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What the Devil won't tell you

Should GOP crow about 9th Circuit tossing Tucson elections?

Gaming things out, Republicans still face an uphill battle

So, last week I wrote a column telling Republicans to “bite me” if they are convinced city-wide elections subject them to the atrocities blacks faced under Jim Crow laws in the South.

The party of personal responsibility didn't like me blaming their loss on them, rather than what they see as an unfair system stacked against them. Jim Crow is its own thing. It's a proper noun for a reason. Jim Crow was a system of laws imposed after the election of 1896, when the Western Progressive movement took hold of the Democratic party. So Southern Democrats changed their constitutions to bar blacks and poor whites from voting. Many whites were disenfranchised to keep blacks under the Southern thumb. What's more, under the auspices of Jim Crow, African-Americans were the victims of segregation, cross-burnings and lynchings, in addition to the denial of their right to vote.

Tucson Republicans can't beat Shirley Scott.

It's not the same thing.

In fact, Tucson and Arizona owe their founding to the Western Progressive movement, and our city and state exist today as a reflection of those efforts to rethink municipal and state government. Those who crafted our government wanted to prevent the machine politics of Eastern big cities from taking hold. The mayor and Council system, strong-manager government and city-wide elections were all effort to preempt that sort of Tweedian power.

Tucson's election laws were written in 1929, and conservatives say Latinos in the barrio were denied representation because of it and then (this is key) that system now denies them representation on the Council. So they are laying their victimhood over the top of a victimhood that was never intended to be about them but was simply a result of how Tucson grew and who grew it. So they stopped trying to win elections, because I guess it's easier to shout "Jim Crow."

Tuesday, a federal appeals court ruling out of San Francisco struck down Tucson's hybrid election system as unconstitutionally violating the "one person, one vote" principle. Sweet redemption? Right? No.

My comment stands. The ruling is neither that shocking nor a game-changer. In fact, I'm trying to figure out what Republicans are crowing about because they haven't proven adept in recent years at launching the sort of all-out campaign required to win an election before a skeptical audience. They were great at it, not all that long ago. Bob Walkup, Kathleen Dunbar, Fred Ronstadt and Steve Kozachik were proven 21st-century winners of that game. Republicans have lately preferred to feel aggrieved as victims of the (Democrat) Man.

Walk past the guard house over at Tucson Country Club Estates and you can hear the aching song from among the ramshackle tenements:

Swing low
sweet Mercedes Benz, SL65 AMG
coming for to carry me home …

Ahh, but they are free at last because the 9th Circuit Court – those no-good libs out of San Francisco (ssshshhh! You'll get gay on you!) gave Tucson Republican player Bruce Ash a victory.

Ash helped launch the suit and a three-judge panel ruled 2-1 that Tucson can have ward-only elections or city-wide elections but our hybrid combination must go.

The ruling wasn't a surprise if you watched the August hearing during which the Dennis McLaughlin, principal assistant city attorney, hemmed almost as much as he hawed under hand-tipping cross examination by Judge Alex Kozinski over the very elements that informed the ruling. Being neither a judge, nor a lawyer, it's hard to say if the city's attorney just didn't have much to hang his hat on or was truly out-gunned. Outside legal representation specializing in election or constitutional law may have been warranted but it's hard to say.

It's possible that an en banc hearing of the whole 9th Circuit could reverse the decision. I can tell you this much about the 9th Circuit: they work in a ga-ga-gorgeous building — but that's not enough to speculate on how an en banc ruling might go. They are rare, much like the city's hybrid election system.

Before we look at where we go, let's take a sec and remember how we got here.

Facts of the case

Bruce Ash and the Alliance for Public Integrity (notice how these outfits – left or right – are never named The Coalition for Craven Self-Interest) earlier this year sued the city of Tucson, arguing that primary voters have their voting rights denied because they are stuck with general election candidates in other wards for whom they can't cast a ballot. In Tucson's elections, candidates run in the ward they serve during a primary election and then face all city voters in a general election.

They were not arguing that city-wide elections are unconstitutional or that ward elections deny our rights without due process. They were saying when you put one on top of the other, voting rights are denied.

Kozinski thought the Alliance was right and the hybrid system violated one person, one-vote. He did not however, find that the at-large election favored Democrats as a whole, but some of them over others. For instance, if Democratic Councilwoman Karin Uhlich wanted to be re-elected, she would have to pay inordinate attention to party honchos in her ward.

