Arizona’s secretary of state is asking the attorney general’s office for a legal opinion on whether Tucson’s Proposition 413 – a city council pay raise measure – needs a recount under a new law that narrowed the margin for repeating vote tabulations.
The attorney general’s response will set precedent for recount laws across the state involving local elections.
“Obtaining an opinion from your Office will provide important assurance to all localities in the State regarding how to proceed under similar circumstances,” Secretary of State Adrian Fontes wrote Monday in a letter to Attorney General Kris Mayes.
Proposition 413 is passing by only 289 votes out of 94,041 total, or about 0.3% of total votes cast — well within the state recount mandate for certain elections when the vote margin is less than or equal to one-half of one percent, or 0.5%, according to the official tally.
However, there is disagreement among local and state officials over whether Arizona’s recount laws apply to local ballot measures.
Tucson seeks a second opinion
Initially, Tucson issued a statement on Nov. 17 that no recount was necessary for Proposition 413 despite the measure entering mandatory recount margins. A city spokesperson told Arizona Luminaria that decision was determined after Tucson Attorney Mike Rankin reviewed the election results and the question of a recount.
As a public backlash mounted, the city reversed course. During a special meeting to canvass the election results, Rankin instead chose to recommend that the council ask Arizona’s attorney general and secretary of state for direction on whether a recount is needed for Proposition 413.
The council agreed with the new recommendation and also agreed to seek a court opinion on whether the local ballot measure is subject to a recount under state laws.
What Tucson City Council voted on
“Confirm and certify that the vote margin relating to Prop 413 is by the number established in the canvass, which is less than one-half of one percent of the number of votes cast for that measure; and direct and authorize the City Clerk and City Attorney to notify the Secretary of State and Arizona Attorney General of the P413 result and canvass; and to file a legal action requesting the court(s) to order EITHER that: (1) a recount be conducted based on the canvass of P413; or (2) the recount provisions of AZ statute do not apply.”
While the mayor and city council members said they had full confidence in the election results and agreed that a recount is unlikely to change the outcome of the election, they expressed concerns over voter confidence if they didn’t explore a recount. The local proposition has become controversial as Arizona elections have made national headlines amidst efforts to spread misinformation and lies over fraud in voting systems.
“We’re living in a time right now where elections all over the country are under a new level of scrutiny and I think that we should do everything in our power to assure that there’s no doubting the sanctity of the 413 results,” council member Steve Kozachik said at the meeting.
Fontes’ office said they have forwarded Rankin’s request for advice and issued the following statement in an email to Arizona Luminaria:
“We can confirm that the Secretary has received a request from the City of Tucson and their attorney requesting a review (of) the election recount provisions as outlined in accordance with the A.R.S. At this time because this is a legal matter and the request was for a legal opinion, the Secretary has decided to confer with the Arizona Attorney General, the Hon. Kris Mayes, for a formal legal interpretation of the A.R.S. discussed in this matter.”
The attorney general’s office told Arizona Luminaria Tuesday that they received Fontes’ request but declined to comment further while they review the issue.
Arizona’s new 0.5% recount trigger margin took effect following a 2022 Republican-sponsored bill, Senate Bill 1008, 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.
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.
Under the state’s 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.
Tucson city attorney and the state’s top legislative council disagree
In his original arguments, Rankin made the case that recount laws related to local elections only apply to candidates for races, not referred ballot measures. He added that provisions in state statutes relating to non-candidate measures, like Proposition 413, only apply to statewide general elections.
Michael Braun, executive director of the Arizona Legislative Council, which must review every law passed by the Legislature, disagreed with Tucson’s interpretation.
Braun told Arizona Luminaria on Nov. 20 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.
The legislative council is a nonpartisan state statutory committee. Its responsibilities include preparing all legislative bills, reviewing laws and performing legal research at the request of Arizona legislators.
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 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.
The elected officials have not seen a raise since 1999.
Under Arizona statutes, county supervisors are expected to see a raise in 2025 to $96,600. That would mean a further boost in the Tucson mayor’s salary to $120,750 and council members’ salaries to $96,600.
Arizona 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.
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