Arizona’s top Legislative Council official says that Tucson’s decision not to pursue a recount for Proposition 413 – despite the measure to increase city council pay passing by only 289 votes – clashes with new state automatic recount laws.
Tucson officials announced late Friday in a news release that the measure “was approved by the voters and the result does not require a recount” because the state law does not apply to “a local referred ballot measure that was called as a special election and administered as a special election.”
However, Michael Braun, executive director for the Arizona Legislative Council, which must review every law passed by the Legislature, said that Article 12 – the part of the state law outlining recounts – does pertain to local ballot measures. Evaluating state election statutes as a whole is vital to understanding why, he said.
“To me, when you put it all together, Article 12 does have applicability to recounts for city ballot measures,” Braun said in an interview Monday with Arizona Luminaria.
The city also made the case in its news release that recount laws related to local elections only apply to candidates for races, not referred ballot measures. And provisions in state statutes relating to non-candidate measures, like Proposition 413, only apply to statewide general elections.
The decision not to pursue a recount came after Tucson City Attorney Mike Rankin reviewed the election results and the question of a recount, city spokesperson Andy Squire told Arizona Luminaria in an email Monday.
A city ballot measure like Proposition 413 isn’t excluded in the subsection of the law that lists elections exempt from an automatic recount such as school district governing boards. Braun also asserts that special elections and special measures do not fall under the exempt category.
The legislative council is a nonpartisan statutory committee and its responsibilities include preparing all legislative bills, reviewing laws and performing legal research at the request of Arizona legislators.
Proposition 413 would more than triple the annual salary for city council members and more than double the mayor’s salary – increasing the elected Tucson officials’ pay from below minimum wage to far beyond what their Phoenix counterparts currently earn.
Unofficial results show Proposition 413 passing by only 289 votes out of 94,041 total, or about 0.3%, of total votes cast, which falls well within the state mandate for a recount for certain elections when the vote margin is less than or equal to one-half of one percent, or 0.5%. Data from the Pima County Elections Department shows 47,165 voters in favor of the proposition and 46,876 in opposition, leaving the trigger margin for a recount at 470 votes.
An Arizona bill signed in May of 2022 lowered the threshold for automatically triggering recounts. If that law had not been changed, Proposition 413 would not be close enough to fall into recount territory. Historically, recounts rarely change election results.
Arizona law requires city or town councils to certify that a recount is necessary, filing with a superior court judge in the county where the election canvass, or official tally, was conducted. The judge must then “enter an order requiring a recount of the votes cast for such office, measure or proposal.”
Backlash
The Pima County Board of Supervisors voted 4-1 on Tuesday to approve the canvass of the election results, but not without pushback. Supervisor Steve Christy, the only Republican on the board, was indignant that the city has announced it would not hold an automatic recount of Proposition 413.
Christy said at Tuesday’s meeting that the council is “ignoring the rules.”
“The pay raise is just huge, it’s hypocritical,” he said. “So many people are asking them to run a recount. This is a bad day for transparency.”
He lashed out at Tucson Mayor Regina Romero and council members, saying their actions would stain their legacy as elected leaders.
“Mayor and council should be ashamed of themselves. It seems to me they would want to make every effort to assure the tabulation is accurate and has the confidence of the community that it was done accurately,” he said. “This is going to leave a large dark cloud over the mayor and council and the community. This whole process is wrong.”
Supervisor Rex Scott said the recount is outside the county board of supervisor’s purview and only one member of the city council has advocated for the recount.
“I don’t see how it factors into our duty,” Scott said.
Christy initially said he would vote no, however, he conceded after clarification that legally a recount can only take place after the canvass is approved.
Longtime Supervisor Sharon Bronson, who recently announced she was stepping down this month after serving since 1996, was the only official to vote no on the canvass. She did not explain why.
Tucson council member Steve Kozachik told Arizona Luminaria on Tuesday that he wants the city attorney to petition for a recount. He stressed that he doesn’t believe a recount will change the fate of Proposition 413, rather he wants constituents to know their council members did everything they could to respect election law.
He wants the court to decide whether their petition to conduct the recount is valid.
“In an environment like this where we have so many people doubting the sanctity of elections I think we ought to do everything we can to make sure that sanctity is respected and let the court break the tie,” he said.
Kozachik said that he spoke to Rankin, Tucson’s city attorney, about his stance and plans on voicing his opinion during Tuesday’s council meeting.
The city council will hold a meeting remotely at 4 p.m. on Nov. 21 to canvass the returns and declare the results of the election. Members of the public can tune in to watch via a livestream of the meeting.
City and state may disagree on recount
Braun, the Arizona Legislative Council executive director, disagrees with the city’s stance. He said there are numerous references in the laws to referred ballot measures related to local elections.
“The recount provisions would apply to a city or town ballot measure because Article 12 recounts in various spots that ballot measures are contemplated (in the context of local elections),” Braun said.
However, Braun said he does not know to what extent Tucson’s charter would affect the city’s implementation of state recount laws.
State law
A.R.S. 16-661. Automatic recount; requirements
A. A recount of the vote is required when the canvass of returns in a primary or general election shows that the margin between the two candidates receiving the greatest number of votes for a particular office, or between the number of votes cast for and against initiated or referred measures or proposals to amend the Constitution of Arizona, is less than or equal to one-half of one percent of the number of votes cast for both such candidates or on such measures or proposals.
