Does Arizona's automatic-recount statute apply to a city ballot measure (like Tucson's Proposition 413) that passed by a margin under one-half of one percent?

Plain-English summary

On November 7, 2023, Tucson voters approved Proposition 413 (raising the mayor's and councilmembers' salaries) by 289 votes out of 94,014 cast. That is about 0.31 percent, well under the half-percent threshold that triggers Arizona's automatic recount statute when an "initiated or referred measure" is at issue. Tucson asked the Secretary of State and AG whether the recount law required a recount.

Attorney General Kris Mayes said no. Reading A.R.S. § 16-661 in isolation, "referred measures" might appear to cover any referred ballot question, but Arizona courts require statutes to be read in context with related provisions. Sections 16-662, 16-665, and 16-666 all treat referred measures the same way they treat statewide offices: the Secretary of State certifies the recount in Maricopa County Superior Court, the Governor proclaims the result, and the State pays for the recount. None of those mechanisms make sense for a city election. Read in context, "referred measures" in § 16-661 covers only statewide measures, not municipal ones.

The opinion also addressed why a 2004 amendment (S.B. 1244) confirming that recount provisions apply to city candidate races does not extend the rule to city ballot measures. The legislature in 2004 added language only as to "an office," not as to municipal measures, so reading municipal measures into § 16-661 today would be improperly reading something into the statute that the legislature did not put there.

A footnote noted that Proposition 413 was a special election, and that the recount statute, which speaks of primary and general elections, reaches special elections by way of A.R.S. § 16-537.

What this means for you

If you are a city or town clerk

The automatic recount statute does not require you to recount a local ballot measure based on the half-percent margin alone. If your city or town wants the option of a margin-triggered recount for municipal measures, you would need either a charter provision or a council-adopted ordinance authorizing it. A close municipal-measure vote is still subject to the Election Code's contest, canvass, and post-election challenge procedures, but those are separate from the automatic-recount mechanism in § 16-661.

If you are a candidate or committee on a city ballot measure

A close win or close loss on a city measure does not, on its own, trigger a state-funded recount. If you believe the canvass is wrong, your remedy is an election contest under the applicable provisions of the Election Code, not an automatic recount.

If you are a county elections official handling municipal canvasses

Section 16-666 makes the State responsible for the cost of statewide recounts and the city or town responsible for the cost of recounts of city or town offices. There is no statutory category for state-funded municipal-measure recounts, which reinforces that no automatic recount is contemplated for city ballot measures under the current statute.

If you are a city attorney advising on close ballot-measure races

Track this opinion when advising on canvass timelines and post-election litigation. The opinion is non-binding but persuasive, and it explicitly endorses the textual reading that the legislature has the authority to widen the recount statute to cover municipal measures and has chosen not to do so. Any attempt to compel an automatic recount of a city measure under § 16-661 will run into this opinion and the surrounding statutory framework.

Common questions

Q: What is Arizona's automatic-recount threshold?
A: A.R.S. § 16-661(A) at the time of the opinion required a recount when the canvass showed 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," was less than or equal to one-half of one percent of the votes cast on that race.

Q: Why doesn't the term 'referred measure' obviously cover city referenda?
A: The AG looked at the surrounding sections. Section 16-662 sends "referred measure" recounts to the Secretary of State in Maricopa County Superior Court, while county or city office recounts go to local officials and local courts. Section 16-665 routes referred-measure recount certifications to the Governor for proclamation. Section 16-666 makes the State pay for referred-measure recounts. All three mechanisms are wired for statewide measures. Reading "referred measure" to also include a single-city ballot question would mean the State pays for a Tucson recount and the Governor proclaims its result, which is not how the statute is built.

Q: Did the 2004 amendment change anything?
A: S.B. 1244 (2004) clarified that municipal candidate elections are subject to recount, after a Youngtown council race exposed an ambiguity. The amendment used the phrase "an office" throughout. The legislature could have, in 2004 or any later year, extended recount coverage to municipal ballot measures, but it has not. Under settled Arizona statutory construction, that legislative silence cannot be read as inclusion.

Q: Does the special-election framing matter?
A: No. A.R.S. § 16-537 carries duties imposed on election officers for regular elections over to special elections. Tucson Charter XIV § 18 also requires special elections to follow the general-election manner. The recount question therefore turns on what the recount statute itself covers, not on the regular-versus-special distinction.