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Kozinski wrote:

... the vote in the primary—and particularly the Democratic primary— has a commanding influence on the outcome of the general election. Yet five-sixths of Tucson’s voters have not even a theoretical possibility of participating in the primary that will, for all practical purposes, determine who will represent them in the city council.

He stated later in his ruling:

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.

Kozinski's ignorance of how Tucson elections work in practice isn't really in play because he is setting a precedent about how they could work. It's a bit of dynamic interpretation for a Reagan appointee but as a dynamic interpretation guy myself, I'm cool with it. He in no way said city-wide elections are Jim Crow.

Also very important is that the ruling reversed a district court judge's decision but did not remand the case back to the judge to figure out a remedy. Kozinski refused to legislate from the bench. Had the case been remanded to the lower court with strong direction about how to fix the system, the Alliance for Public Integrity could have helped reshape the city elections. It's what the Alliance wanted. They didn't get it.

In fact, Tucson can pretty much rewrite its own ticket so long as voters agree to Charter changes.

Kozinski gave virtually no guidance whatsoever other than Tucson can't have a city-wide election and a ward-only primary. When it has to be fixed and what a fix should involve all go back to the city and voters to decide how to redraw the Charter to make new rules. Sure, it's a headache. If voters say no, then we got a bigger headache.

The city basically has three choices, and absent one suggestion from yours truly, I can't for the life of me see how they help Republicans.


1. Go to a ward-only election. Councilmembers Paul Cunningham and Shirley Scott just won re-election and lost their wards. Do you see them voting to fire themselves? It's not as crazy as it sounds because I was hearing that the Council was ready to put a ward-only ballot to all of Tucson. Voters could then vote it down, feeling they'd rather have access to all six Council members and the mayor.

Tucson voters have knocked down the ward-only election idea before. Ward-only would largely help Republicans and would deny all city voters a say in the whole council. So it's no overhead slam and could risk the courts dictating Tucson's change.

Conservatives have long clamored for ward-only but be clear: without reworking the ward maps to make them competitive, they would likely be stuck with only two seats on the City Council forever and ever, amen — or until future Republican leaders decide they want a crack at a majority.

Otherwise, Republicans would be like Latinos and African-Americans: drawn into safe districts to give minority representation without actually being able to affect the American polity.

Ward-only races would also preserve the idea that everyone in Tucson has a Council member to go to if they need help, favors or sweetheart deals as the case may be.

What they would almost certainly do is forever assure Republicans are forever a minority and make every city general election a snorefest. Incumbents would have enormous advantages in voter registration and almost certainly win as they kept the honchos in their ward happy. Sounds familiar, doesn't it?

I have argued and still favor redrawing the wards as competitive. Throw that on top of the ward-only races and you can change the game. I just haven't heard that groundswell of support for my obvious genius.…

Same old with a twist

2. Work with the status quo. Keep the system basically as is but open up the primary to all city voters, which would also open up the race to any Republican who wanted to challenge any Democrat on the Council. An East Side Republican could take on Regina Romero, whose opponents have been limited to Downtown and West Side Republicans under the current hybrid system.

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What you'd be doing is running for each seat individually but at-large.

The city-wide primary would let all party members in the city vote for their slate of candidates, thus satisfying Kozinski's ruling.

Fine, but when was the last time the City Council saw a knock-down drag-out primary?

In Democratic politics, challenging incumbents through a primary simply isn't done. It's death for a political aspirant.

Sure. We could have some Tea Party revolts among Republicans but that would undercut Republicans because "pure conservatives" won't stand much of a chance in a Democratic town facing a more liberal electorate.

This system would only marginally help Republicans, if at all. The GOP would still have to get their collective acts together in ways they haven't in recent years.

So what else do we have?

One voter, three votes

3. Copy the legislative model. Run at-large citywide primaries and general elections. Each voter gets three votes on a ballot to choose the three Democrats and three Republicans they want to see in the general election. Voters would then get three votes to choose among the six candidates advancing from the primary and dollars to bear claws, three Democrats would square off against the three Republicans and voila! We're right back where we started with the three Democrats heavily favored to win in the general.

