City of Tucson v. State

SUPREME COURT OF ARIZONA
En Banc

CITY OF TUCSON, a municipal ) Arizona Supreme Court
corporation, ) No. CV-11-0150-PR
)
Plaintiff/Appellant, ) Court of Appeals
) Division Two
v. ) No. 2 CA-CV 10-0083
)
STATE OF ARIZONA, ) Pima County
) Superior Court
Defendant/Appellee, ) No. C20097207
)
and )
)
SOUTHERN ARIZONA LEADERSHIP ) O P I N I O N
COUNCIL and SENATOR JONATHAN )
PATON, )
)
Defendant-Intervenors/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Michael Owen Miller, Judge

REVERSED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
226 Ariz. 474, 250 P.3d 251 (App. 2011)

VACATED
________________________________________________________________

THOMAS C. HORNE, ARIZONA ATTORNEY GENERAL Phoenix
By James E. Barton II
David R. Cole, Solicitor General
Attorneys for State of Arizona

MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By Dennis P. McLaughlin, Principal Assistant
City Attorney
Attorneys for City of Tucson
LEWIS AND ROCA LLP Tucson
By John Hinderaker
Jeffrey L. Sklar
S.L. Schorr
Kimberly A. Demarchi Phoenix
Attorneys for Southern Arizona Leadership Council and
Jonathan Paton

BERKE LAW FIRM, PLLC Phoenix
By Ellen M. Van Riper
Attorney for Amicus Curiae League of Arizona Cities and Towns
________________________________________________________________

B A L E S, Justice

¶1 Since statehood, Arizona’s Constitution has included a

“home rule” provision authorizing eligible cities to adopt

charters. Ariz. Const. art. 13, § 2. A charter city has the

power to frame its own organic law, including the power to

determine “who shall be its governing officers and how they

shall be selected.” Strode v. Sullivan, 72 Ariz. 360, 368, 236

P.2d 48, 54 (1951). Based on these principles, we hold that

A.R.S. § 9-821.01, as amended in 2009, does not displace the

method that voters of the City of Tucson chose under its 1929

charter for electing council members.

I.

¶2 Tucson city council members are nominated in ward-

based primary elections but elected in at-large (city-wide)

general elections. These elections are partisan: the primary

selects nominees for particular political parties and the

general election ballot identifies candidates by party

2
affiliation. Tucson has used this system since adopting its

current city charter in 1929.

¶3 In 2009, the Arizona Legislature amended A.R.S. § 9-

821.01 to provide that cities and towns “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.” Id. § 9-821.01(B); 2009 Ariz. Sess. Laws, ch. 176,

§ 1 (1st Reg. Sess.). The same amendment added § 9-821.01(C),

stating:

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.

As amended, § 9-821.01 thus bars a city from electing its city

council in partisan elections or in ward-based primaries

combined with at-large general elections.

¶4 The City of Tucson filed this case against the State,

claiming that the amendments to § 9-821.01 do not apply to it as

a charter city. The Southern Arizona Leadership Council and

former Senator Jonathan Paton (collectively “SALC”) intervened

as defendants. On cross-motions for summary judgment, the

superior court entered judgment for the State.

3
¶5 A divided court of appeals reversed, ruling that

A.R.S. § 9-821.01 conflicts with the Tucson Charter and that the

city’s method of selecting its council members is a purely local

issue that cannot be preempted by state law. City of Tucson v.

State, 226 Ariz. 474, 476-80 ¶¶ 7-24, 250 P.3d 251, 253-57 (App.

2011). The dissenting judge concluded that the legislature can

displace Tucson’s use of a ward-based primary combined with an

at-large general election. Id. at 481-84 ¶¶ 29-37, 250 P.3d at

258-61 (Espinosa, J., dissenting in part and concurring in

part).

¶6 We granted review because this case involves legal

issues of statewide importance. The Court has jurisdiction

under Article 6, Section 5(3) of the Arizona Constitution and

A.R.S. § 12-120.24 (2009).