Q: Can a city create its own recount rule?
A: That is a charter and ordinance question the opinion does not directly answer. A city operating under a charter (Tucson is one) can adopt election procedures for itself, subject to the Election Code's reach into city elections. A city attorney would need to look at the charter, the city election ordinance, and the Code provisions that apply to municipal elections by their own terms.

Background and statutory framework

Title 16, Chapter 4, Article 12 governs Arizona election recounts. The architecture is clean: section 16-661 sets the trigger, section 16-662 sets who certifies and where, section 16-663 covers the recount procedures, sections 16-664 to 16-665 handle results, and section 16-666 allocates costs. The whole article treats statewide and federal elections one way and county or local elections another way. Referred measures sit in the statewide bucket throughout.

The narrow textual question is whether the word "or" in § 16-661(A) ("between the two candidates ... or between the number of votes cast for and against initiated or referred measures") sweeps in city referrals. The AG's answer is grounded in the Molera v. Hobbs (2020) instruction to read statutes in context, the Luviano (2023) ordinary-meaning rule, and the Mussi v. Hobbs (2023) and Fink (2023) admonitions against reading provisions into a statute that the legislature did not write.

Citations and references

Statutes:
- A.R.S. §§ 16-537; 16-661 to 16-667; 16-662; 16-665; 16-666

Cases:
- State v. Luviano, 255 Ariz. 225, 530 P.3d 388 (2023)
- Molera v. Hobbs, 250 Ariz. 13 (2020)
- Mussi v. Hobbs, 255 Ariz. 395, 532 P.3d 1131 (2023)
- State v. Fink ex rel. County of Santa Cruz, 539 P.3d 543 (Ariz. Ct. App. 2023)

Other:
- City of Tucson Resolution No. 23697 (canvass)
- S.B. 1244, Senate Fact Sheet as Enacted (May 10, 2004)
- Tucson City Charter XIV § 18

Source

• Landing page: https://www.azag.gov/opinions/i24-001-r23-020
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I24-001.pdf

Original opinion text

To:

Adrian Fontes
Secretary of State
1700 West Washington, 7th Floor
Phoenix, Arizona 85007

Questions Presented

Whether the City of Tucson is required to recount its November 7, 2023 election on Proposition 413 under A.R.S. § 16-661, the state's automatic recount statute, because of the narrow margin of votes by which Proposition 413 passed.

Summary Answer

A.R.S. § 16-661's reference to automatic recounts of "referred measures" only encompasses statewide ballot measures and does not include municipal measures like Proposition 413. As such, no recount is required.

Background

On November 7, 2023, the City of Tucson held a special election on Proposition 413, a ballot measure referred to Tucson voters by the Mayor and City Council to amend the city charter to increase the Mayor's and councilmembers' salaries. City voters approved Proposition 413 by a margin of 289 votes out of 94,014 total votes cast. That margin represents less than half of one percent of all votes cast.

On November 21, 2023, the City of Tucson approved the canvass of Proposition 413. See City of Tucson Resolution No. 23697. Because of the narrow margin, the City also approved a motion directing the City Clerk and City Attorney to notify the Secretary of State and Attorney General of the Proposition 413 vote margin and canvass and to seek advice regarding the applicability of the automatic recount statute to the Proposition 413 election.

Analysis

Title 16, Chapter 4, Article 12 governs recounts of Arizona elections. See A.R.S. §§ 16-661-67. Specifically, A.R.S. § 16-661(A) provides:

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.

Subsection B excludes certain elections from an automatic recount, namely, "elections for precinct committeemen, school district governing boards, community college district governing boards, fire district boards or fire district chiefs or secretary-treasurers or boards of other special districts." A.R.S. § 16-661(B).

To determine whether the recount statutes apply to a municipal measure such as Proposition 413, we examine the meaning of "referred measures" in § 16-661(A) and assign the statutory text its ordinary meaning. State v. Luviano, 255 Ariz. 225, 530 P.3d 388, 391 ¶ 10 (2023). Viewed in isolation, "referred measures" would appear to encompass all potential referred ballot measures, including statewide, county, and municipal referred measures, because there is no indication in § 16-661(A) itself that "referred measures" should be limited to certain levels of government. Under that view, § 16-661(A) would apply to a municipal referred measure such as Proposition 413.

