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9th Circuit: Tucson's 'unusual' elections are unconstitutional

Sending the case back to a lower court, a panel of federal judges has ruled that Tucson's "odd" system of electing its City Council violates the principle of "one person, one vote." The 9th Circuit released the 2-1 decision Tuesday.

Writing for the majority, Circuit Judge Alex Kozinski said that Tucson's holding ward-only primaries and city-wide general elections for Council members was an "unusual system."

"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," wrote Kozinski 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.

Giving the city a route for a possible appeal, either for a re-hearing by the full 9th Circuit or to the U.S. Supreme Court, 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.

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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.

Ash called the decision "a great victory for all Tucsonans."

"Tucson must follow the U.S. Constitution and provide due process for all voters," he posted on Facebook.

"It's time for the minority voice to finally have a say in the future of Tucson," said GOP county chair Bill Beard. "Ward-only elections are the best way to truly represent that voice."

Tuesday’s ruling is not likely to affect last week’s vote, in which four Democrats named as defendants in the case were re-elected – Mayor Jonathan Rothschild and Councilmembers Regina Romero, Paul Cunningham and Shirley Scott.

Ash said the decision "may very well lead to a change ultimately in Tucson elections" but acknowledged that it likely "won’t have an impact on last week’s elections."

"We’re still talking with our lawyers," said Ash.

City Attorney Mike Rankin said he is scheduled to discuss the case with the mayor and other city officials at a Council meeting next week.

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 last week's 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.

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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, U.S. District Judge Cindy 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.

The GOP has pushed to either have Council members elected by ward-only elections, or have primary ballots cast by all city voters.

"The city has broad power to establish the procedure and provide conditions for the nomination and election process for city offices," Jorgenson, who was named to the bench in 2001 by President George W. Bush, wrote in her May decision. "The procedure established by the Tucson City Charter does not employ a system in which districts of unequal population could result in unequal representation and does not involve unequal weighting of votes."

Kozinski overturned that ruling, sending the case back to Jorgenson to be resolved:

"The hybrid system makes the tenure of each at-large council member largely dependent on the preferences of voters of his home ward; without their support, a council member could not be nominated (or re-nominated) in the first place. Given that reality, each council member will be disproportionately responsive to voters from his home ward, especially those of his own party. The city claims that this is a redeeming benefit of its hybrid system. The exact opposite is true. The practical effect of the Tucson system is to give some of a representative’s constituents — those in his home ward — a vote of disproportionate weight."

The decision didn't mandate a ward-only process, nor did it dictate that primaries should be run city-wide. Kozinski's ruling said that both elections need to be carried out in the same manner, leaving it to Jorgenson to work out the details.

Kozinski said that in a state that generally votes Republican, Tucson’s process disadvantages GOP candidates in a city that “generally votes Democratic.”

“The Democratic nominee from each ward will likely win the general election regardless of whether the ward from which he was nominated is principally Republican or Democratic,” Kozinski wrote. “In most cases, then, the Democratic ward primary is the only election that matters.”

In Tallman's dissent, he wrote:

The majority finds that “the practical effect of the Tucson system is to give some of a representative’s constituents — those in his home ward — a vote of disproportionate weight.” Not so. While a City Council member, once elected, is likely to be alert to the particular needs of his home ward, every single vote in Tucson’s elections are weighted the same. In fact, the hybrid system’s ability to foster attentiveness to local needs is precisely the reason it was created in the first place: the ward-based primary helps to ensure that each ward has a nominee for City Council who is aware of that ward’s particular needs.

"Unlike the majority’s hypothetical state election laws, Tucson’s hybrid system gives each citizen the right to vote in her respective ward primary, and Tucson has articulated an 'important regulatory interest' to support its hybrid system," he wrote in the dissenting opinion.

The appeals court decision reverses a district court ruling that had upheld the city’s election system in May.

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,” Rankin said. “We were defending what the locals have approved.”

But Arizona Republican Party Chairman Robert Graham hailed the appeals court’s decision in a statement Tuesday in which he called the decades-old format an “outrageous election scheme.”

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“The court acknowledged that Arizona voters generally choose Republicans, and that Tucson Democrats gave themselves an ‘enormous advantage’ by carefully excluding voters from selecting the candidate of their choice,” Graham said in the statement Tuesday. “This is a big win for the voters.”

But Tallman said in his dissent that Tucson voters have already spoken.

“Tucson is now forced to choose between an entirely at-large method of election or a ward-only method of election despite the fact that a majority of Tucson citizens have twice before voted against adopting these election systems,” he wrote.

Cronkite News reporter Tom Blanton contributed to this report.

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