Kick it to the court: Tucson Council may have found a way forward on Prop. 413 recount

The Tucson City Council has taken the position that discretion is the better part of not getting your butt kicked all over town by voters who believe the fix is in.

Based on the advice of City Attorney Mike Rankin during a meeting Tuesday, the Council voted unanimously to certify the 2023 election canvass and take a step that maybe, possibly could lead to a recount of Prop. 413. That’s the ballot measure that gave Council members honking raise because it was approved by 289 votes out of 94,000 cast. At least, we think it was approved.

The Council seemed poised to approve the election canvass without taking any action on a recount because the City Attorney’s Office offered the legal opinion that local elections that don’t involve political candidates can’t be recounted under state law. Tucson Sentinel Editor Dylan Smith reported a story detailing how, at the very least, the law on this matter was unclear. Then a certain columnist I know (me! me!) jumped up and down that not doing a recount was politically crazy.

Now that the Sentinel’s asked some questions, the Council is at least leaving the possibility open. So, yer welcome, Tucson.

The election margin was well within the 0.5 percentage point threshold, which triggers a recount in Arizona. Or does it? Rankin argues no.

Earlier: Tucson officials claim narrow ‘yes’ vote for Prop. 413 doesn’t trigger recount

Still, he recommended the Council that he write a letter to the Arizona secretary of state and attorney general arguing “Hey, we had this election down here and we don’t think recounts apply to local referenda but the margin falls within the 0.5 percent threshold that would trigger a second run through of ballots.”

After some discussion with those state officials, the city will then ask a court for a ruling as to whether the law applies.

Of course, no recount can happen until after the Council approves the canvass, which it did Tuesday at Rankin’s recommendation.

Basically, the Council won’t be acting unilaterally to decide they will take that raise just because their lawyer says recount laws don’t apply.

Why wouldn’t the statutes cover this situation?

Rankin, working with what his team of attorneys to decipher the law, is of the opinion the the law only to statewide initiatives and referendum. The parts of the law that deal specifically with local recounts only mention contested races for local offices. Those are candidate elections.

Earlier: Recount the raise: Tucson should do what’s right on Prop. 413, not slip through legal loopholes

For further proof, Ranking said that recounts of ballot questions are to be conducted and paid for by the state, The statutes require the secretary of state to get Maricopa County Superior Court to order a recount and once it’s completed, a judge there instructs the governor to declare the result. 

Game. Set. Match. Or so Rankin said:

“It became very clear that this system was set up for statewide measures, not a local propositions. Fundamentally, it makes no no sense at all to have a rec of a reount of local election be administered by the secretary of state, the governor and the Maricopa County Superior Court.

The Council can’t just ask for recounts to make people feel better. In Arizona, recounts are only done if they are legally necessary and called for by a judge.

“We’re happy to do a recount, but what we can’t do is a recount that violates state law,” Rankin told the Council prior to the vote on Tuesday.

Gotcha. 

Evidence & absence

Speaking of things that don’t make sense…

The state requires a recount when candidates are separated by less than  a 0.5 percent margin because that’s close enough to warrant double-checking that the winner actually won. Why in Jefferson’s name would they provide a carve out for local ballot questions? Are bond results not important matters worthy of certainty? Are new laws Arizonans have to live by just afterthoughts?

The law does specifically exempts certain elections like special districts and school boards. Why wouldn’t it include local ballot questions in the list of exemptions? 

Other parts of state election law pertaining to recounts apply broadly to all referred and initiated measures everywhere in the state, which Rankin swats aside because local ballot questions are omitted from further discussion.

Does all require a specific exemption? Or is omission enough?

Sweet move out

Look, if you, dear reader, are going to bet money on whom a judge would side with – my do-gooder self saying “call for a recount” or Rankin, who does law for a living, you should bet on Rankin over my needling all day long. If you are going to bet your Council seat, stick with me.

The stakes relating to public confidence are a little higher when failure to recount puts more than $50,000 a year into the Council members’ pockets than it would be with a landfill bond.

And to his credit, Rankin understood this. He told me Sunday that if he’s talking politics, then do the recount. He’s a lawyer though, and has to go with his best interpretation of the law.

Still, he appears to have found a way out with a sweet legal maneuver.

The city will let the secretary of state and attorney general know it has got a situation down here and then ask a court to decide if his opinion is correct. The maneuver means Rankin’s bosses don’t look so greedy for the cash and he doesn’t have to make an argument to the courts he thinks is wrong.

Council members jumped hard on this bridge out of political purgatory.

It’s not going to be the Council that decides if their raise was approved by a 0.3 percent of the vote. 

A recount almost certainly won’t change the results – they rarely move even a tenth of a percent of votes – but the last thing the Council wants is to give election deniers something deniable.  

“We’re living in a time right now where elections all over the country are a new level of scrutiny,” said Councilmember Steve Kozachik. “And I think that we should do everything in our power to assure there’s no doubting in the 413 results.”

I need to point out here, that my raising questions about the recount and the results is not because I have any reason to doubt the results of the election. They weren’t fixed. County election workers did their job. 

If a Council raise was fixed, it wouldn’t be fixed like this.

Tucson, America and the world needs as many Arizona voters feeling confident in elections as possible heading into 2024. Weird things are afoot in one of our major political parties.

As Mayor Regina Romero puts it: “Because there’s misinformation out there, there’s extra scrutiny out there, (so) there’s no point in not getting a second opinion.”

What should be obvious to anyone paying attention for the last two years is that the hard-core election deniers won’t be satisfied. Facts don’t concern them. Feelings drive them. That second order of voter who knows deniers and rolls their eyes can be more sympathetic to the Stop the Steal crowd if stuff actually does look fishy, even if it’s just a hole in the law.

Which brings me, as always, back to the Legislature.

Looking at you, Phoenix

Listen up Arizona lawmakers. Next time you all feel like the election laws need an overhaul, maybe don’t worry so much about bamboo ballots, Italian space lasers or the obvious “fraud” of urban progressives casting ballots.

Maybe make sure that the law tracks. 

Put a chart on a wall. List the different kinds of elections down one side and if recounts should be necessary down the other. State clearly which ones are covered and then list which kind of elections are exempt. This isn’t hard.

Rankin shouldn’t have to divine the law by squinting, tilting their laptops and consulting the Oracle of Delphi to figure out how the rules work.