A Matter of Statewide Concern? The Legislature and Charter Cities

By Joni Hoffman
League General Counsel

A recent article in the Arizona Capitol Times reported that the Arizona chapter of Americans for Prosperity is going to seek legislation next year to require cities to hold their elections at the same time as the statewide general election. The proponents of this idea believe that city elections held in conjunction with statewide elections will lead to increased voter turnout. They posit that lower voter turnout leads to increased influence by labor unions, which they oppose. League Executive Director Ken Strobeck counters that there are good reasons for having municipal elections separate from statewide elections, including keeping partisanship out of these elections and avoiding municipal issues from getting lost among a large statewide election ballot.

Whatever the policy reasons for and against such legislation, this idea is yet another challenge to the principle that cities and towns should determine what is best for their own governance. Is this kind of legislative proposal even constitutional? Perhaps not. In fact, with respect to charter cities, the Arizona Constitution grants them specific power to control issues that are purely a matter of local control. This proposed legislation appears to be counter to that constitutional guarantee.

Cities Generally

The Arizona Constitution requires the Legislature to establish municipal corporations (cities). Article 13, section 1, provides in part ":...the legislature, by general laws, shall provide for the incorporation and organization of cities and towns and for the classification of such cities and towns in proportion to population..."

Charter City Authority

Case law in Arizona provides that general law cities can exercise only those powers that the Arizona Constitution and statutes confer on them expressly, together with those powers that arise by necessary implication out of those that are expressly granted. There is one important exception. That exception is the charter city. The Arizona Constitution allows larger cities to adopt a charter, which requires a vote of the people and approval by the Governor. Specifically, article 13, section 2 provides that "[A]ny city containing, now or hereafter, a population of more than three thousand five hundred may frame a charter for its own government consistent with, and subject to, the constitution and the laws of the state..."

Once a city has successfully completed the city charter process, the charter becomes the "organic law of the city." Therefore, charter cities, unlike general law cities, draw their power from their charter and are not required to look to legislative authority before exercising a power. As the organic law, the provisions of the charter supersede all laws of the state in conflict with the charter provisions insofar as such laws relate to purely municipal affairs.

Preemption of Charter Cities

Charter cities can be preempted by state law in the same manner as other municipalities, but only if the legislature finds the issue is one of statewide concern. Occasionally, the legislature will make a specific declaration in a bill that the issue is a matter of statewide concern so charter cities are on notice that they are being preempted. But simply making a declaration that something is a matter of statewide concern doesn't necessarily make it so, and courts have sided with charter cities when the legislature has tried to overstep its constitutional bounds.

The most recent example of the court stepping in to stop legislation that tried to usurp a city's charter happened this spring when the Arizona Court of Appeals rebuked the legislature's 2009 attempt to prohibit Tucson from holding partisan elections and its modified ward election process. Although the legislature declared the matter one of statewide concern, the Court of Appeals disagreed and held the statute "interfered with the city's authority to control its municipal affairs." Further, the court stated that "the relationship of voters to their municipality is purely a local matter."

This case will likely be appealed to the Arizona Supreme Court and the League is closely following its progress, but we are pleased that the Court of Appeals recognized that the legislature cannot overrule a charter city's constitutional authority to govern its own affairs simply by declaring something is a matter of statewide concern. This will be a powerful argument if a bill is put forth next session proposing that cities change their election dates to coincide with the statewide general election.

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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