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Judge nixes Republican case to overturn City Council election

A Superior Court judge ruled Monday against a request by a pair of Republican candidates who sought to be declared the winners of last month's Tucson election. Kelly Lawton and Margaret Burkholder won their East Side wards, but lost in landslides in the total vote count.

An attorney for the two made their case before Judge Gus Aragon last week, and the judge ruled against the Republicans on Monday.

Aragon said that the Republicans shouldn't have waited until after the election was completed to file a complaint, and that a 9th Circuit Court of Appeals case over Tucson's election system has not reached a conclusion.

The judge also noted that Lawton and Burkholder used public matching funds in their campaigns, and considered that and the delay in filing an election complaint "in the context of fairness and equity" in dismissing their claims.

Burkholder and Lawton said Monday that they were considering an appeal.

Incumbents Paul Cunningham and Shirley Scott, both Democratic councilmembers who were targeted by the GOP lawsuit, were sworn into office to begin their new terms Monday morning. Councilwoman Regina Romero and Mayor Jonathan Rothschild, who were also re-elected in November, were also sworn in for their new terms. Scott is now the longest serving member of the Tucson City Council in the city's history as she begins her sixth stint on the dais.

Cunningham and Scott said there were ready to "get to work" after their re-elections.

Even though they lost the Tucson-wide vote, two of the three GOP Council candidates filed the lawsuit, asking Aragon to overturn the election and declare them the winners.

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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 city is asking for a re-hearing before the entire 11-member 9th Circuit.

The lawsuit filed on behalf of the GOP candidates claimed that because Lawton led Cunningham 11,513-10,179 in Ward 2, and Burkholder led 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.

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

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 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.

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.

An attorney for the city, Dennis McLaughlin, told the court last week that the 9th Circuit opinion wasn't released until after votes had been cast, is being appealed, and did not include an order directing how Tucson should modify its elections.

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Langhofer 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."

Last week, Longhofer told the judge that the two Republicans should either be declared the winners, or that the city should hold new elections in those East Side wards.

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.

Suit filed too late

Aragon wrote that he based his decision on the legal concept of "laches," which holds that there is an unreasonable delay in pursuing a claim if that delay prejudices a case against the opposing party.

"Based upon the facts presented, the Court finds that Plaintiffs' claims are precluded by laches," he wrote. "Plaintiffs waited until after the election to file this action. This action challenges the election process. It should have been pursued before the election, not after."

From the ruling:

Both Plaintiffs and Defendants have relied upon and cited many cases. Both sides agree that McComb vs. Superior Court, 189 ARIZ 518 (1997) is instructive. The Court has reviewed McComb, in which the Court acknowledged that laches may apply to an election contest under appropriate circumstances. This Court finds that those circumstances exist here. Defendants Cunningham and Scott have shown the necessary elements for the application of laches. They have shown reliance upon the hybrid system under which they campaigned. The Court finds as well that the City of Tucson relied upon existing law at time of the challenged election. The voting public presumably similarly relied on the fact that they were voting under the hybrid system. The Court further finds that Plaintiffs' delay in filing this action after the general election was unreasonable. This delay in light of Plaintiffs' knowledge of the existing system is unfair and prejudicial to Defendants Cunningham, Scott and the City of Tucson.

City Attorney Mike Rankin welcomed the ruling to dismiss the case.

"The city is pleased with the decision," he said. "With respect to the 9th Circuit decision that was the basis for this election contest, the city will be filing its petition for en banc rehearing by the end of the week."

Burkholder said she was "considering" an appeal of Aragon's ruling, saying Monday that she was "disappointed that the judge would allow an unconstitutional election to stand."

"He stated we should have entered into a suit before the election, however,  at that time we didn't have the appellate court ruling," she said.

"The fact here is that Tucson's hybrid system of ward-only voting in primary elections and city-wide voting in general elections was struck down by the U.S. 9th Circuit Court of Appeals as being unconstitutional and in violation of the 14th Amendment," Lawton said. "I will wait to see what steps the city takes in the next few days in petitioning for a hearing before the full 9th Circuit panel of judges. As such, an appeal is an option."

Cunningham said the lawsuit was "an unnecessary distraction."

"You can't change the rules after the fact," he said. "It's time to move on."

"It's going to be part of my goal for the next four years to improve inter-party relationships," Cunningham said. "Communication at the Legislature and in Congress between the parties has dropped off the face of the earth."

"I don't want that to happen in the city of Tucson," he said. "We need collaboration — I want to hear their point of view ... as long as it's for the betterment of Tucson, and not for the betterment of just their party."

Cunningham said councilmembers need to be open to appointing Republicans to committees and boards, to ensure that GOP voices are represented.

"It's the job; that's part of public office," he said when asked how Republicans can be confident their being represented by an all-Democratic Council.

Scott said she hadn't yet seen the ruling, but said she was pleased by the dismissal.

"It's been my honor to have served and seen all the progress that's happened" in her 20 years on the Council, she said. "Things have really changed."

The now-six-term councilwoman said she intends to focus on bringing "more high-wage jobs so that our constituents can climb the ladder of success."

Suiting up

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.

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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.

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

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