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What the Devil won't tell you

GOP challenge to Tucson elections goes South, again

It didn't take Nostradamus to foresee an 11-judge federal court panel upholding Tucson's hybrid election system and cashiering Tucson Republicans' hopes for a court fix to their political woes.

During a June hearing, the "en banc" panel wasted no time mauling arguments put forth by the Alliance for Public Integrity's attorney Kory Langhofer.

The appeals pinball went like this: the GOP group sued the city, calling unconstitutional a system that establishes ward-only primaries selecting City Council candidates for a citywide general election. Elections had to be entirely ward-only or entirely citywide, they claimed. A federal district court said ruled the existing system was fine. The Republicans appealed to the 9th Circuit Court and got lucky because Judge Alex Kozinski chaired the panel that heard the case.

The sometimes zany, sometimes brilliant libertarian judge mind-melded with Langhofer and struck down the hybrid model.

Then a majority of the judges on the 9th Circuit voted to rehear the case before the en banc panel, which unanimously 86ed Kozinski's ruling, shitcanned Langhofer's argument and pretty much doomed Old Pueblo GOP hopes for activist judges to legislate from the bench and rewrite law.

The San Francisco-based appeals court has a rep for liberal tendencies but it was President George W. Bush's appointee, Judge Richard Clifton, who did the heavy lift in obliterating Langhofer's arguments. The U.S. Supreme Court is unlikely to overrule a unanimous decision made by liberal and conservative judges alike.

The ruling spells the end of Tucson Republicans' efforts to sue their way to ward-only elections but it won't end the argument over the social/political injustice of the hybrid system. It requires a bit of a nuanced look, lest we get carried away with redemption and poll taxes. But before I get into the latter, let's look at the former.

Langhofer had a point. Under the Tucson system, Council members are elected to serve all city voters equally. However, because the Council candidates must first win primaries in their own ward before the whole city gets a crack at them, ward voters could have an out-sized power over the members. Kozinski ruled that such a system could dilute the principle of "one voter, one vote." The appearance of undo influence gets heightened because Tucson is a Democratic city and winning the primary has been the crucial election in deciding who serves.

The en banc panel of judges found the flip side more compelling. The same rules needn't apply to primary and general elections, wrote Judge Marsha Berzon in the opinion for the ... umm ... if it's unanimous, is it a majority?

"(T)he recognition that primaries are of great significance to the ultimate choice in a general election and thus directly implicate the right to vote does not mean that primaries and general elections must be identically structured and administered. In fact, that contention is belied by decades of jurisprudence permitting voting restrictions in primary elections that would be unconstitutional in the general election."

When it comes to equal protection, all Tucson voters are equally privileged or equally screwed. Each gets to vote in their own ward-only primary, while being equally locked out of the other five primary races. During the course of two election cycles, everyone gets the same say, Berzon concluded.

That's the point of the hybrid system, to give ward voters (parts of the city) a sense that they have their own Council member, keen to their interests but ultimately responsible to all voters. In the abstract sense, one can argue it's not the best way to go because if the Council members serve all of Tucson, all of Tucson should be able to decide who emerges from the primary.

Constitutional theory vs. desert practice

The lawsuit, though, wasn't launched in a vacuum and it ain't about civics. Tucson Republicans are trying to get themselves ward-only elections to assure their representation from their core strength on the East Side. They would most likely win two safe seats, and forever forego running a competitive race in the other four Democratic wards.

When Kozinski's ruling came down immediately after the 2015 election saw the local GOP get skunked, the Republicans pounced. Langhofer wrote up another lawsuit claiming, wrongly, Kozinski had specifically ruled in favor of a ward-only system and struck down the citywide general but upheld the primary. That challenge was quickly tossed out.

The Pima County Republican Party is trying to win races in an uphill battle, so they are seeking either legislative help to force ward-only elections or non-partisan elections. Don't get too high up on your horse, Democrats. If the roles were reversed, you'd be doing the same thing.

But here's what is also happening: Republicans are playing against type as they play the victim card. They have had nothing but opportunity in the wake of Rio Nuevo, a bad local economy and were gift-wrapped a prolonged bus strike right before the 2015 elections. Yet the local GOP has not run serious races, failing to fund a campaign up to the $55,000 expenditure limit but for once in the last five cycles. That candidate, Steve Kozachik, won.

I will grant Republicans in Tucson this much: the current system assures East Side representation but it's weighted toward the right kind of representation, as defined by a Democratic majority. That's not how representative democracy is supposed to work. So, ward-only elections would create better representation.

The column could end there ... but ...

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Every time I get out they pull me back in!

Just to piss me off and make me dig, local Republicans persist in calling this system "Jim Crow" because East Side Republicans are a minority and are unable to secure themselves representation. I dig more digging on this. If you don't care, you are free to go. If you want to explore this whole Jim Crow thing further, read on and I'm a whole lot more nuanced than I probably should be.

The conservative no-one-owes-you-nothing crowd feel they are owed the representation they won't work to achieve for themselves. It's like political welfare in the name of identity politics from the very people who devote their lives to deny welfare to others and decry identity politics as the road to decline.

