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What the Devil won't tell you

When judges attack: Future brightens for Tucson's hybrid elections

9th Circuit panel dubious of claims that voting system leaves GOP behind

I went to Desert Diamond Casino once. Once. Holding 20s, I lost at enough consecutive hands of blackjack that the dealer apologized. The pit boss apologized. No, I'm just like that, I told them.

So I'm not a betting man. If I were, after a watching last week's re-hearing of a case about Tucson's elections, I would bet a week's pay that Tucson Republicans' jubilation about a federal appeals court's previous body slam of the city's hybrid system will be very short lived.

In November, a three-judge panel of the U.S. 9th Circuit Court of Appeals struck down the city's ward-only primary/at-large general election system. The local GOP rejoiced thinking they were finally going to get the ward-only elections they had long sought. They even sued to nix the 2015 election results (they were routed citywide). They also sought to have the court install in office losing candidates Kelly Lawton and Margaret Burkholder, as they'd gotten more votes in their wards. That was getting way ahead of themselves because the court ruling did not call for ward-only elections.

In December, the city asked for an en banc ruling on the case, meaning an 11-judge 9th Circuit panel would hear the appeal, rather than taking the case to the U.S. Supreme Court.

Last week the city and the Public Integrity Alliance had their day in court. Again. It's dangerous to predict how a case will break based on oral arguments. It's a dead simple observation that the alliance's attorney had a far worse day than the city's.

At issue is the hybrid model. Attorney Kory Langhofer argued for the Republican group that every voter in Tucson is denied the right to vote during party primaries for five of the six City Council candidates who will serve them. They rolled out a bunch of cases involving disenfranchising African Americans to make their point. The key to the city's argument was that every voter is treated the same — red, black, white, polka dotted or phasing in and out of spacetime — and all face the same rights and restrictions.

Forget about the trial court judges who hear a case. Appellate court judges are free to seize a case and take it where they want it to go. 

Langhofer, so able and free to make his case last fall, barely made it 45 seconds into his presentation before the hounds attacked. The next 25 minutes saw him desperately trying to get the judges' fangs off his pant leg and shirtsleeves.

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The 11-judge panel was stocked with 9 Clinton and Obama appointees. In political cases, Democrats can, y'know, side with the Democrats and Republicans can, golly, side with Republicans (all civics lessons aside). Republicans were suing this Democratic-run city.

That wasn't Langhofer's problem. His problem was the lead attack dog most after his scent was one of the two George W. Bush appointees.

Fangs, torpedos and money

Judge Richard Clifton simply would not release his jaws. He didn't buy that the hybrid system denied or diluted anyone the right to vote because the system allows all voters to choose their candidates in a primary and are all equally excluded from voting for candidates out of the other five wards. For every Langhofer thrust, Clifton had a parry.

"We know an at-large election is okay We know a ward-only is okay. I'm having a hard time  I'm having a hard time figuring out the problem with serving both masters," Clifton asked and Langhofer barely had a chance to answer.

Finally, Langhofer was left to sail into his own torpedo as he made his final point to the court. He argued that if the Arizona Legislature was chosen at-large, no Democrat would ever win. Clifton brought up a 1962 Illinois legislative election that was held statewide in the absence of district apportionment and probably because machine boss Tom Daley said so. As Langhofer tried to recover from that, Clifton pointed out that the whole argument was stupid because Langhofer had a already conceded that at-large elections were constitutional.

"If you concede that an at-large election would not be unconstitutional, so moving it out to the state of Arizona I'm not sure how that helps you," Clifton said, right at the end of the hearing, leaving that lasting impression.

Four other judges also asked questions that were veiled arguments that took down the Alliance for Public Integrity's arguments that Tucson's hybrid system violates voting rights.

The money question was raised by Judge William Fletcher, who asked: What's in it for you, really?

"Someone's paying you to bring this lawsuit and I'm trying to figure out why they care."

Well that's just it, your honor. His question was another way of saying "is this just because Republicans can't win elections?"

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Langhofer's one friend on the court threw him a lifeline to help him explain a broader point but did so with the caveat "I'm not sure I buy your point." By the way, Judge Morgan Christen bears the distinction of being the only person on earth to have been appointed by Gov. Sarah Palin and President Barack Obama. She needs to be put in charge of everything.

