Tucson has not filed a petition in court requesting a decision on whether Proposition 413 – a city council pay raise measure – is subject to a recount under new state election laws that narrowed the margin for repeating vote tabulations.
That’s despite the slim 289-vote margin showing the measure is passing in recount territory and a council motion on Nov. 21 that directed the city clerk and city attorney “to file a legal action requesting the court to order either that a recount be conducted based on the canvass of P413 or the recount provisions of AZ statute do not apply.”
The motion also called for the city to seek advice on the issue from Secretary of State Adrian Fontes and Arizona Attorney General Kris Mayes. Tucson City Attorney Mike Rankin sent a letter to Fontes on Nov. 24 but has yet to file anything in court.
Rankin told Arizona Luminaria in an email late Wednesday that the city is holding off on any court action until Mayes issues a legal opinion.
“We will wait to give the AZ Secretary of State and the AZ Attorney General a chance to weigh in. The SOS has now asked for an AG opinion. We will determine next steps after that,” he wrote.
In his letter to Fontes, Rankin said: “My hope is that you and the Attorney General will agree with my analysis. If so, an opinion would be helpful. But regardless of your position, I would like to discuss this matter with you, Attorney General Mayes and/or your designees so that I can determine the next steps, if any, that the City of Tucson should take relating to these matters. I certainly don’t want to move forward with a court filing until you have the opportunity to review this issue – especially since the Recount Statutes, if they apply, establish duties that fall to you as the Secretary of State to carry out.”
The attorney general’s response will set a 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,” Fontes wrote in a Nov. 27 letter to Mayes, provided to Arizona Luminaria.
The city ballot measure is being watched across the state amidst fiery election battles that have placed Arizona at the center of controversies over voting procedures and mounting false allegations of fraud since the 2020 presidential election.
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.”
The state’s new 0.5% trigger narrowed the margin for recounts and took effect following a 2022 Republican-sponsored law. Senate Bill 1008 was part of the GOP’s sweeping efforts to change state election laws after President Joe Biden defeated Donald Trump. Under Arizona’s previous law, Proposition 413 would not be in recount territory.
Fontes said that Tucson could not seek a legal opinion on a recount directly from the attorney general. Rather, the secretary of state’s office must make that request.
A spokesperson for the attorney general’s office told Arizona Luminaria in a Nov. 28 email that they received the secretary of state’s request for a legal opinion and are aiming for a quick response.
“I don’t have an exact timeline but we understand this involves an election — and we hope to complete it as soon as we can,” they said in the email.
The attorney general’s office declined to comment further amid the legal review on questions about the process for determining whether a recount is necessary
Council responds to backlash after city first nixed recount
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 the decision was determined after Tucson Attorney Mike Rankin reviewed the election results and the question of a recount.
However, not everyone agreed with Rankin’s stance. Michael Braun, executive director of the Arizona Legislative Council, which must review every law passed by the Legislature, said Proposition 413 would likely be subject to state recount laws. He 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 with Arizona Luminaria.
Arizona 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.
Following public backlash over his decision, Rankin reversed course at the Nov. 21 meeting to canvass the election results. Instead of advocating for no recount, he chose to recommend that the council ask state officials and courts for direction on whether the city has standing for a recount.
“That will give the Secretary of State, with the assistance of the Attorney General, an opportunity to weigh in on it,” he said at the meeting. “I would ask that as part of that authorization that you authorize me to file a legal action as appropriate and necessary to ask the court to confirm this position.”
Council members unanimously approved the motion with heavy support for seeking both the attorney general’s opinion and that of a court.
“I think again, going to the court and going, ‘Hey, do you need us to recount here because we’re happy to do it,’ is the best way to go,” council member Paul Cunningham said.
Other council members also were in favor of seeking a second opinion to instill confidence in voters that their locally elected officials are doing everything in their power to ensure a fair election.
“The court will either validate that opinion and say you don’t have standing to be here and send us home and happy with the raise and move on in life. Or the court will say the interpretation is too narrow and go do a recount in which case we’ll be happy to do a recount,” council member Steve Kozachik said at the meeting. “I think this is absolutely the right decision to let the court break the tie and we’ll live with the results of that.”
Mayor Regina Romero emphasized she had confidence in the election’s results but would support the council members’ vote.
Still, she feared that the election would be weaponized to question the election’s integrity.
“I am concerned that some will use this particular margin of win – the 289 votes – as something of an excuse to deny the election,” she said.
That trepidation is not baseless in a state still reeling from unfounded conspiracies about voting and election results and procedures.
“Either way, I want to make sure that our election system in Pima County has the full faith of the community, as well as mine and my colleagues on the council,” Romero said at the Nov. 21 meeting.
Arizona Luminaria asked all Tucson council members and Mayor Romero why a legal action has not been filed for a court’s opinion to address the recount question. Only council member Kozachik responded. Council member Nikki Lee forwarded Arizona Luminaria’s questions to Rankin.
Kozachik initially told Arizona Luminaria on Nov. 21 that he wanted the city attorney to petition for a recount and allow the court to decide the next steps. He stressed that he didn’t believe it would change the fate of Proposition 413, rather he wanted constituents to know their council members did everything they could to respect election law.
“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.
In an email to Arizona Luminaria Wednesday Kozachik said Tucson should, however, wait to seek the court’s opinion until after Mayes weighs in.
“We are asking the AG if we are required to do that. We can’t simply file in court if we have no standing. The AG will tell us if we do, or not,” Kozachik said.
After no pay raise since 1999, council set for hefty increase
Some of the strongest criticism of the city and support for a recount has come from Steve Christy, the only Republican on the Pima County Board of Supervisors. The board was also tasked with approving the canvass of the results because the Pima County Recorder’s Office managed the election, which included city and county-wide races and measures.
On Nov. 21, Christy said the council is “ignoring the rules” for Arizona elections.
“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.”
Christy first said he would vote no on the canvass, however, he conceded after clarification that legally a recount can only take place after the canvass is approved.
Proposition 413 would increase the mayor and city council members’ salaries, which haven’t been raised since 1999. It also would give Tucson’s mayor and council members higher salaries than their Phoenix counterparts.
Tucson council members, who currently make below minimum wage, would see their salaries match the pay for county supervisors, while the mayor’s salary would increase at 1.25 times that of what supervisors make, according to official ballot language.
That means the mayor’s annual salary would increase from $42,000 to $95,750. City council members’ pay would rise from $24,000 to $76,600.
Proposition 413 also would automatically adjust the mayor and city council members’ salaries to conform with any future changes to state-mandated salaries for county supervisors.
Under Arizona statutes, county supervisors are expected to see a raise in 2025 to $96,600. That would spur a further increase in the Tucson mayor’s salary to $120,750 and council members’ salaries to $96,600.
Credits
Editor: Dianna M. Náñez Copy Editor: Chelsea Curtis Visuals: Michael McKisson
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