II.

A.

¶7 Nineteenth century case law and legal commentary

generally viewed cities and towns as entirely subordinate to and

dependent on the state’s legislature for any governmental

authority. See, e.g., Lynn A. Baker & Daniel B. Rodriguez,

Constitutional Home Rule and Judicial Scrutiny, 86 Den. U. L.

Rev. 1337, 1340 (2009) (noting “near consensus view” that

“municipalities had only those powers delegated to them by state

legislatures”); David J. Barron, Reclaiming Home Rule, 116 Harv.
4
L. Rev. 2255, 2277-88 (2003) (describing nineteenth century

views of local government and rise of home rule movement).

¶8 The framers of Arizona’s Constitution, however,

rejected that view, valuing local autonomy. See Toni McClory,

Understanding Arizona’s Constitution 178 (2d ed. 2010).

Accordingly, Arizona’s Constitution bars the state legislature

from enacting “local or special laws” with respect to

“[i]ncorporation of cities, towns, or villages, or amending

their charters,” Ariz. Const. art. 4, pt. 2, § 19(17), and

requires “the legislature, by general laws, [to] provide for the

incorporation and organization of cities and towns and for the

classification of such cities and towns in proportion to

population.” Id. art. 13, § 1.

¶9 More importantly, our Constitution also permits any

city of more than 3500 people to “frame a charter for its own

government consistent with, and subject to, the Constitution and

the laws of the state.” Id. art. 13, § 2. “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.” City of

Tucson v. Walker, 60 Ariz. 232, 239, 135 P.2d 223, 226 (1943)

(quoting Axberg v. City of Lincoln, 2 N.W.2d 613, 614–15 (Neb.

1942)).

5
¶10 Upon approval by the city’s voters and the governor,

the “charter shall become the organic law of such city and

supersede any charter then existing (and all amendments

thereto), and all ordinances inconsistent with said new

charter.” Ariz. Const. art. 13, § 2. Thus, under Arizona’s

Constitution, eligible cities may adopt a charter – effectively,

a local constitution – for their own government without action

by the state legislature. “[A] home rule city deriving its

powers from the Constitution is independent of the state

Legislature as to all subjects of strictly local municipal

concern.” City of Tucson v. Tucson Sunshine Climate Club, 64

Ariz. 1, 8-9, 164 P.2d 598, 602 (1945); see Buntman v. City of

Phoenix, 32 Ariz. 18, 25-27, 255 P. 490, 492-93 (1927) (holding

that city charter provided legislative authorization for

municipal operation of railway under Ariz. Const. art. 2, § 34);

The Records of the Arizona Constitutional Convention of 1910 515

(John S. Goff ed., 1991) [hereinafter Records] (statement of

sponsoring delegate noting that charter provision relieved

cities of need “to go to the legislature for a charter”); John

D. Leshy, The Arizona State Constitution 265-66 (1993).

¶11 There are nineteen “charter cities” in Arizona,

ranging from Yuma in the southwest to Holbrook in the northeast,

and including the former territorial capital Prescott,

Flagstaff, the border cities Nogales and Douglas, and several
6
cities in the greater Phoenix metropolitan area.1 Each city has

a distinctive charter establishing the structure of its

government and identifying its various city officials and their

manner of selection. See Arizona League of Cities and Towns,

Charter Government Provisions in Arizona Cities 12-15 (2005)

[hereinafter Charter Government] (tables comparing cities in

governmental structure). In contrast, some seventy-one non-

charter municipalities are governed by general statutes

concerning local government. McClory, supra ¶ 8, at 178; see

Jan Brewer, The Arizona Blue Book 160-70 (2007-08 ed.) (listing

incorporated Arizona cities and towns in 2007).

B.