Conservatives like to paint the early Progressive movement as racist and that's not hard to do because much of the early Progressive movement was, in fact, racist. From ignoring Jim Crow to the racist study of eugenics, the Progressive era was not a good time for African Americans. However, Tucson's citywide elections weren't established to keep minorities down.

Citywide elections were a originally part of the Progressive movement to get rid of the the corrupt ward systems in big eastern cities. I would not put it past Tucson's city fathers in 1929 to have imposed citywide elections to keep Latinos off the Council.

Electing Council members across the wards with a single city vote can disenfranchise poorer areas who can't afford to finance an election to broadcast itself across a big media market. A way to get around that, is to assure neighborhoods get their candidates elected by requiring candidates submit themselves to say, a primary that is run ward-only.

However, for a citywide election scheme to qualify as Jim Crow, Jim Crow would have had allowed blacks to vote in the first place. Southern Democratic rule did not allow blacks to vote at all. Their votes weren't diluted in citywide schemes, they were denied under the well-heeled boot of the Southern gentleman.

Let's de-conflict Progressive racial ignorance with systemic conservative racism in the South under "Redeemer" segregationism spoken of so highly in Conservapedia (a frightening wiki entry if I ever saw one. Who knew Jim Crow was the Southern black's fault?)

Jim Crow unmasked

The Southern states approved "say-uncle" constitutions after the Civil War guaranteeing freedoms and voting rights to former slaves. It helped that Union troops were occupying the old Confederacy. The 1876 presidential election included two slates of Florida electoral votes, which swung to Republican Rutherford B. Hayes in return for the end of Union occupation of the South. In 1877, Hayes withdrew troops from the South.

Blacks had begun to gain a foothold in Southern society, wielding burgeoning economic and political power. Guess how that went over in the Old South when the Northern troops left?

The process of "redemption" quickly followed, started with "the Mississippi Plan" to take the state back by force. Redeemers sought to restore white rule to the South in the form of the Southern ultra-conservative Bourbon Democrats. Southern Democrats had a paramilitary wing that would use what the military would call harassment and interdiction, historians called "intimidation" and the more blunt might call "death squads." They terrorized blacks right out of office and the voting booth.

Then Mississippi in 1890 rewrote that 1868 constitution to require poll taxes, literacy tests, property tests, grandfather clauses and use "legal means" to sweep Black Republicans from power and keep them there.

James Kimble Vardaman, who would go on to serve as governor of the state, put a pretty fine point on the purpose of rewriting Mississippi's constitution and it doesn't get more to the point than this:

"There is no use to equivocate or lie about the matter. Mississippi's constitutional convention was held for no other purpose than to eliminate the nigger from politics; not the ignorant -- but the nigger." 

After the U.S. Supreme Court handed down Plessy v. Ferguson decision, ruling as constitutional "separate but equal" segregation, other Southern states followed Mississippi and rewrote their constitutions left right and center to codify legally what had already been achieved through intimidation.

Now, I've checked various news archives and I don't remember former Pima County Republican Party chairs Judi White, Bob Westerman, John Munger or Brian Miller being lynched. I'm not recalling the time I passed a literacy test while the Republicans in front of me failed time and time again.

How to be a victim of citywide elections

Citywide elections have been the target of anti-discrimination suits. In 2013, Anaheim, Calif., where D's and R's are evenly split, weighed putting a hybrid system to voters. The American Civil Liberties Union intervened with a court challenge because Anaheim's existing citywide elections disenfranchised Latinos. The white-only City Council represented a community that is nearly half Latino.

Voters in protected classes are protected from discrimination by the Voting Rights Act. We're talking race, gender, religion, etc. Belonging to a political party is not now, nor has it ever been, a protected political class. White conservatives have never, ever, ever been considered the victims of discrimination to the point where white conservatives have been eligible for protection under the Voting Rights Act or the Civil Rights Act.

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That's just not how this works.

Yes, Republicans are a minority in Tucson, as are Democrats statewide. Quite literally, 'dems the breaks. Republicans are the political minority in cities across the country because urban populations tend to be less conservative than suburban or rural communities.

East Side Republicans are neither historically persecuted nor financially prohibited from launching citywide campaigns.

Republicans could very easily be the victims of gerrymandering, the practice of drawing districts for representation to favor one party over another, but there's no gerrymandering in a citywide election. It's the opposite of gerrymandering.

Finally, it's worth pointing out that Democratic Council members in Tucson have historically sought to add the GOP-rich Catalina Foothills to city boundaries. Again, Jim Crow whites never, ever, ever, ever, ever, ever to the 29th power, sought to dilute their power by adding blacks to a city. Under Jim Crow, blacks were not allowed to vote in the first place.

That the Republican rank-and-file isn't as interested in winning City Council elections as it is in bitching about the Council is neither a constitutional issue or an issue of statewide concern. That's the local GOP's problem.

It's not like running from white hoods, or red shirts — because Paul Cunningham's ward office doesn't have a paramilitary arm.

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.


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