In a packed, and at times raucous, hearing held on Monday, August 12, Pima County Superior Court Judge D. Douglas Metcalf was once again overseeing a 2019 election challenge brought against the city by a local minority party. The challengers are trying to keep an initiative the city recently certified, and that would effectively make Tucson a ‘sanctuary city,’ off of the November general election ballot.
Plaintiffs Benny White, Ann Hollis and Mike Ebert, all local Republicans, are challenging the City of Tucson charter and claim it unconstitutionally limits the number of signatures a petition initiative must collect to be on a general election ballot. The city claims the challenge is unfounded and does not violate Arizona’s constitution.
John G. Anderson, a lawyer for Munger, Chadwick and Denker, P.L.C., argued, through the use of a powerpoint, that chapter 19, section one of Tucson’s charter “is unconstitutional, preempted by state law and creates an absurd result.”
That section of the city charter governs the way petition initiatives make it onto a general local election ballot and says that any petition must obtain the signatures of 15 percent of qualified voters who voted for mayor in the most recent election.
Anderson said this method disenfranchises minority parties and voters who may not have cast a vote for the mayor, even though they may have voted on other issues, or for other offices, in a given election.
The last election for mayor took place in 2015 and Anderson said there were approximately 21,000 participating voters, out of 82,420 total votes cast, who did not cast a vote for the office of mayor. He illustrated how many of those 21,000 cast votes for council representatives and other measures, but not for mayor.
Anderson further argued that because the city charter is unconstitutional, state law should apply. The state law Anderson referred to says the basis for determining the number of signatures needed is based on the “whole number of votes cast at the city or town election at which a mayor or councilman was chosen.”
“If Republicans want to increase the number of voters, run a candidate,” Principal Assistant City Attorney Dennis McLaughlin fired back. “We didn’t make Republican voters not vote [for mayor].”
McLaughlin argued that the city charter is symmetrical to state law governing statewide petition initiatives in that the required number of signatures for state initiatives is based on the number of voters who cast a vote for governor in the most recent election.
People’s Defense Initiative recently submitted 18,200 petition-supporting signatures to the city clerk’s office. The clerk’s office examined the petition and determined 17,402 qualified for further examination and verification, according to City Clerk Roger Randolph in an affidavit filed with the city’s response to the lawsuit.
Of the 17,402 qualifying signatures, 28.25 percent of them were determined to be invalid according to a random sample calculation the clerk’s office performs for all petition initiatives. The clerk’s office further found 152 additional signatures to be invalid because of “a defective circulator’s or notary’s affidavit” and the county recorder’s office took issue with an additional 246, leaving the total number of valid signatures at 12,200.
In December of 2018 the clerk’s office determined 9,241 signatures would be needed for the measure to qualify for the 2019 November ballot.
The initiative’s challengers seek to have the 21,000 undervotes, overvotes and write-ins included in the 15 percent calculation which would push-up the number of required signatures to 12,363.
The challengers’ complaint alleges a number of additional claims against the city, including: the city charter is superseded by state law; the city clerk’s interpretation of the city charter produces an absurd result; the city clerk failed to remove facially invalid signatures in violation of multiple state laws; the city clerk failed to identify all of the invalid petition circulators’ affidavits; and, the city clerk failed to disqualify the signatures of voters who do not live within city limits.
Anderson argued the city clerk’s office did not do a thorough enough job in inspecting the petition itself and the petition circulators’ affidavits. He argued that state law requires “strict compliance” with any statutory requirements regarding initiative measures.
McLaughlin countered that the law Anderson refers to applies only to statewide measures, not local elections. He also said the petition circulators’ affidavits were largely in “substantial compliance” with legal requirements.
“They seem to think the city should go line by line [in evaluating petitions},” McLaughlin said, “the random sample serves that purpose.”
McLaughlin argued the challengers did not have someone there to witness the petition-examination process in July and ultimately have to show by “clear and convincing evidence” the clerk’s office failed to perform any of their duties according to requirements.
“They can’t come up and show you a powerpoint,” McLaughlin said. He argued the challengers must prove their arguments.
Judge Metcalf asked Anderson if the “clear and convincing” standard should apply to the case or if another standard should govern the outcome. Anderson appeared unprepared to answer the question.
“I don’t have anything today,” Anderson said, “I think preponderance [of the evidence] makes sense.”
As each lawyer argued their points, attendees in the gallery responded in kind, in mostly lowered voices, and at times applauded the points being made.
Judge Metcalf intervened during the first applause, quieting the crowd, “This is not a city council meeting,” he said.
Judge Metcalf said he expects to issue a ruling by Friday.
Benny White declined to provide any comment after the hearing. As of the time of publication, Anderson did not respond to Tucson Del Sur News questions sent in an email.
Zaira Livier, executive director of People’s Defense Initiative, expressed confidence in the city’s legal arguments made at the hearing.
“I think the city did a fantastic job at arguing their point,“ Livier said, “I think it was pretty black and white, pretty simple that their [the challengers’] argument is flat and without any substance or fact behind it.”
Livier said that should PDI and the city receive an unfavorable ruling PDI is prepared to file an appeal.
McLaughlin said in the event of an adverse ruling the city council would need to approve an appeal if PDI or any of the other defendants in the lawsuit did not file one.
“More likely, however, is that the Petition proponents will already be appealing,” McLaughlin said in an email, “In that case, just as in the trial court, the City Attorney will automatically have authority to defend the City Clerk’s actions in the context of the appellate battle between the proponents and opponents.”