¶12 Arizona charter cities differ significantly in how

they elect their city councils. Before statehood, cities

generally selected council members – then referred to as

aldermen - by wards, that is, each was elected from a particular

district within the city. See 1901 Territorial Code § 625

(providing for election of two aldermen from each ward). But

the Progressive reform movement that influenced the framing of

Arizona’s Constitution, see, e.g., McClory, supra ¶ 8, at 25-26,

1
The charter cities are Avondale, Bisbee, Casa Grande,
Chandler, Douglas, Flagstaff, Glendale, Goodyear, Holbrook, Mesa,
Nogales, Peoria, Phoenix, Prescott, Scottsdale, Tempe, Tucson,
Winslow, and Yuma. McClory, supra ¶ 8, at 178 & n.31.

7
also affected municipal government. Groups such as the National

Municipal League (now the National Civic League) advocated for

the election of city councils in at-large, nonpartisan

elections, contending that ward-based election systems resulted

in city governments susceptible to control by “political

bosses,” corruption, and parochial neighborhood interests. See

id. at 179-80; H. George Frederickson, Curtis Wood, & Brett

Logan, How American City Governments Have Changed: The Evolution

of the Model City Charter, 90 Nat’l Civic Rev. 3 (2001).

¶13 Many of Arizona’s charter cities adopted at-large

elections for their city councils, and twelve currently use this

method. Charter Government at 12-15. Over time, however, there

has been renewed support for district-based council elections.

Proponents contend that at-large elections may be used to deny

representation to particular groups, such as concentrated

populations of minority or low-income residents, or may result

in the neglect of neighborhood interests.

¶14 Some cities that had adopted at-large elections later

reinstituted district-based elections. Phoenix, for example,

adopted at-large elections in 1948 as part of a “good

government” reform effort. See Carl Abbott, The New Urban

America 142 (1981). In 1982, Phoenix voters amended its charter

to restore district-based council elections after a grassroots

campaign argued this change would increase minority and
8
neighborhood representation. McClory, supra ¶8, at 181; see

also Carl Abbott, The Metropolitan Frontier 104-07 (1993)

(describing adoption of district-based council elections in

various western cities, including Phoenix). Six of Arizona’s

charter cities now elect their city councils on a district or

ward basis. Charter Provisions at 11.2

¶15 Arizona’s Constitution and statutes regarding

municipalities do not express a preference between at-large or

district-based council elections. See generally A.R.S. §§ 9-

232.04, 9-273 (allowing non-charter cities and towns to choose

between at-large and district-based council elections). This

flexibility recognizes that each form of election has possible

advantages and disadvantages; for example, although at-large

members are responsible to electors in the entire city, this may

diminish attention to the interests of particular neighborhoods

or groups; district-based elections, in contrast, assure

representation from different geographic areas but may elevate

particular interests over citywide ones.

2
Nationally, more than 64 percent of municipalities use at-
large council elections in some way, while about 14 percent use
district-based elections and 21 percent use a combined system.
See National League of Cities, Cities 101: Municipal Elections
(2010), available at www.nlc.org/build-skills-
networks/resources/cities-101/municipal-elections.

9
¶16 Tucson is unique among Arizona’s charter cities in its

method for selecting council members. Adopted in 1929, the

Tucson charter provides:

Beginning in the year 1930, and continuing thereafter,
the mayor shall be nominated from and elected by the
voters of the city at large, and the councilmen shall be
nominated each from, and by the respective voters of, the
ward in which he resides, and shall be elected by the
voters of the city at large.
Tucson City Charter Chapter XVI, § 9. The primary and general

elections for council members are partisan. Tucson thus uses a

hybrid election system: Council members are nominated by ward,

so that the council includes members from different geographic

regions of the city, see id. § 5, but they are elected by all

the city’s voters in the general election.

¶17 In November 1991, Tucson voters rejected a proposal to

replace at-large general elections with district-based

elections. Two years later, they rejected a proposal to change

from partisan to non-partisan elections.

C.

