A 'no' vote on Tucson's Prop. 412 would leave all parties in the dark

What if Tucson holds an election and no one votes in it?

Tucsonans will soon start receiving ballots in the mail with a single question on them. Proposition 412 seeks permission from the electorate to renew the city of Tucson's franchise agreement with Tucson Electric Power.

Or as the Pima County Republican Party describes it: "There will be a special election May 16, 2023, where the voters will decide if they want to raise their Tucson Electric Power rates to remove some poles and somehow reduce climate change by throwing money at Tucson’s Climate Action Plan."

I can actually appreciate the quality of the snark there; that's a wildly dismissive description of an agreement that keeps Tucson's lights on and a/c blowing.

TEP's infrastructure runs over and is buried under the city's rights of way. The company needs around-the-clock access to property to maintain the electrical grid's reliability. A franchise agreement gives the private utility the access it needs in return for a small fee. 

Everyone's got them. TEP, Southwest Gas and Cox Communications all sport one and each required a public vote for approval.

These agreements come up every now and again. In the 1980s, the Tucson City Council used a franchise agreement with Cox Communication to force the cable company to fund public access channels. It was like YouTube for cable. Anyone could become a content provider and use a cable channel to pipe their programming across town, free of charge or censorship.

One of TV hosts went by the name Y'shua 666 Israel. He was the local campus antichrist. A stink ensued involving Christians. He basked in the attention, naturally. Hundreds of other shows came and went, mostly less heralded by the public.

Anyway, the Arizona Legislature has since limited what the city can demand in franchise agreements to what is required for the company to access the necessary infrastructure.

"A franchise is an (agreement) for the use of city rights of way by a utility," City Attorney Mike Rankin emphasized in an email to yours truly. "It is not a vehicle for regulating the operations of the utility, or for regulating how they generate the power that is distributed through our community."

Local governments can't use these agreement to micromanage a private company.

Pima County GOP Chairman Dave Smith's lukewarm dis of Prop. 412 is important. Republicans like him and state Sen. Justine Wadsack are running social media opposition to the measure. These elections tend to have such low turnout because the issue is as sexy as a utility franchise agreement sounds. If the voting public ignores their ballots and a motivated opposition organizes against it, the results might get interesting. 

Probably not, but it did get me to thinking: What if this thing fails? Are we all in the dark?

Physically? No. Existentially? Yes. These elections always pass so no there's not much to go on if one fails other than shadowy uncertainty.

Reliability & certainty

The franchise agreement would impose a 2.25 percent fee to raise money for low income electrical assistance, burying lines underground and the rest will go to helping pay for the city's climate action plan. Another 0.75 percent fee would go to putting a specific power transmission line underground with the rest going to climate action.

A key piece of TEP's near-term planning is to lay a transmission line connecting a substation at 36th Street and Ajo Way to another at West Grant Road and Interstate 10. This would help TEP move power around as needed to improve system-wide reliability, the company says.

That's a 10-figure investment that improves reliability because it gives a big jolt to the Midtown grid.

"If we don’t make these improvements, it will have an effect on reliability," said TEP spokesman Joe Barrios. "Aside from public safety that’s our paramount concern."

TEP has agreed to put some of stretches of that DeMoss-Petrie Line underground to satisfy neighbors concerns. It's pricier to do it that way. 

This line is a big part of TEP's near future.

However, there's a bigger issue working here. The company needs to know they can get to their stuff to do this kind of planning and long-term, capital heavy investment. Power systems aren't cheap.

The utility uses public rights of way because the option is to run lines across private property and that would force the company to negotiate access deals with each and every affected property owner. The system would be unworkable.

Even if the state Legislature were to directly give TEP the authority to condemn land, TEP would still have to compensate property owners. Otherwise, it's a "taking" without compensation and that sort of thing is banned under the U.S. Constitution.

So the company only has to negotiate one deal for access to all the lines that transmit energy to customers.

A 25-year deal provides TEP the long-term certainty it needs to make investments required to maintain the whole system and keep electricity reliable.

Barrios and I talked for a bit and he got me to geek out some on just how a grid stays nice and robust.

