of 

election which inhibit or dilute equal access to the electoral process,” consistent with

article VII, § 12 of the Arizona Constitution, which provides: “There shall be enacted 

registration and other laws to secure the purity of elections and guard against abuses of 

the elective franchise” (emphasis added), and the showing required under the bailout 

provision. § 1973b(a)(1)(F).
20

¶32 Although the legislature could have prohibited other hypothetical types of 

at-large voting in addition to addressing an actual situation, it was not required to take 

such steps under the mandates of the Act. See §§ 1973b(a), 1973b(a)(1)(F). Indeed, the 

scrutiny federal authorities have given various at-large voting schemes in other states was 

based on actual voting systems currently in place. See, e.g., Charleston County, 365 F.3d 

at 343 (federal suit brought against Charleston County‟s at-large elections of county 

council members; voting method alleged to have diluted minority voting strength); Blaine 

County, 363 F.3d at 900 (government alleged Blaine County‟s “at-large voting system for

electing members to the County Commission prevent[ed] American Indians from 

participating equally in the County‟s political process”); Vill. of Port Chester, 704 

F. Supp. 2d at 416 (federal suit alleged Village of Port Chester‟s at-large voting system 

for electing members of Port Chester Board of Trustees denied Hispanic population equal 

opportunity to participate in political process and elect representatives of their choice). 

¶33 Moreover, contrary to the majority‟s theory that the state cannot rely on an 

interest relating to the VRA because “the statute does not restrict the entirely at-large 

elections that have been attacked as discriminatory by the DOJ,” there is no meaningful 

way to distinguish the potential discriminatory effect arising from entirely at-large 

elections from the type of at-large elections taking place in Tucson because they both 

employ the same potentially discriminatory method. See Growe v. Emison, 507 U.S. 25, 

40 (1993) (“We have . . . stated on many occasions that . . . at-large plans . . . generally 

pose greater threats to minority-voter participation in the political process than do single-
21

member districts . . . .”). Significantly, voting systems similar to the one employed in 

Tucson have been the subject of VRA litigation. See, e.g., Badillo v. City of Stockton, 

956 F.2d 884, 886-87 (9th Cir. 1992) (city council voting system used single-district 

primary elections to advance two most successful candidates from each district to at-large 

general election where all city voters selected which of the two nominees from each 

district would serve on council; system “embod[ies] many of the classic devices for 

reducing a minority‟s ability to elect representatives”).

¶34 Nor is the legislature prevented from later addressing other types of at-large 

voting that may be implemented by Tucson or other cities. Thus, contrary to the 

majority‟s reasoning, that § 9-821.01(C) does not contain a “blanket prohibition” of atlarge elections does nothing to undermine the fact that the legislation has furthered the 

state‟s ability to guard against discriminatory election practices as well as comply with 

the Act and qualify for its bailout provision.9 Stated differently, under the majority‟s 

 

9As the majority decision recognizes, whether the legislature articulates a specific 

interest, or, as in this case, one that is sufficiently specific, is not dispositive of whether 

the legislation in fact furthers a valid state interest. See City of Tucson, 191 Ariz. at 439, 

957 P.2d at 344; cf. Lerma v. Keck, 186 Ariz. 228, 233, 921 P.2d 28, 33 (App. 1996) (in 

determining whether legislation advances legitimate interest for purposes of equal 

protection challenge, court may consider not only legislature‟s articulated purpose, but 

any hypothetical basis for enacting legislation). Furthermore, while the majority gleans 

from the legislative history a comment of one sponsor that appears to undermine the 

expressed purpose of the statute‟s declaration of intent, it ignores the statements of 

another, whose exhortations to legislative committees went to the heart of the issue here, 

specifically invoking the potential for voting abuses under at-large elections and the 

VRA. See Hearing on S.B. 1123 Before the H. Comm. on Judiciary, 49th Leg., 1st Reg. 

Sess. (Ariz. June 25, 2009), http://azleg.granicus.com/MediaPlayer.php?view_id=16&

clip_id=5817, at 2:28-2:30 (statement of Sen. Jonathan Paton, co-sponsor of S.B. 1123); 

Hearing on S.B. 1123 Before the S. Comm. on Judiciary, 49th Leg., 1st Reg. Sess. (Ariz. 
22

reasoning, the state cannot protect and further its own interest by addressing a specific 

potential harm of which it is aware unless, at the same time, it also addresses all types of 

other potential and theoretical types of harm as well.

¶35 Because I conclude § 9-821.01(C) furthers valid state interests, and because

the majority does not reach the issue of whether the state‟s compliance with the bailout 

provision is a legitimate statewide concern, I offer this additional discussion. 