¶18 More than sixty years ago, this Court considered a

charter city’s authority to structure its own government in

Strode, which involved the non-partisan election system that

Phoenix adopted in 1912. See Phoenix City Charter Chapter XII

(1912). State statutes then generally entitled political

parties to be represented on ballots for state, county, and city

10
offices. Strode at 361-62, 236 P.2d at 49-50. The Court,

however, held 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.” Id. at 363, 236 P.2d at 50 (quoting Phoenix City

Charter Chapter XII, sec. 9).

¶19 Strode recognized that Article 13, Section 2 requires

city charters to be “consistent with, and subject to, the

Constitution and the laws of the state.” This provision, the

Court held, does not subject charter cities to the legislature’s

plenary power. 72 Ariz. at 365, 236 P.2d at 51. Instead, the

phrase “laws of the state” refers to laws addressing matters of

“statewide interest” rather than “local concern.” Id. (citing

City of Wewoka v. Rodman, 46 P.2d 334, 335 (Okla. 1935)).

Reviewing prior decisions, the Court in Strode explained:

[T]his court has uniformly held that a city charter,
when regularly adopted and approved, becomes the
organic law of the city and the provisions of the
charter supersede all laws of the state in conflict
with such charter provisions insofar as such laws
relate to purely municipal affairs.

Id. at 365, 236 P.2d at 51; see also City of Tucson v. Walker,

60 Ariz. at 239, 135 P.2d at 226 (observing that “where the

legislative act deals with a strictly local municipal concern,

it can have no application to a city which has adopted a home

rule charter”) (quoting Axberg, 2 N.W.2d at 615.).

11
¶20 Consistent with earlier decisions, the Court in Strode

applied a formalistic analysis: whether general state laws

displace charter provisions depends on whether the subject

matter is characterized as of statewide or purely local

interest. 72 Ariz. at 365, 236 P.2d at 51. This approach can

be problematic in application. See Note, Conflicts between

State Statutes and Municipal Ordinances, 72 Harv. L. Rev. 737,

740-43 (1959) (discussing challenges courts have faced in

identifying “exclusively local” matters subject to municipal

home rule). The concepts of “local” versus “statewide” interest

do not have self-evident definitions. Many municipal issues

will be of both local and state concern, and distinguishing

between matters that are properly subject to local versus state

control often involves case-specific line drawing. Strode

recognized as much, noting that “[s]ome difference of opinion is

evidenced in the reported cases as to what activities of a

charter city are of local interest or concern and therefore free

from legislative interference.” 72 Ariz. at 366, 236 P.2d at

52; cf. Baker & Rodriguez, supra ¶ 7, at 1344 (observing that

the task of discerning what is or is not a local affair is

“necessarily ad hoc”).

¶21 But whatever the general difficulties in identifying

matters of local concern, Strode is absolutely clear that

12
charter city governments enjoy autonomy with respect to

structuring their own governments.

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.

72 Ariz. at 368, 236 P.2d at 54 (emphasis added).

¶22 Underscoring this point, the Court said: “We therefore

specifically hold that the method and manner of conducting

elections in the city of Phoenix is peculiarly the subject of

local interest and is not a matter of statewide concern.” Id.

Accordingly, the state statutes providing for partisan ballots

did not displace the Phoenix charter provisions for non-partisan

elections.

¶23 This Court subsequently relied on Strode in a case

involving Tucson city elections. In Triano v. Massion, a

prospective candidate argued that the one-year residency

requirement in Tucson’s charter conflicted with a state statute

merely requiring candidates to reside in the district they

proposed to represent. 109 Ariz. 506, 513 P.2d 935 (1973).

Upholding Tucson’s residency requirement, the Court confirmed

that “[m]unicipal elections are matters of local interest and
13
not matters of statewide concern.” Id. at 508, 513 P.2d at 937

(citing Strode, 72 Ariz. 360, 236 P.2d 48).

III.

¶24 With this background, we consider whether A.R.S. § 9-

821.01 displaces the method that Tucson has used under its 1929

charter to elect its city council.

