What the Devil won't tell you
Despite GOP lawsuit, judge's ruling seems to favor city-wide elections
Election lawsuit jumps the shark, lands us in Oppositeville
The shark has just poked his head out of the waves and watched the Pima County Republican Party sail over his head on water skis.
They've just gone all-out Jar Jar Binks, getting stupid and spoiling a franchise. The franchise being the vote just held to determine our city leaders.
The party that refused to mount a full-fledged campaign and has called city elections "Jim Crow" oppression now wants to sue incumbents Paul Cunningham and Shirley Scott out of a job.
Now, disclaimers: A copy of the complaint provided to TucsonSentinel.com and other news outlets did not have the stamp slapped on suits when they get filed in court. I'm not a lawyer and me arguing the legal this versus the jurisprudential that is sort of prima facia dangerous. However, I know what I read in the court opinion, I know what I saw on YouTube and I can read a lawsuit. This lawsuit sure looks like a shark-jumper.
Failed Tucson City Council candidates Kelly Lawton and Margaret Burkholder have filed suit, asking the Pima County Superior Court to declare them winners of the 2015 city election despite having gone down in defeat. They are basing their case on a federal appeals court ruling last week that declared the city hybrid election – ward-only primaries and citywide general elections – unconstitutional. According to the court, Tucson can have a ward-only primary-leading to a ward-only general election or a start-to-finish city-wide election. We can't mix and match.
Pima County Republicans blasted out an email from former Republican Councilwoman Kathleen Dunbar, asking for Lawton and Burkholder to be declared the winners after the ruling was released Tuesday. County GOP Chairman Bill Beard was questioning Scott and Cunningham's legitimacy as well.
Lawton and Burkholder's attorney, Kory Langhofer, argued and won the case before the 9th Circuit that is set to undo Tucson's hybrid elections. He did splendidly. Yet did he read the opinion?
I ask, sarcastically, because Langhofer's argument on behalf of the losing candidates is as follows: All city elections are now ward-only because the primary comes first. Welcome to Oppositeville where bonds pass, the Wildcat football coaches have January rentals in Pasadena, Calif., and the court ruling actually came down strongly on the side of ward-only races.
In our universe, Australia National University is the ANU more likely to see the Rose Bowl than a Wildcat quarterback, and the appeals court found that the City Council represents all Tucsonans.
At the risk of turning this election into another can't-change-the-subject bus strike, I feel the need to walk readers through the lawsuit that others may not have time or room to explain.
A ward-only primary followed by a ward-only general election would satisfy the 9th Circuit ruling. Republicans instead want the courts to make the ruling retroactive (something Langhofer originally said they weren't seeking in his arguments before the judges), declare this last election unconstitutional and then cherry-pick favorable results to affirm it.
The appeals court ruling declared that the Council represents of all of Tucson, therefore all Tucsonans should have a say in the primary elections. The ruling did nothing — absolutely, positively nothing — to declare a ward-only preference.
Judge Alex Kozinski's decision spelled it out: A city with at-large elections can't use wards as part of the electoral process.
Re-reading the case, Kozinski ruled that as the system stands, City Council members represent all city voters. Without changing the system, the ward-only primary is the problem — not the city-wide general election. Think I'm lying?
"All parties before us agree that the constituency of each Tucson council member is the entire city. Thus, the relevant geographical unit is the city at large. Because the constituency of the representative to be elected remains static throughout the election process, the geographical unit must also remain static throughout that process."
But wait. There's more:
"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."
Ba-da-bing, ba-da-boom. If I hadn't been told soundmen consider dropping the mic an atrocity, I would drop the mic right now. Present tense “runs,” present tense “represents.” Today. Right now. As we speak. We can assume present makes it retroactive to the 2015 election.
Once Kozinski decided the Council members represent the whole city, the rest of his opinion followed — and it favored city-wide over ward-only.
“… the hybrid system makes the tenure of each at-large council member largely dependent on the preferences of voters of his home ward; without their support, a council member could not be nominated (or re-nominated) in the first place. Given that reality, 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.
If the council members represented the wards first – a case that could be made but wasn't – then maybe he would've ruled differently.
It gets funkier when somebody decides to challenge the last election because of Kozinski's emphasis on the primary election being city-wide.
The frivol ... mmmm ...the lawsuit
If the ward-only primary is unconstitutional — and even a more liberal reading of this ruling trashing the hybrid system would recognize that — then there were no candidates for the general election. In fact, there never have been. All six City Council members would be illegally serving because they were never properly nominated to stand for their general elections. Then again, neither were any of their opponents. So they never lost. They never won. Can we all go home?
Still Langhofer writes that the local court should bar the Council from certifying Cunningham and Scott's election and issue “a declaration” that Lawton and Burkholder received the most votes under something called A.R.S. 16-676 (c). That provision of Arizona law reads:
"If in an election contest it appears that a person other than the contestee has the highest number of legal votes, the court shall declare that person elected and that the certificate of election of the person whose office is contested is of no further legal force or effect."
That's legalese for "give the contest-ors — Lawton and Burkholder — a seat and send the contestees Cunningham and Scott packing."
