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Tucson asks court for guidance on recount uncertainty

Published: Wednesday, November 22, 2023 - 1:45pm

The Tucson City Council will ask the Superior Court to clarify whether a narrowly passed measure to raise council member salaries is subject to an automatic recount. 

In a special meeting on Tuesday, the council members authorized City Attorney Mike Rankin to notify the Arizona secretary of state and attorney general of the situation, and to file a “legal action” asking the court for its opinion.

On Nov. 5, Tucson voters passed Proposition 413 by a margin of just 289 votes. If it goes into effect in December, the measure will more than double Mayor Regina Romero’s salary and more than triple the salaries of the council members.

“I think this is absolutely the right decision to make; to let the court break the tie, and we’ll live with the results of that,” Vice Mayor Steve Kozachik said.

Rankin told the council that he doesn’t believe a recount is required under state law because the statute only applies to candidate races — not ballot measures. 

“We’re happy to do a recount, but what we can’t do is a recount that isn’t authorized by Arizona state law, because that would be violating Arizona law, and I can’t put the mayor and council or the city in the position of violating state law,” Rankin said in the Tuesday meeting.

The state legislative council’s executive director, Mike Braun, told Arizona Luminaria that a recount is required for local measures — disagreeing with Rankin’s interpretation of the law. The legislative council is tasked with reviewing all of the legislature’s bills before they become law. 

Senate attorney Chris Kleminich said he agrees with Braun’s interpretation.

A spokesman for the attorney general declined to comment since the issue is ongoing.

The city issued a statement on Friday afternoon announcing that the city is not required to perform a recount. Council members then had to contend with attention from media and voters as to whether they were trying to subvert the law in favor of a pay raise.

Rankin explained his legal opinion more thoroughly at Tuesday’s meeting.

State law says that a recount is required when the margin “between the number of votes cast for and against initiated or referred measures or proposals to amend the Constitution of Arizona” is narrow enough. 

In 2022, the legislature passed a law to increase the trigger for an automatic recount from one-tenth of 1% percent to one-half of 1%. In an election with about 94,000 ballots cast, the 289-vote margin is well within the margin requiring a recall.

In the section of the law referring to recounts, there is only reference to statewide officials. The law also specifically states that the secretary of state must take the case to Maricopa County Superior Court. 

Rankin said that clearly indicates the law applies only to statewide issues. “It became very clear that this system was set up for statewide measures, not a local proposition, because fundamentally it makes no sense at all to have a recount of a city election administered by the secretary of state, the governor and the Maricopa County Superior Court,” he said.

Council members unanimously approved the canvass of the election, certifying the results, as they’re required to. They also unanimously supported the plan to go to the courts for an opinion on the recount issue.