A.

¶25 SALC and the State first argue that the prohibition on

partisan elections in § 9-821(B) should apply to Tucson because

its charter does not require partisan council elections but

instead incorporates the state’s general laws.

¶26 Tucson’s charter does incorporate certain state

election laws. With respect to primary elections, the charter

provides:

The provisions of the general laws of the State of
Arizona relating to and governing primary elections
and the 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.
Tucson City Charter Chapter XVI, § 2. The Tucson charter also

states that “[t]he provisions of the general laws of the State

of Arizona, governing the elections of state and county

14
officers, not inconsistent with the provisions of this Charter,

shall govern the said elections . . . .” Id. § 7.

¶27 The charter provisions, however, do not incorporate §

9-821.01(B). This statute is not part of Title 16’s provisions

“relating to and governing primary elections and the nomination

of elective officers.” Id. § 2. Nor is it among the state’s

general laws governing the elections of state and county

officers. Instead, the charter’s reference to the state’s

general laws regarding “primary elections and the nomination of

elective officers” is more reasonably interpreted as

contemplating partisan elections. See A.R.S. § 16-311(A)

(providing for partisan nominations in a “primary election”);

id. § 16-311(B) (providing selection process for “nonpartisan

elections”).

¶28 Tucson has conducted partisan elections for its city

council for over eighty years. Tucson’s charter at the least

permits partisan elections, and thus conflicts with § 9-

821.01(B), which forbids them.

¶29 Moreover, § 9-821.01(C), as SALC and the State

acknowledge, plainly conflicts with Tucson’s charter in another

respect. The statute bars a city that uses a ward-based primary

for council members from using an at-large general election.

Id. Tucson’s charter states that “councilmen shall be nominated

each from, and by the respective voters of, the ward in which he
15
resides, and shall be elected by the voters of the city at

large.” Tucson City Charter Chapter XVI, § 9.

B.

¶30 Under Strode, Tucson’s manner of electing its city

council members supersedes the conflicting provisions of A.R.S.

§ 9-821.01(B) and (C). The Court held in Strode that the City

of Phoenix could select its council in nonpartisan elections.

If the local autonomy granted by Article 13, Section 2 allows a

city to opt not to use partisan elections, the converse must

also be true: a city may choose to use partisan elections.

¶31 Strode’s rationale also extends to Tucson’s decision

to use ward-based primaries and at-large general council

elections. In characterizing the method of electing city

officers as a “purely municipal concern,” Strode noted that the

framers of our Constitution allowed charter cities to structure

their own governments. 72 Ariz. at 368, 236 P.2d at 54. The

Court 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.” Id. If

the “home rule” provisions of Article 13, Section 2 are to have

effect, they must at the least afford charter cities autonomy in

choosing how to elect their governing officers.

¶32 We therefore must consider whether there is reason to

reconsider or qualify Strode’s holding that “the method and
16
manner of conducting elections” for a charter city “is

peculiarly the subject of local interest and is not a matter of

statewide concern.” Id. at 368, 236 P.2d at 54.

¶33 The State argues that we should defer to the

legislature’s finding in A.R.S. § 9-821.01(A) that “the conduct

of elections described in this section is a matter of statewide

concern.” The statute also declares:

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.

Id. The State notes that no similar findings were present in

Strode.

¶34 For several reasons, § 9-821.01(A) does not cause us

to reassess Strode. Although we respect findings by the

legislature, whether state law prevails over conflicting charter

provisions under Article 13, Section 2 is a question of

constitutional interpretation. See City of Tucson v. Walker, 60

Ariz. at 238-39, 135 P.2d at 226-27; cf. Forty-Seventh

Legislature of State v. Napolitano, 213 Ariz. 482, 485 ¶ 8, 143

P.3d 1023, 1026 (2006) (noting that courts are ultimately

responsible for interpreting the constitution). The issue is

not whether the legislature acted constitutionally in enacting

§ 9-821.01(A)-(C); we presume that it did and assume, without
17
deciding, that the statute applies to non-charter cities. We

must instead determine whether, notwithstanding this statute,

the constitution affords charter cities autonomy in structuring

the elections of their governing councils.

