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.


                                                22
¶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
                                         23
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




                                       24