City Council appeals 9th Circuit election ruling
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City Council appeals 9th Circuit election ruling


The City Council voted Tuesday to appeal last week's ruling of a 9th Circuit panel that found Tucson's election system unconstitutional. The Council also discussed moving ahead with putting changes to elections on the ballot for voter approval.

The Council voted, with members Paul Cunningham and Shirley Scott recusing themselves from the discussion and vote, to ask for an en banc re-hearing before the entire 11-member federal appeals court.

"We have a legal obligation to at least attempt to defend the Charter," Mayor Jonathan Rothschild said, noting that voters have three times approved Tucson's system of ward-only primaries and a city-wide general election for the Council.

The Council said they would ask the city's citizens committee on the Charter to discuss possible changes to the elections system to put to voters next year. The mayor and Councilwoman Regina Romero said they would be open to putting several options on the ballot.

The Council also voted 7-0 to accept the canvass of the election returns, a move that City Attorney Mike Rankin described as a "ministerial obligation" under Arizona election laws.

In a 2-1 decision released last Tuesday, the appeals court judges reversed an earlier district court ruling that Tucson's elections were constitutional, effectively sending it back to U.S. District Court Judge Cindy Jorgenson in Tucson to determine how to proceed with changes to the elections system. The judges did not set out a remedy for what they said was the city's violation of the one person, one vote protection of the 14th Amendment, leaving it up to the locals to work out a solution.

Even though they lost the Tucson-wide vote, two of the three GOP City Council candidates have filed a lawsuit asking a judge to overturn the election and declare them the winners. Kelly Lawton and Margaret Burkholder won their East Side wards, but lost in landslides in the total vote count.

A hearing has not yet been held in the case.

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The relief demanded in the suit would have the court declare that only votes from ward residents should be counted in Wards 2 and 4, and that Lawton and Burkholder should be "certified as having the highest number of legal votes" for those Council seats.

Related: What the Devil won't tell you — Despite GOP lawsuit, judge's ruling seems to favor city-wide elections

The lawsuit filed on behalf of the GOP candidates claims that because Lawton led incumbent Councilman Paul Cunningham 11,513-10,179 in Ward 2, and Burkholder led Councilwoman Shirley Scott 9,143-6,533 for Scott in Ward 4, that the two should be declared the winners of the election. Failing that, there should be special elections held in those two wards, the suit said.

In the city-wide count, both Democrats led by thousands of votes: Cunningham won by more than 12,000 total votes, while Scott had a 9,200-vote margin.

The suit was filed by attorney Kory Langhofer, who represented the group of Republicans who backed the suit against Tucson's elections set-up that led to the 9th Circuit decision.

Langhofer didn't join the pair outside City Hall at a press conference Friday, but he told the 9th Circuit panel during oral arguments in August that "it would be too disruptive to try to undo the election that is already ongoing," as early voting in the primary had begun at that point.

Instead, the Republicans' attorney told the judges, "Our position on remedy at this point is that we should address that on remand. I think that it's complicated and hasn't been fully briefed to this court."

"If we don't do something, we will know nothing... time is of the essence," Lawton said, explaining why the two candidates brought the suit even though the federal court in Tucson has not yet considered remedies based on the appeals court decision.

"Maybe this case will help bring a quicker solution," he said, saying that he and Burkholder were not "sore losers" in the election.

Both of the candidates, along with Pima County GOP Chairman Bill Beard, repeatedly touched on the 9th Circuit's finding that Tucson's election system is unconstitutional, and said that the outcome of the election should be based on the basis of the ward results.

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"If (the Democrats) are certified and sworn into office in December, everything they do will be called into question because the means in which they were elected are unconstitutional," Beard said.

Although Todd Clodfelter, a member of the county GOP Executive Committee, said that the case was "not a partisan issue," Burkholder told reporters that "this has to be as much political as it is legal," asking voters to pressure political leaders about the election.

Likewise, Beard chuckled when pressed on why the Republicans weren't suing over all of the election results. "You're asking me as a political leader if I shouldn't do something political?," he rhetorically asked.

Although the Republicans are pushing for the Superior Court to declare them the winners based on the vote in their individual wards, the support for doing so is lacking in the 9th Circuit's decision.

"Given the city’s concession that each council member represents all of Tucson, it’s clear that the representational nexus runs between the city and the council member, not between the ward and the council member," Judge Kozinski wrote for the majority in the split decision.

"We cannot endorse an election system that encourages at-large representatives to prioritize kissing babies and currying favor in their home wards over the interests of their constituents who happen to live in other parts of the city," he wrote in the opinion, joined by Lawrence L. Piersol, a senior district judge from South Dakota sitting on the case.

Circuit Judge Richard Tallman strongly dissented.

"There are certain times when a federal court may tell a municipality how to run its local elections. This is not one of them," he wrote, noting that the primary election nominates candidates to represent parties.

"The Supreme Court has never before held that the same geographical unit must apply to both the primary and general elections," the dissenting judge wrote.

"The Constitution does not require this sort of judicial highjacking of state power," he wrote.

A group of Republicans, including GOP national committeeman Bruce Ash and failed 2007 Council candidate Lori Oien, filed suit last spring in an attempt to overturn the process.

While the GOP has long complained that the electoral system in the city means their candidates have less of a chance of winning, previous suits to change Tucson's setup have failed in the courts. Voters have previously chosen to keep the current system, in place since the city's first Charter was put in place in 1929.

In the most recent election, three Republican challengers to Democratic members of the Council were handily defeated by the incumbents in a city-wide vote, even though the garnered more votes in their wards. The GOP didn't run a mayoral candidate.

A committee that recommended a series of changes to the Charter — several of which were referred to the voters and approved last week — split on changing the city's election system, prompting the latest lawsuit.

Earlier this year, Judge Jorgenson ruled against the Republican group, but they appealed to the 9th Circuit.

Republicans have contended that the city's process of nominating City Council candidates in ward primaries and electing them in a city-wide general election puts their party at a disadvantage. Ironically, the last time a Republican was elected, Steve Kozachik (who later changed parties) lost his Midtown ward but was carried into office by voters in other wards.

In their last races, Cunningham and Scott both trailed in their wards.

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Republican novice Jennifer Rawson led Cunningham, running in 2011 after having been appointed to fill a Ward 2 seat left vacant by Rodney Glassman's resigation, by 11,478-10,212 in the Northeast Side. But Cunningham had a nearly 12,000-vote margin overall to win the seat outright.

In her 2011 race, Scott trailed Republican Tyler Vogt by 11,190-6,516 in Ward 4, but held a 2,000-vote margin across the city to hold her seat.

The GOP has pushed to either have Council members elected by ward-only elections (which they've said is their preference), or have primary ballots cast by all city voters.

But city officials said it was the voters who put the system in place and that multiple proposals to change the system – to either a purely ward-based council or a purely at-large body – have been voted down.

“Over the last five years, we’ve been in court a lot … defending the rights of the city’s voters,” City Attorney Mike Rankin said. “We were defending what the locals have approved.”

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Dylan Smith/TucsonSentinel.com

The City Council discusses appealing the 9th Circuit ruling on Tuesday.