Republicans could “single-shot” or “double shot,” as the case may be, to give their candidates better odds. In races for state representative, Democrats in a Republican district and vice-versa often decide to run one candidate. The theory being, the minority party vote is not diluted between two candidates — and if the majority voters don't like one of the choices from their party, they have only one other candidate to vote for. It just doesn't work that often in these highly partisan times.

No magic bullet

Here's where the reversing rather than remanding comes into play. Had the court sent the case back to the Judge Cindy Jorgenson here in Tucson and said: “Look. Fix this system and here are the guidelines under which to do it," maybe that would guide the Bush appointee to work out an arrangement that would favor Republicans.

I'm trying to think what that would look like. Tucson must respect one person, one vote. Would that mean everyone in Tucson gets one vote for any of the candidates but can't vote for two? That would change the game. Now a single shot or double shot would work because the Republicans would lump all their votes on two candidates and Democrats would spread theirs over three.

I just can't see a judge jury-rigging an election like that or voters approving it.

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I'm trying to think of any way that the 9th Circuit ruling reinvents the wheel in the name of electing Republicans in a Democratic city.

It in no way removes the obligation that Republicans raise money and an army of volunteers to get out a message. It's called a campaign. They didn't do that this year.

The ruling leaves me shrugging more than anything else because it does not undo things in the way that GOP county chair Bill Beard says it does. He said that it undermines the legitimacy of Councilmembers Scott and Cunningham, who this year lost their wards and won re-election. Republicans didn't question how Fred Ronstadt and Steve Kozachik would serve Democratic Ward 6. A Republican held that seat for 11 years during a 15-year stretch, until the GOP and Koz filed for divorce in 2012.

With all due respect to Beard, a new system may remove wards from the equation altogether. Then where are you?

At the end of the day, all this foolery is the GOP trying to fix the rules to help themselves. God knows the Democrats did it with vote-by-mail elections. I even support a version of this, but you are going to have to make a race of it.

Republicans, if this is your big victory this year then I strongly urge you to read my column last week again and see the part "how to run a campaign."

But if you want one, Republicans, here is an argument against city-wide elections that doesn't leave you singing "Strange Fruit." You look and sound ridiculous.

The Council is legislative in nature, with our Charter vesting the executive authority a bit into the hands of a mayor but mostly into the office of the city manager.

Legislative representation is a balancing of interests and Republicans in Tucson deserve to have their interests represented on the Council dais, as do all the different parts of the community. This is why I'm in favor of ward-only elections.

Beard wasted no time putting out a fundraising email Tuesday, asking for money to win the war of public opinion to establish ward-only elections so "we will finally have Republican representation in the city of Tucson." The good news for GOPers is that's the kind of nuts-and-bolts campaign effort it takes to win. The bad news is that you have to wait three years and 51 weeks for another crack at Republican-leaning Wards 2 and 4. Also, don't be such Eeyores about how no one likes Republicans outside the wards they dominate. Republicans aren't losers. Don't act like morose donkeys.

After all, the affirming judgment local Republicans should aggressively pursue should come from the voters.

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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have your say   

2 comments on this story

Nov 11, 2015, 11:30 pm
-0 +0

I agree with your column.  I think the equivalency Bruce Ash tried to make between Jim Crow and Republicans getting elected in Tucson was outrageous.  I favor ward only elections, but like you I don’t see how that helps the Republicans get a majority on the city council.  It will help them in those two wards, which would at least introduce Republican ideas to the council which could be a good thing.  But ultimately it wins a battle but not the war.  Ward only elections helps the Republicans in my view if, and only if, they also campaign for the foothills and other unincorporated areas to be annexed by the city and redraw ward lines.  However my observation is that the conservatives in the foothills don’t want to slum it by being associated with the city.  They’d rather look down (figuratively and literally) on the city of Tucson.  They like to vilify Chuck Huckleberry, complain about the county budget, then make the county provide them services that a city should, since they refuse to incorporate or be annexed.  They also leave desperately needed state shared revenue on the table that could be used to make this community better. It’s a perfect victim’s mentality and I don’t see it changing.

Nov 11, 2015, 1:44 pm
-0 +0

NICE commentary.  Ward only in both it should be.

One question…are the Wards now drawn with roughly the same population in each?  Or could the wards become a new battleground?  I sure hope not…...

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