¶36 As noted earlier, both the Arizona Constitution and federal law serve as 

incentives to our state legislature to prevent voting abuses. See Ariz. Const. art. VII, § 12

(“There shall be enacted registration and other laws to secure the purity of elections and 

guard against abuses of the elective franchise.”); 42 U.S.C. § 1973b (outlining bailout 

standards). Were the state able to meet the terms and added requirements of § 1973b it 

could seek a declaratory judgment exempting it from the burdens of the preclearance 

process required by § 1973c. See Nw. Austin Mun. Util. Dist. No. One, ___ U.S. at ___, 

129 S. Ct. at 2508 (observing preclearance and bailout requirements impose “rigorous 

conditions”).10 I see no reason why the state legislature, acting pursuant to its state 

 

June 8, 2009), http://azleg.granicus.com/MediaPlayer.php? view_id=16&clip_id=5557, at 

6-7 (same).

10The majority‟s discovery of an unrelated 2009 amicus brief in which the former 

Arizona Attorney General joined in describing the federal preclearance process as “not 

plac[ing] an onerous burden on states” in view of its “allowing our Nation to make 

substantial progress toward eliminating voting discrimination” in no way diminishes the 

validity of this compelling state interest. Brief for the States of N.C., Ariz., Cal., La., 

Miss. and N.Y. as Amici Curiae Supporting Appellee, Nw. Austin Mun. Util. Dist. No. 

One, ___ U.S. ___, 129 S. Ct. 2504 (No. 08-322), 2009 WL 815239, at *1. Moreover, 

whenever preclearance is required, there is potential for significant burden and delay.

For example, in 2002, Arizona submitted a proposed redistricting plan to the Department 
23

constitutional duty to protect elections, need wait for a challenge or pronouncement from 

the federal government that the at-large voting system as practiced in Tucson is 

discriminatory and constitutionally deficient before forbidding it. Indeed, in light of the 

purposes of, and consequences under, the VRA, see 42 U.S.C. §§ 1973, 1973a, restricting 

the state from enacting targeted legislation to prevent such a finding before it occurs 

seems counterproductive and at odds with the spirit of federal and state efforts to protect 

voting rights. Although the majority relies heavily on Strode, when there is a valid 

statewide concern, as I believe to be the case here, Strode mandates that the statute 

supersede the conflicting city charter.11 72 Ariz. at 363, 236 P.2d at 50; see also City of 

Tucson, 191 Ariz. at 438, 957 P.2d at 343. 

 

of Justice (DOJ) for preclearance, but a decision was delayed for months by the DOJ‟s 

request for additional information. See Navajo Nation v. Ariz. Indep. Redistricting 

Comm’n, 230 F. Supp. 2d 998, 1002-04 (D. Ariz. 2002). This meant that candidates, who 

faced imminent deadlines for collecting signatures, qualifying for public contributions, 

and filing petitions, did not know which district boundaries to use. Id. Affected parties 

and entities appealed to the state legislature for assistance, which responded by enacting 

an emergency measure addressing the situation. But this legislation also had to be 

submitted to the DOJ for preclearance, leading to litigation in federal court. Id. The DOJ 

ultimately denied the plan, and additional changes had to be adopted before it was finally 

approved. Id. at 1004. 

11Although my colleagues repeatedly rely on our supreme court‟s language in 

Strode that it could “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,” 72 Ariz. at 368, 236 P.2d at 54, this 1951 case was decided over ten years 

before the enactment of the VRA. Had this sweeping federal legislation, which made 

states accountable for the voting practices of their political subdivisions, been in effect at 

the time, it is possible, if not likely, the Strode court would have tempered some of its 

broad language. In any event, Strode supports the result reached by the trial court here in 

light of the legitimate state interest at stake. See id. at 363, 236 P.2d at 50. The 

majority‟s additional citation to Triano, decided after passage of the VRA, is inapposite. 
24

¶37 Because the at-large voting prohibition in § 9-821.01(C) was enacted 

pursuant to a strong statewide interest informed by federal law and state constitutional 

mandate, Tucson‟s city charter does not trump § 9-821.01(C). Accordingly, the trial

court did not err in so finding and I would affirm this portion of its order granting 

summary judgment.

/s/ Philip G. Espinosa 

PHILIP G. ESPINOSA, Judge

 

Triano dealt with candidates‟ residency requirements and did not implicate the state‟s 

compliance with federal law. 109 Ariz. at 508, 513 P.2d at 937.