¶35 We do not question that some aspects of the conduct of

local elections may be of statewide concern. See, e.g., City of

Tucson v. State, 191 Ariz. 436, 439, 957 P.2d 341, 344 (App.

1997) (finding statewide interest in specifying uniform dates

for municipal elections). But election dates, other

administrative aspects of elections, and the various examples

listed in § 9-821.01(A) all involve matters qualitatively

different from determining how a city will constitute its

governing council.

¶36 The State also contends that 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.

Since the 1975 amendments to the VRA, Arizona has been a

“covered jurisdiction”: the state and its political subdivisions

must seek federal approval (preclearance) under section 5 of the

VRA before implementing any change affecting voting. See 42

U.S.C. § 1973c; 28 C.F.R. §§ 51.26-51.28.

¶37 To be relieved of the preclearance requirement,

Arizona must show that, for the last ten years, neither it nor

any of its political subdivisions has engaged in any
18
discriminatory voting practice. See 42 U.S.C. § 1973b(a)(3).

The State also would have to show that it and “all governmental

units within its territory . . . have eliminated voting

procedures and methods of election which inhibit or dilute equal

access to the electoral process.” 42 U.S.C. § 1973b(a)(1)(F).

The State argues that Tucson’s continued use of at-large

elections might jeopardize Arizona’s ability to be relieved from

the preclearance requirements because at-large council elections

have sometimes been found to violate the VRA.3

¶38 The VRA, however, does not alter Strode’s analysis of

the relative power of the state legislature and charter cities

regarding the structure of city government. Tucson undeniably

must comply with applicable federal law. But at-large elections

do not necessarily violate either the federal constitution or

the VRA. See Thornburg v. Gingles, 478 U.S. 30, 48 (1986). The

State does not claim, nor is there any evidence in the record

suggesting, that Tucson’s method of selecting its city council

violates the VRA. Indeed, Tucson has elected minority council

members for decades and two of its current council members are

Hispanic.

3
At-large elections for city councils violate § 2 of the Voting
Rights Act when they deny minority voting rights. See, e.g.,
United States v. Village of Port Chester, 704 F. Supp. 2d 411,
446 (S.D.N.Y. 2010); Benavidez v. City of Irving, 638 F. Supp. 2d
709, 732 (N.D. Tex. 2009).

19
¶39 Concerns to prevent possible violations of the VRA do

not support A.R.S. § 9-821.01(C) trumping Tucson’s charter. The

statute does not affect the many Arizona municipalities that use

at-large elections for both primaries and general elections, and

Tucson could satisfy the statute’s requirements by retaining its

at-large general election while abandoning ward-based primaries.

¶40 We also reject the State’s suggestion that the Arizona

Constitution, as interpreted in Strode, somehow changed as a

result of Congress’s enactment of the VRA in 1965 and the

extension of the preclearance requirements to Arizona in 1975.

Although congressional enactments can preempt state law under

the Supremacy Clause, U.S. Const. art VI, there is no contention

that Congress has preempted the home rule provisions in

Arizona’s Constitution, and we do not believe the VRA impliedly

amended them. If Arizona’s Constitution has become outdated in

its respect for local autonomy, it is up to Arizona’s voters to

approve any amendment.

¶41 Independent of the VRA, the State contends that § 9-

821.01 involves matters of statewide concern because it promotes

“equality in the democratic process.” Arizona’s Constitution

recognizes that “governments derive their just powers from the

consent of the governed,” art. 2, § 2, and 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
20
exercise of the right of suffrage.” Art. 2, § 21. Article 7,

Section 12 of the Constitution states that “[t]here shall be

enacted registration and other laws to secure the purity of

elections and guard against abuses of the elective franchise.”

