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CHAPTER 5
Filling a Council Vacancy in a General Law City/Town
If a vacancy occurs less than 30 days before the nomination deadline for the next regularly scheduled candidate election (the nomination deadline is 120 days prior to the next regular candidate election, A.R.S. § 16-311.), the council must appoint a qualified replacement and the appointee will serve the entire length of the unexpired term, A.R.S. § 9-235.
If a vacancy occurs more than 30 days before the nomination deadline for the next regularly scheduled candidate election (the nomination deadline is 120 days prior to the election for that vacant seat, A.R.S. § 16-311), the council must appoint a qualified replacement and the appointee will serve until the next regularly scheduled council election, (A.R.S. § 9-235. This applies only if the council has 4-year terms and it does not affect charter cities). In such a case, the remaining 2 years of the term will be placed on the ballot. Clerks will need to prepare a separate Nomination Petition form for this seat (separate from the standard form for the 4-year terms), (Memorandum from Joni Hoffman, Gen. Couns., League of Ariz. Cities & Towns, to Ken Strobeck, Exec. Dir., League of Ariz. Cities & Towns (Apr. 27, 2012) (explaining A.R.S § 9-235 and providing an example of application).). The 2-year term must be clearly marked at the top of the petition form (to distinguish it from the petitions for 4-year terms). There also must be a separate section on the ballot itself for the 2-year term, which lists those candidates who filed Nomination Petitions for the 2-year term.
It is critical that you discuss vacancies with your attorneys. (Hendrix v. Town of Gilbert, et al., CV 2020-009892 (Maricopa Cnty. Sup. Ct., Sept. 11, 2020) appeal denied (holding that a candidate who won at the primary election to fill the remainder of a 2-year term because of a vacancy must be seated on the general election date and not the January date specified in the town code establishing council member terms).)
If a city or town ordinance provides that a candidate who receives a majority of all votes cast at a primary election is declared elected for a particular office, A.R.S. 9-821.01(D) may apply if the office is being held by an appointee at the time of the primary election. If the person holding the office at the time of the primary election is an appointee, the following apply:
- A candidate for a partial term who receives a majority of all votes cast at the primary election both: (a) shall be declared elected after the canvass and certification of the results of that primary election and on taking the oath of office; and (b) shall be seated in accordance with subsection e of this section.
- A candidate for a new term who receives a majority of all votes cast at the primary election both: (a) shall be declared elected to the new term of office, effective after the canvass and certification of the results of that primary election and on taking the oath of office; and (b) may be seated to complete the remainder of existing term in accordance with subsection e of this section.
If more than one candidate receives a majority of all votes cast at the primary for an office that is currently being served by an appointee, the order of seating the candidates shall be determined by the highest number of votes.
Filling a Vacancy After a Primary Election
If a candidate for a local nonpartisan election whose name is scheduled to appear on the general election ballot dies, withdraws or is disqualified, no other name can be substituted on the ballot, (Katan v. City of Prescott, 233 Ariz. 179 (Ariz. Ct. App. 2009); see also Memo. from J. LaMar Shelly, Gen. Couns., League of Ariz. Cities & Towns (Oct. 19, 1987); see also Memo. from J. LaMar Shelley, Gen. Couns., League of Ariz. Cities & Towns (May 18, 1993)., (A.R.S. § 16-343(F).), (A.R.S. § 16-343(G).). If the ballot is already printed, it is not necessary to reprint the ballot.
If such a vacancy occurs, the city or town clerk must notify the appropriate county elections inspector, (A.R.S. § 16-343(G).).
The city or town may be subject to specific requirements related to vacancies under its local code and the intergovernmental agreement with the county for election services. The inspectors will post the notice of vacancy in the same manner as posting official write-in candidates, (A.R.S. § 16-343(G).). In the case of a withdrawal of a candidate that occurs after the printing of official ballots, the inspectors will post the notice of withdrawal in a conspicuous location at each polling place and all early voting locations, (A.R.S. § 16-343(G).). The notice of withdrawal will also be included in the early ballot instructions, (A.R.S. § 16-343(G).).
It is good practice to require a candidate withdrawing from the election to file a written notice with the clerk indicating the withdrawal. Sample Candidate Statement of Voluntary Withdrawal.
We are pleased to present the League Municipal Election Manual to serve as a resource for municipal clerks. The electronic format allows for quicker updates and reduces the possibility of conflicting print versions.
*The Manual is intended for League members only.
**Nothing in this Manual supersedes any law, the Secretary of State’s Elections Procedure Manual, local requirements, or the agreement with the county for election administration services.
**The Manual does not, and is not intended to, constitute legal advice. As laws change and new court decisions are issued, this Manual may contain errors and outdated information. Neither the League nor the League’s General Counsel provides legal advice or legal interpretations unless specifically requested by your city/town attorney.