However, the meaning of statutory text must be assessed "in view of the entire text, considering the context and related statutes on the same subject" and text should not be read in isolation. See Molera v. Hobbs, 250 Ariz. 13, 24 ¶ 34 (2020) (citation omitted). The statutes that follow § 16-661 make clear that the term "initiated or referred measures" in the recount statutes refer only to statewide initiatives or measures.

First, A.R.S. § 16-662 governs which official should certify the facts requiring a recount and in which court that certification should be filed. "[I]n the case of an office to be filled by electors of the entire state, a congressional district, a legislative district or a subdivision of the state greater than a county, initiated or referred measures or proposals to amend the constitution," the secretary of state shall certify the facts requiring a recount, and he shall do so in Maricopa County Superior Court. A.R.S. § 16-662. By contrast, "[i]n the case of an office to be filled by the electors of a county or subdivision of a county or precinct," the county board of supervisors shall certify the facts. Similarly, "in the case of an office to be filled by the electors of a city or town, the city or town council of that city or town shall certify the facts requiring a recount." In other words, initiated or referred measures are included in § 16-662 only where the secretary of state is the filing officer.

This statute thus breaks elections down into two categories: (1) elections at greater than the county level, and (2) elections at the county level or lower. Relevant here, § 16-662 places "referred measures" in the former category, of elections at greater than the county level. That would make little sense if "referred measures" included measures voted on only by the voters of a single county, city, or town.

Second, § 16-665 categorizes elections in a distinct but related way that similarly indicates that referred measures, in this context, means statewide measures. The certified copy of a recount order shall be delivered to the Governor with respect to "an initiative or referendum measure, or proposal to amend the Constitution of Arizona," and the Governor shall issue a proclamation. A.R.S. § 16-665(B). By contrast, the only elections for which local officials receive the certificate are elections for local offices; referred measures are not included in this category of elections for which certification is a local matter.

Third, A.R.S. § 16-666 allocates the expenses of recounts in a manner that, once again, indicates that referred measures in the recount statutes are statewide affairs. The expenses of a recount "if for an office to be filled by state electors, or if upon an initiative or referendum measure, or proposal to amend the constitution, shall be a state charge," while local-office recount expenses fall on the relevant county or city. A.R.S. § 16-666. It would make little sense for the State to be responsible for the cost of recounts for local referenda or initiatives but not for the cost of recounts for local offices.

Legislative history also provides some helpful context. In 2004, the Legislature passed S.B. 1244, amending the recount statutes to clarify that they applied to municipal candidate elections after a dispute about whether the then-operative version of the statute requiring recounts for county officer elections also encompassed city and town officer elections. S.B. 1244 amended § 16-661(6) to explicitly confirm that city and town officer elections were subject to recount if there was a ten-vote margin. These amendments all were made with respect only to elections to "an office", the type of election underlying the dispute which prompted the amendment.

Although the Legislature could have also amended the recount provisions (in 2004 or at any other time) to clarify that the statutes apply to all municipal elections, it did not do so. In light of this legislative silence, applying § 16-661 to municipal ballot measures would inappropriately "read into a statute something which is not within the manifest intention of the [L]egislature as indicated by the statute itself." Mussi v. Hobbs, 255 Ariz. 395, 532 P.3d 1131, 1138 ¶ 34 (2023); see also State v. Fink in & for Cnty. of Santa Cruz, 539 P.3d 543, 546 ¶ 9 (Ariz. Ct. App. Nov. 7, 2023).

Finally, we note that the Legislature's decision to not explicitly list municipal ballot measures in § 16-661(B) as a type of election not subject to the recount provisions does not counsel a different result. Because the rest of the recount article indicates that municipal ballot measures are not included under § 16-661(A), there is no reason to exclude them under § 16-661(B).

Conclusion

Read in the context of the recount article, the term "referred measures" in § 16-661 encompasses only statewide referred measures, not municipal measures. If the legislature had intended to expand the recount article to encompass municipal elections more broadly, as opposed to just municipal officer elections, it could have said so. It did not. Therefore, the City of Tucson is not required to recount the election for Proposition 413.

Kris Mayes
Attorney General

[1] Proposition 413 was sent to voters in a special election. Section 16-661(A) states that it only applies to primary and general elections; however, because A.R.S. § 16-537 clarifies that "[t]he powers and duties conferred or imposed by law upon any public officer with respect to regular elections are conferred and imposed upon such officers with respect to special elections," § 16-661(A) also applies to special elections. See also Tucson City Charter XIV § 18.