¶42 Some state courts have held that legislatures may

require home-rule cities to adopt district-based elections for

city councils. See, e.g., Jacobberger v. Terry, 320 N.W.2d 903

(Neb. 1982); Casuse v. City of Gallup, 746 P.2d 1103 (N.M.

1987). Other state court decisions, like Strode, have

recognized that aspects of municipal elections are of local

concern, although some of these decisions concern constitutional

provisions that specifically empower cities to regulate

municipal elections. See, e.g., Johnson v. Bradley, 841 P.2d

990 (Cal. 1992) (holding that city charter authorizing partial

public financing of campaigns for elective city office

superseded state statute in light of art. 11, section 5(e) of

California Constitution); State v. Callahan, 221 P. 718 (Okla.

1923) (holding that state law did not displace charter

provisions for non-partisan municipal primary); Ex parte Boalt,

260 P. 1004 (Or. 1927) (stating that election of municipal judge

was of purely local concern).

¶43 We are not persuaded by the out-of-state cases cited

by the State. In Jacobberger, the Nebraska Supreme Court held

that a statute mandating district-based elections displaced
21
Omaha’s charter provisions for at-large elections, noting that

“the primary concern of the legislation was to insure the

fundamental right to vote and the right to proportionate

representation.” 320 N.W.2d at 907. No similar intent was

identified by Arizona’s Legislature in amending A.R.S. § 9-

821.01; that statute, as noted, does not bar at-large elections

as such; and at-large elections do not necessarily deny voting

rights protected by Arizona’s Constitution or federal law. In

Casuse, the New Mexico Supreme Court, relying on its prior

decisions interpreting New Mexico’s constitution as allowing

general legislation to limit a municipality’s home-rule power,

held that a state law preempted Gallup’s charter provision for

at-large council elections. 746 P.2d at 1104. This reasoning

is contrary to Strode and other Arizona decisions.

¶44 The State finally observes that Tucson’s method of

electing council members has resulted in candidates winning in

the general election who did not receive the most votes in the

ward from which they were nominated. The State contends that if

a council member represents a particular ward, the State has an

interest in assuring the person has the support of a majority of

the ward’s voters. But Tucson council members, although

nominated by ward, represent the entire city, just as do council

members elected at large in other cities.

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¶45 An at-large council election by its nature allows

candidates to win who may not receive a majority of votes in

particular areas of the city. (District based elections, in

contrast, allow council members to vote on matters affecting the

entire city even though they are not elected, and might not be

preferred, by a majority of the city’s voters.) The provisions

in Arizona’s Constitution regarding voting rights, however, do

not require cities generally to adopt district-based elections.

Instead, Article 13, Section 2 allows a charter city to

determine “who shall be its governing officers and how they

shall be selected.” Strode, 72 Ariz. at 368, 236 P.2d at 54.

¶46 Determining the method for electing city council

members necessarily involves a weighing of competing policy

concerns. Our opinion neither involves policy choices nor

endorses one method of election over another; instead it

considers whether Arizona’s Constitution entrusts those issues

to the voters of charter cities or the state legislature.

¶47 Given Article 13, Section 2, the intent of Arizona’s

framers, and the history of municipal government in our state,

we hold that electors in charter cities may determine under

their charters whether to constitute their councils on an at-

large or district basis and whether to conduct their elections

on a partisan basis. In so doing, they must of course comply

with the Arizona Constitution and federal law. But the local
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autonomy preserved for charter cities by Arizona’s Constitution

allows Tucson voters to continue electing their council members

pursuant to the city’s 1929 charter notwithstanding A.R.S. § 9-

821.01(B) and (C).

CONCLUSION

¶48 We vacate the opinion of the court of appeals and

remand the case to the superior court for entry of summary

judgment in favor of the City of Tucson.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
A. John Pelander, Justice

_____________________________________
Robert M. Brutinel, Justice

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