Does Az’s new recount law apply to a Tucson ballot measure?

City, secretary of state ask for attorney general’s opinion

By: - November 28, 2023 3:16 pm

Illustration by Niyazz | iStock / Getty Images Plus

The Arizona Secretary of State, along with Tucson’s City Attorney, are asking Attorney General Kris Mayes to weigh in on whether a narrowly passed ballot proposition triggers a recount under a newly revised state law. 

Tucson’s Proposition 413, which was on the Nov. 7 ballot, triples the annual salary of city council members and would more than double the mayor’s salary. Currently Tucson elected officials are paid below minimum wage, but the change would put them above the salary range of elected officials in the state’s largest metropolitan area, Phoenix. 

The proposition passed by a mere 289 votes. That margin falls within the threshold to trigger an automatic recount under Arizona law but city officials claim that the measure is exempt. 

According to Tucson City Attorney Mike Rankin, the law does not apply to city ballot measures such as Proposition 413, but only applies to the election of candidates and statewide initiatives. 

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“My hope is that you and the Attorney General will agree with my analysis,” Rankin said in a letter to Secretary of State Adrian Fontes. “If so, an opinion would be helpful. But regardless of your position, I would like to discuss this matter with you, Attorney General Mayes/and or your designees so that I can determine the next steps, if any, that the City of Tucson should take relating to these matters.” 

A bill signed by Republican former Gov. Doug Ducey last year lowered the threshold for triggering automatic recounts. If that bill had not been signed into law, it would have been obvious that the ballot proposition did not qualify for an automatic recount. 

The Arizona Secretary of State’s Office confirmed to the Arizona Mirror that it had received the letter and request. 

“Because this is a legal matter and the request was for a legal opinion, the Secretary has decided to confer with the Arizona Attorney General, the Hon. Kris Mayes, for a formal legal interpretation of the [law] discussed in this matter,” the office said in a statement to the Mirror. 

Before a recount takes place, state law says that a city or town council must certify that one is necessary and then file with a Superior Court judge who would then order the recount. So far, the new law has triggered three recounts, but none of those changed the original outcomes of the races. 

Not everyone agrees with Tucson’s interpretation of the law. 

Arizona Legislative Council’s Executive Director, Michael Braun, told Arizona Lumanaria that the law does pertain to city ballot measures. The Arizona Legislative Council is a non-partisan legislative committee that helps prepare bills, perform legal research and review state laws. 

“Because the Secretary of State lacks the authority to provide Mr. Rankin with the legal opinion he is seeking, I am reaching out to you,” Fontes said in a letter to Mayes. “Obtaining an opinion from your Office will provide important assurance to all localities in the State regarding how to proceed under similar circumstances.”

This all comes on the heels of Tucson facing pressure for initially saying a recount was not necessary before later moving to request an opinion from the attorney general and secretary of state. The Tucson City Council voted on Nov. 21 to send the letter to the secretary of state asking for a legal opinion. 

This likely will not be the last time that the new recount law causes confusion or concern. Election officials across the state are worried that the new law, which makes recounts more likely, could cause election officials to miss state and federal deadlines. 

Democrat Gov. Katie Hobbs’ Election Task Force Committee on Nov. 1 recommended changes to some election deadlines and pushing up primary dates as possible fixes for the deadline issues the new law could cause. 

The committee also proffered the possibility of nixing the new recount law altogether, an option that the Republican-controlled legislature is unlikely to pursue. 

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Jerod MacDonald-Evoy
Jerod MacDonald-Evoy

Reporter Jerod MacDonald-Evoy joined the Arizona Mirror from the Arizona Republic, where he spent 4 years covering everything from dark money in politics to Catholic priest sexual abuse scandals. He brings strong watchdog sensibilities and creative storytelling skills to the Arizona Mirror.

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