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Republicans sue to be declared Council winners

Claim that only ward votes should count based on 9th Circuit decision

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.

The suit was spurred by a decision by a three-judge panel of the 9th Circuit Court of Appeals, released a week after the election, that held that Tucson's hybrid elections system — in which Council candidates are nominated by ward in partisan primaries and then voted on city-wide in a general election — was unconstitutional.

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."

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.

The hurriedly prepared legal filing — at one point the suit says the GOP's Burkholder was declared the winner of the Democratic primary — asks a Pima County Superior Court judge to limit the vote count for the councilmembers from Wards 2 and 4 to only voters in each ward, to set aside any certifications of the vote that declared Cunningham and Scott the winners, and to declare that Lawton and Burkholder should be certified as having the highest vote tallies in their wards.

A third Republican, Bill Hunt, was swamped in the Ward 1 race in both the ward and city-wide counts as Councilwoman Regina Romero coasted to victory. He didn't join Lawton and Burkholder in the suit.

At a press conference Friday afternoon, the two candidates were unclear about what their filing was asking for, and how the 9th Circuit case affected the election.

Burkholder said "no" when asked if the suit was an attempt to have the pair declared winners of their races, and said that hearings in the 9th Circuit case "were held before the primaries had happened."

"We're asking for a stay," said Lawton. "We're not going to make an official announcement in that regard," he said of asking to be sworn in as councilmembers.

"Some of the legal questions I'll leave to our counsel," Burkholder said.

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

Attorney Langhofer didn't join the pair outside City Hall, 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."

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In their 2-1 decision released Tuesday, the appeals court judges reversed the case, 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.

"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.

"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.

The city is likely to appeal the appeal court's decision, either with a re-hearing before the full 9th Circuit or to the U.S. Supreme Court.

The City Council is set to discuss the case, and slated to certify the vote count, at a meeting Tuesday. The Pima County Board of Supervisors certified the results last week.

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.

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"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.

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.

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“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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1 comment on this story

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Nov 16, 2015, 7:18 pm
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I think the city should refrain from filing an appeal and instead spend the money more prudently in commencing a wide open conversation aimed at changing the charter to enact an election system with which everyone can live relatively contentedly.

Judge Kozinski has pointed in one direction with reasoning which I find decidedly unpersuasive. His argument that Council members represent the whole city and therefore might best be elected by the whole electorate is counterindicated by the reality that Council members serve as the representatives and in a sense the ombudsmen of portions of the city — wards — in which they reside and maintain offices and staffs. Of course they work together on behalf of the entire city but each has special concern for his or her ward. Kozinski’s logic would seem to demand that our legislators be elected statewide rather than by district, since as a body they represent the state. He seems to miss the distinction between the responsibility of the individual member of the Council and the responsibility of the Mayor and Council as a whole. Every day each Council member lives that distinction and it’s reasonable that they own it, even to the point of admitting that they ought to be able to win an election limited to their own ward.

Judge Tallman appears to think the city conducts two separate elections every two years and that there is no need for them to have identical electorates. He seems to recognize an even greater separation than does the charter between the primary and general elections. While it might be encouraging to any who would resist change to think his view would prevail in an appeal, I’d suggest you read his dissent carefully. I don’t think you’ll find it persuasive.

For myself, I find few if any arguments by appellants, respondents or judges compelling. Republicans in Tucson and Pima County are not a protected minority. Council members are not primarily representative of the whole city. The electorate of Ward One is not deprived of a vote because it can only vote in a primary for its representative and cannot vote in the Ward Two primary. The general election votes of Republicans in Ward Four are diluted because voters in the rest of the city are able to vote for Ward Four’s Council member.

Of the options open to us now, I believe appeal to be the worst. Next would be a decision taken in council to offer the electorate a charter change to citywide primary elections. This would be seen as an effort to retain the status quo, in which it is difficult — hardly impossible — for the minority party to win any council seats. Better would be an open dialogue, hopefully leading to consensus on a charter change to be presented to the voters at the next feasible opportunity. I’ve written ‘a charter change’ because the notion of placing two or more alternatives on the ballot would probably be confusing and perhaps lead to an inconclusive result.

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Dylan Smith/TucsonSentinel.com

Republican candidates Kelly Lawton and Margaret Burkholder announced Friday that they were challenging the results of the recent City Council election.

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