Think of a power grid like a road system moving cars around. Power gets transmitted at super-high voltage and then has to be stepped down. Drivers haul ass on Interstate 10 over long distances and then have to slow down on off ramps to go even slower on arterials like Speedway and Ajo Way. Cars slow down further on neighborhood streets.

Say there's roadwork on 22nd and Country Club. Drivers have to be rerouted to reach their destination. Same with a power grid. 

Electricity is routed and rerouted to fit needs depending on circumstances.

Roads develop potholes, which require filling. Electrical service equipment gets old and needs to be replaced.

Electrical grids, like traffic flows, require engineering. TEP has to run a complex system, that requires detailed planning and specific execution.

That kind of execution is hard to pull off if the company doesn't have permanent and around-the-clock access to its equipment.

Knowing in 2023 that they can still fix their gear in 2027 is vital for that planning.

Ahhhh. I can here you say "But c'mon Blake, they'd still have access to their equipment. Right?"

Well, maybe. One would assume. 

Look, the existing agreement doesn't expire until 2026. So there's time for another election. It's not like hehehe we'd just keep rejecting it? Put a pin in that.

I never thought we'd be passing laws to imprison drag queens or secretary of state candidates run on throwing out millions of ballots turned in by voters who failed to vote Republican.

These are weird times.

'Not entirely clear'

I would feel a lot better if someone in a position of wisdom could ease my concerns.

I asked City Attorney Rankin to explain what happens if Prop. 412 fails. 

He pointed out that the city put some leeway into the schedule because the current deal doesn't expire until 2026. Another election can be scheduled. 

"Anticipating (the) next question – OK, if voters still reject any new proposal during that extension year, what then? Well, it really isn’t clear." 

Wonderful.

He continued: "TEP’s infrastructure is already in our rights of way, and nobody else is in a position to provide electricity distribution throughout the city, so it is not realistic to think that the city would take legal action to eject TEP from our rights of way."

These are two really important points he's making. Technically, the agreement is with TEP but it could grant the franchise to any power provider. But that's like saying someone else can just move into your house. 

Tucson Electric built the power grid for Tucson. That represents a substantive financial investment TEP would not easily surrender to another company. 

The idea of "sunk costs" came up during the 1990s. The state flirted with providing competition among utility providers. 

"Fine," the Salt River Project said to would-be competitors. "Anyone who wants to come in is welcome. But they can build their own dang dams."

The city could also give TEP a permit to access the rights of way as needed but that could be considered a de-facto franchise agreement, which would be illegal if not voter approved.

The possible legal fight makes my head hurt.

As to the first point, voters can get snippy and irrational. 

I've covered Arizona politics for – ahem – at least a year and a half. On balance,  I've been impressed by how much voters get right and aren't lured by easy soundbites on some very complicated issues. 

Anyone remember when Tucson's electorate kept rejecting water from the Central Arizona Project? There was a possibility that the city could lose its allotment. 

There's the curious situation of rejected land swaps. The U.S. Forest Service and Arizona State Land Trust many times tried to gain the authority to exchange lands to put an end to checker boarding parcels that makes proper land management a lot harder because the Forest Service and Land Department have vastly different missions. Voters didn't care. They just voted no.

So Tucson and TEP are sans Plan B if voters get a wild hair and start rejecting these franchise agreements like so much CAP water.

Democracy and doomsday

State law requires franchise agreements be approved by voters but is silent on what happens if the voters reject them because that's how Arizona's Legislature works. It would rather legislate drag shows than provide coherence to the laws that matter.

If the state is going to require an election, then it's incumbent on the state to write into law a path forward if the vote fails. 

Otherwise, why give voters the power to do nothing but create chaos?

Franchise elections have a certain debt ceiling quality to them. It's the power to push a vote over an edge leading to dire consequences nihilists kinda dig.

We elect government leaders to approve complicated, boring and necessary deals like franchise agreements. Leave the issue in their hands. If they do it wrong, vote them out. 

Stop putting doomsday up for a vote. Someday the ayes may have it.