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

Do the damned recount. The existence you save may be your own.

Tucson city officials issued a statement Friday night declaring Prop. 413, which passed Nov. 7 by just 289 votes, is exempt from a recount provision in state law. It’s based on City Attorney Mike Rankin’s reading of the statutes. 

A recount would require a court order to begin, and the city attorney just gave the Council an opinion saying a recount isn’t necessary. Rankin makes recommendations. The Council makes decisions. The law seems to give them the power to go another way.

The name of this column is “What the Devil won’t tell you” but even Satan is like “Oh, c’mon! This is obvious!” on taking an extra step to assure voters actually gave the Council a raise.

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

The Council is set to approve the election canvass on Tuesday during a virtual special meeting.

Prop. 413 ties Council pay to the supremely compensated boards of supervisors of Arizona counties. Under the measure, salaries will go from $24,000 per year for Council members to $76,600, with a bump to $95,750 for the mayor, who now makes $42,000.

I have argued for a raise over and over, dating back to 2015. I did again just a  few weeks ago. Council members deserve it, because a gig on the City Council overseeing a $2 billion budget is a real job that requires commensurate pay.

The whole process of how the city has gone about referring Council raises to voters is to first make sure the elected officials don’t seem too eager. Under the City Charter, the Council sets up a citizens committee and the committee does the research and makes a recommendation. The Council is then mandated to take that recommendation and put it on the ballot.

The results on Nov. 7 say the ayes had it by 0.3-ish percent of votes cast.

State law says an election margin of less than  0.5 percent triggers a recount. However, the city staff is making the case that law only applies to candidate elections and statewide constitutional amendments. So city ballot measures aren’t covered.

“These recount provisions, relating to local municipal elections, only apply to elections of candidates to an elected office rather than referred non-candidate ballot measures. The recount provisions found in the statutes relating to referred non-candidate measures, only apply to referred measures that are called and administered as a statewide general election and not as a local special election,” the city said in the release.

I’m just going to lay out two of the law’s relevant provisions.

First, A.R.S. 16-661 stipulates:  

“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.”

It says “initiated or referred measures.” Prop. 413 is a referendum. The state law also says, the general provisions of Arizona election laws apply to all elections in Arizona, except for school boards and special taxing districts (Golder Ranch Fire District, for example).

Second, A.R.S., 16-191 says: 

“Except as provided by subsection B and except where different election procedures or provisions are set forth by statute, the provisions of this title apply to all elections in this state.”

Subsection B doesn’t provide any loophole for the city.

That’s where it gets kind of murky from my perspective, but I’m not a lawyer. Rankin is and he says things are crystal-clear. 

Rankin files, or doesn’t

Rankin, the actual lawyer, makes the argument that state law does not allow a recount because ARS 16-661 does not enumerate “special elections” as those covered by automatic recounts. The rest of Chapter 16 refers specifically to local elections only in the context of contested candidate races and not referenda.

Get ready for the rabbit hole because this gets weird, fast. 

Prop. 413 was on the general election ballot but was referred to the voters as a “special election.” So the city attorney told the Sentinel he considers it exempt from recounts.

Why does the law only refer to elected local officers in the parts of the law detailing how the recount is to proceed but includes a reference to all ballot initiatives and referenda in what is covered?

If special elections are actually exempt, why did the Legislature not include them specifically in the subsection that lists those exemptions?

The best answer is that the Arizona Legislature has long sucked at its job and can’t write legislation that is consistent and clear. 

And it gets better because the Tucson City Charter says special elections, schmeshal elections. They’re all to be handled like general elections, according to our primary governing document: “All special elections herein provided for shall be conducted in the same manner and under the same provisions as are provided for the holding of general elections, including the qualifications of electors and the nomination of candidates.”

Rankin is left with his best interpretation, and says he can’t in good faith go to the court to kickstart a recount if the Council says do one anyway. Does that mean he’d refuse the Council’s direction? 

“We’ll cross that bridge if it happens and I don’t expect it will,” he told the Sentinel on Sunday.

I get his interpretation as a lawyer but the Council needs to appear to not be squeezing a fat pay raise through a narrow loophole. 

Rankin says the courts are available to someone challenging his opinion.