B. Subsection A of this section does not apply to elections for precinct committeemen, school district governing boards, community college district governing boards, fire district boards or fire district chiefs or secretary-treasurers or boards of other special districts.
Arizona recount laws are mandated under Title 16, “elections and electors,” and contained within Article 12 of Chapter 4. Braun explained that Chapter 4, labeled “Conduct of elections,” includes general provisions that extend recount requirements to local ballot measures.
“It’s an all encompassing recount chapter,” Braun said, explaining that it’s important to take into account the context of the law when interpreting its meaning and application.
Arizona Luminaria asked the Tucson Office of the City Manager if they are concerned about possible litigation tied to the decision not to file for a recount of Proposition 413.
“Mr. Rankin is always considerate of the possibility of litigation,” said Squire in an email.
The city contracted Pima County to conduct the election, which included council and mayoral races, as well as Proposition 413. Pima County Elections Director Constance Hargrove broke down certain steps in the process for recounts.
Before ordering a recount, the county board of supervisors must canvass election results on Nov. 21, after which Tucson could file a lawsuit in the Pima County Superior Court requesting a recount of the votes, Hargrove told Arizona Luminaria in an email on Nov. 15. Squire told Arizona Luminaria on Nov. 20 that the city of Tucson also must canvass the election results because they are a charter city.
Tucson mayor, council on track for two pay raises
Proposition 413 would increase the mayor and city council member’s salaries, which haven’t been raised since 1999, to be tied to those of the Pima County Board of Supervisors.
It also would give Tucson’s mayor and council members a higher salary than Phoenix officials. The Phoenix mayor makes a salary of $88,000 per year and council members take in $61,600 per year, according to Dan Wilson, the city’s communications director.
Proposition 413 would raise the mayor’s annual salary from $42,000 to $95,750, setting the increase at 1.25 times what officials serving on the Pima County Board of Supervisors earn as mandated by state law. City council members would see an increase from $24,000 to $76,600.
The measure also would automatically adjust the mayor and city council members’ salaries to conform with any future changes to state-mandated salaries for county supervisors. Tucson council members’ salaries would match the salaries for supervisors, while the mayor’s salary would increase at 1.25 times the adjusted rate, according to official ballot language.
Under Arizona statutes, county supervisors are expected to see a raise in 2025 to $96,600. That would mean a further increase in the Tucson mayor’s salary to $120,750 and council members’ salaries to $96,600.
Arizona’s new recount trigger margin
Arizona’s 0.5% recount trigger margin took effect following a 2022 Republican-sponsored bill that was part of the GOP’s efforts to change state election laws after President Joe Biden defeated Donald Trump amid unfounded calls of fraud.
Last year, the new law triggered recounts in three statewide elections.
The recount did not change the outcome of any of the races. Democrat Kris Mayes was elected as Arizona attorney general, Republican Tom Horne was elected state superintendent of public instruction, and Republican Liz Harris won a seat to represent state House District 13. Harris, a known election-denier, has since been expelled for ethics violations resulting from inviting a member of the public to speak before lawmakers and spread conspiracy theories.
Arizona is among a dozen states that follow a similar 0.5% trigger for a recount, however, several states have qualifiers that limit recounts for certain elections, according to the National Conference of State Legislatures. Connecticut, for example, requires a recount for general elections when the margin of victory is less than 0.5% of the total votes cast but not more than 2,000 votes, or fewer than 20 votes. A recount is also automatic in the event of a tied vote.
Before Senate Bill 1008 passed, the previous state law required a recount when the vote difference was less than or equal to the lesser of the following: Either 0.1% of the total votes cast or a margin threshold number set depending on the location and size of the election. For local elections, the margin threshold was 10 votes; 50 votes for a legislative race; 200 for a statewide race when the total number of votes cast is more than 25,000; 50 for statewide races when the total number of votes cast is 25,000 or less; and 200 in the case of an initiated or referred measure or proposal to amend the constitution.
Those margin threshold numbers were often the lesser number and limited recounts. The new law eliminated those set numbers.
Under the previous law, the 0.1% difference to trigger a recount of Proposition 413 would have been 94 votes, however, the 10-vote margin threshold would have been the lesser number. That means Proposition 413 would have fallen outside of recount territory, given that it is passing by 289 votes.
Michelle Ugenti-Rita, a former Republican state senator, introduced the recount measure. She told Votebeat Arizona in 2022 that the intent of the bill is to inspire voter confidence.
“When races are razor tight, we make sure they were counted accurately,” Ugenti-Rita said.
Critics of the bill argued that the measure places an additional administrative burden – which would delay results – and financial hardship on state and local governments that must pay for recounts. The County Supervisors Association of Arizona and the Arizona Association of Counties lobbied against the bill prior to its passing and becoming law.
Deb Otis, a senior research analyst for FairVote, told Votebeat that the 0.1% margin was enough to ensure a fair count in a close race.
“It’s already capturing all of the races in which a recount could be consequential,” she told the publication.
The last recount for a Tucson city election was for the Ward 6 race in 1997, City Clerk Suzanne Mesich told Arizona Luminaria. The reason was because of disputes about hanging chads — the term for when a paper ballot is not completely punched through — which later became a subject of intense national dispute during the 2000 Presidential Election.
The last recount for a Pima County proposition was in 2010, said Hargrove, Pima County’s elections director.
The Tucson City Clerk did not respond to Arizona Luminaria’s request for an estimate of election and potential recount costs. Hargrove also said she did not have an estimate for how much a recount would cost taxpayers.
Reporter John Washington contributed to this article
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