Smooth ride 

By contrast, Deputy City Attorney Dennis McLaughlin could have folded his laundry and balanced his checkbook during his time in front of the judges.

He cruised through his presentation. The first time he was interrupted was by Judge Consuelo Callahan (a GW Bush appointee) asking what sounded like a trick question. She asked if he had any issue with the November ruling's dissent (in his favor). Why no!, McLaughlin said. The guy who agreed with me got it right.

There was one housekeeping question and "devil's advocate" counter that McLaughlin fielded easily.

He pointed out later that a Republican won in the last decade — Steve Kozachik — though he switched parties. McLaughlin either didn't know to or chose not to mention that none of the Republican candidates since have really tried to win by raising money and building an organization.

If any of the 11 judges had a problem with McLaughlin's core points, they were keeping it to themselves.

Unlike seven months ago, McLaughlin was able to make the theoretical case for the hybrid system providing neighborhoods with a councilmember responsible to them without the city becoming a collection of warring parochial tribes (my terms).

I imagine it helps to explain why the city adopted a system so rare in America.

What they didn't say

Now, for the sake of social media. The judges said none of the following:

  • Republicans are disenfranchised by at-large elections and may need some relief.
  • Tucson Republicans are under the same disadvantages as African Americans in the Jim Crow South.
  • Living Republican in Tucson being out-numbered by Democrats is not a violation of civil rights.

Moreover, the court seemed not to find any harm done to Tucson voters. That's key because last summer, Judge Alex Kozinski did. During oral arguments before the first 9th Circuit ruling, Kozinski pointed out that a Democrat in Ward 1 had more influence on the Ward 1 councilmember, because that constituent could organize primary opposition.

The judges this time didn't find any harm. They didn't suggest any harm. They did blow off the harm that Langhofer suggested. The poor guy kept trying to bring up how his two clients Ann Holden and Ken Smalley were done harm but he barely got their names out before being interrupted with the stare decicis translation of "bullshit."

A reason judges eschew granting Tucson Republicans protected status under the U.S. Constitution is that — perhaps (just wagering, which I suck at) — Arizona Democrats could claim the same harm. So could Mesa Democrats. So could Green Party members anywhere but freaking Berkeley or Richmond, Calif.

To me, Kozinski's ruling made a degree of sense. I'd like to see some ward-only representation. Sure. I'd like any governing body face the prospect of consequences at the polls. The judges this time around made the case "no harm, no foul" because cities should be able to establish their own system of election so long as no one is actually disenfranchised.

Reading judges is a dangerous game. Just because they are tough on one side and easy on another can be misconstrued to mean the court is going one way and not another. A year ago, practically to the day, Arizona's Independent Redistricting Commission was believed to be nailed in its coffin based on how the Supreme Court went at the two sides.

Surprise: The court upheld the IRC.

Tucson's election system screws everyone equally or treats everyone the same. The judges seemed OK with that.

So I would wager that the local GOP will just have to get back to the hard work needed to win elections and not just mail it in (by which I mean, mailing in ballots in a mail-only election).

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How sure am I? I've got two kings. The dealer has an 8. How can I lose?

Blake Morlock covered Arizona government and politics for 15 years, including 11 in the Tucson Citizen. He also worked on Democratic Party campaigns in the field of political communications. Now he’s telling you things that the Devil won’t.
Correction: An earlier version of this column included a reference to Clean Elections that should have been to the Independent Redistricting Commission.

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have your say   

1 comment on this story

Jun 29, 2016, 4:33 pm
-1 +4

Why does this have to be a partisan issue? Sure, the motives may be partisan, but the goal is noble and just: fixing this horrendously stupid system that Tucson uses.

I wouldn’t have a problem with ward-only, or at-large. But, a hybrid system does disenfranchise someone any way you look at it. Anyone who thinks this system is great probably also thinks that the streetcar was a wise investment and that no one ever stole money from Rio Nuevo…and those people can’t be reasoned with, so I won’t try. But, even at that, this system really needs to be fixed.

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