“Anyone is free to run off to court and say, ‘Hey we think Rankin is wrong.’ It wouldn’t be the first time,” he said.

A City Council member is anyone. So are three.

Let’s go out on a limb and say the city attorney’s interpretation is more correct than the columnist’s (crazy, I know). Ask for the recount anyway. Rankin even told me the best political reading is to go for a recount. 

There’s a reason for that right now.

Bigger implications

In case the Council isn’t aware, faith in governing institutions does not enjoy lofty purchase on the prodigious heights of voters’ esteem. 

The country – nay, the world –  really needs Arizona voters as non-cynical as we can get them right now. 

Voters are so disgusted with said institutions that polls say they would right now likely elect former president Donald Trump. And I’m pretty sure his campaign just called for a genocide against political opponents – y’know, the 81 million who voted against him last time. Yeah, them. Team Trump trumpeted that his opponents’ “sad, miserable existence will be crushed.”

To be clear: No one survives a crushed existence. Crushed feelings, crushed political voices… sure. Crushed existence? No.

By the way, I can hear the argument among the chattering class of the punditry is “who exactly constitutes Trump’s ‘opponents’ and how do you define ‘a crushed existence?’ Can anyone really know how sweeping a mass murder would really be?” 

Boy, is that the wrong argument to have. People need to ask, if genocide is hyperbole than what is it we’re exaggerating? Ohhh, yeaaah, huh? 

Enter, the Fix

How do voters willingly elect, dictators, autocrats and butchers? ‘Cuz voters decide everyone’s corrupt and the fix is always in, so what does anything matter? 

Arizona voters are going to have an outsized say in the 2024 election. Give them fewer reasons to think the system is rigged, not more, por favor.

Prop. 413 isn’t some popular bond for new fire trucks or a local ordinance voters approved that declares “Mean people suck.” Voters seemed to have narrowly approved a very substantial raise for Council members, meaning Prop. 413 puts money into the pockets of the mayor and Council and no one else.

The crazies won’t be crazy when they argue Council members conveniently found this loophole when it puts $50,000 a year in their personal checking accounts.

Hello there Mr. Fix, would you like to come in? Hey everybody, The Fix is in.

If the city thought their determination didn’t have some sketchiness to it, then why send out the press release after 6 o’clock on a Friday night? That wasn’t necessarily Rankin’s doing because it was shipped out by one of the city’s spokespeople after business hours, but the news dump maneuver is a common one when the government is trying to make sure something doesn’t get a lot of notice.

Double check

Anyway, a recount isn’t likely to change the outcome. Good lord, when the Kris Mayes-Abe Hamadeh recount decided who should serve as Arizona attorney general, Hamadeh couldn’t make up 289 votes out of 2.5 million cast.

He did make up 277 votes, but that required a supreme screw-up in Pinal County.

It’s highly unlikely that the “no” vote on Prop. 413 would eclipse a favorable 289-vote margin with 94,106 votes cast in the city election. 

However, recounts are there in case there was a supreme screw-up and if such a thing did happen in Tucson this year, then voters nixed the raise. The mayor and Council members don’t get one.

I would be shocked if it did happen, but I was shocked Mayes beat Hamedah. I was rolling around on the floor laughing my you-know-what off that MAGAchrist Superstar lost to Katie Hobbs, who campaigned like a moody, reclusive artist.

Weirder things happen.

Those of us arguing elections aren’t rigged would have to cede the point “OK, maybe Prop. 413 was kind of rigged, maybe” every time we are confronted with another tin-foil ballot conspiracy.

Then state Sen. Justine Wadsack would get to smirk with superiority. Who doesn’t hate when that happens? 

Then again, Prop. 413 might not pique any MAGA-adjacent ire at all because it doesn’t involve transgender kids, “critical race theory” or election denial.

Still, don’t tempt the fates and make more Arizona voters feel “disaffected.” If a few votes flip in Arizona next year and the whole of humanity could take a very dark turn for the next century… or five.

So do the damned recount. And if you think my message is hyperbolic, then think about how doing a recount is just the right thing to do. As we all know, the legal required thing and the right thing are sometimes not the same thing.

Council members should double-check that voters gave them the raise they are about to pocket.

End of story.