Now, remember the part where I never passed the bar. There may be a higher principle of law that says primary elections supersede general elections. However, Langhofer never mentioned such a doctrine in the suit he crafted. Lawsuits are bricklaying and because he didn't include that bit of masonry in his case, I'm thinking the reason is that the precedent doesn't exist.
I also know it's a spunky move by Langhofer to try to leverage his victory in court to change the 2015 election.
Another attorney arguing a case in August that could affect a city race in the fall might say to the court: “you know, it's too late to do anything about that now. Let's think of ways to fix this for future elections.” That attorney would be named Kory Langhofer as he argued a case called Alliance for Public Integrity v. City of Tucson. Yeah, told you it gets funkier.
Republicans who waited 40 years to have the hybrid election system overturned should take 40 minutes and watch the 9th Circuit court proceedings. Hell, read the 25-page opinion if you just waited 25 years.
One of the first things you'll see when you watch the video is the date: Aug. 11, 2015. Primary voting was already underway. One of the three judges hearing this case noted the fact at about the 18-minute mark. He then asked Langhofer if his clients needed this case settled to affect the current election.
"The ship has sailed — I think — for the (2015) primary,” Langhover said. “It would be too disruptive to undo the election that's already ongoing."
He then asked the appeals court to remand (return) the case to the U.S. District Court in Tucson. There the parties could hammer out a ballot question to put on this year's ballot to address how Tucson would move forward. Move forward being key, after this election. That was the remedy Ash and Co. were seeking in August because in Langhofer's words, "remedy is complicated."
It's a point Kozinski found so compelling he ignored entirely the request to remand and then waited until after the election to simply reverse the ruling. The libertarian judge left Tucson to decide its own destiny. Judges never answer press questions about court rulings, but presumably Kozinski didn't want his ruling used to undermine the legitimacy of this year's election any more than it affected the legitimacy of the 2013 election.
Now, Langhofer is saying remedy is easy. Just make the losers winners and we can all go home.
If that doesn't work, Langhofer does ask in his court filing for an alternative judgment that Cunningham and Scott stand for a special election ordered by the courts. That's not as far-fetched, but again, because all members of the Council won their primaries the same way, they are all unconstitutionally seated under the 9th Circuit ruling.
Remember though, just whom is screwed by the current system under Kozinski's ruling. It's not East Side Republicans. It's every Tucson voter equally in primary elections. At the same time, all Tucson voters equally hold unconstitutional power over one another. Funky indeed, but this from Kozinski's ruling:
Thus 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.
Yes, Kozinski noted how the Republicans were outnumbered in Tucson, but he breezed right passed it with a “tough cookies” in a cool Romanian accent.
A strange way to get what they want
For years, those outnumbered Republicans in Tucson have howled that city-wide elections are unfair to them because they are always, well … outnumbered. Some have even equated their struggle to that of civil rights activists down South in the 1950s and '60s. A ward-only system would get them representation on the East Side. They've been awaiting a switch to ward-only as if they were waiting on Elijah.
The lawsuit always struck me as a stretch to get there.
I interviewed Langhofer back in April. I was full of vinegar and ready with the knives for him to tackle the whole Jim Crow thing and how Tucson Republicans were victims of the man. I figured that's why they were suing. Then he calmly explained the case and I remember thinking: “That's it? You just want the primary to match the general?”
My knives dropped. “Oh. Well, as you were … never mind.”
Now the local GOP is conflating their long-standing gripe with the contents of the lawsuit itself.
Anyone who saw the arguments online saw how well Langhofer did before the judges. It's possible Republicans figured they had a better shot of winning the case than winning the elections. So they decided to power down through September and October and use a favorable ruling to simply sue to overturn the election. That would be too tricky by half — but local Republicans have tried to juggle fire before.
An interesting thing happened though and the city's lawyer pulled a bit of a Columbo move. Dennis McLaughlin seemed tied up like a pretzel for part of his time before the judges, but he saved Cunningham and Scott when Kozinski grilled him over just who the Council represented. When I saw the video prior to the election, I thought he erred by not saying “they represent the wards but are accountable to the city.” He agreed the Council represented the whole city and it was a nice catch for the sitting Council members.
Had McLaughlin gone the other way, Kozinski may have gone in a completely different direction and found the ward voters were disenfranchised by those outside the wards. The ward process may have been held first above all else. Instead it was the city-wide constituency. Langhofer also missed that hole to drive his case home through. Although it's easy for me to criticize, having never stood in front of 550 IQ points among a three-judge panel ready to have you for breakfast.
Lawton, Burkholder, Ash and Beard find themselves in an odd position. They must peg their argument to a ruling, then prove that ruling flawed and then have it upheld and re-interpreted. It's like building your ship on a boat and then torpedoing both.
And they're asking a Superior Court judge to jump into the middle of an ongoing federal case, where a remedy hasn't been determined and an appeal will almost surely happen. A lower court judge in that situation is likely to politely say, "Uhh ... yeah, right ... Not my bailiwick."
The first act of "Councilmembers" Lawton and Burkholder is to cost city taxpayers money with a lawsuit they should know gets them nowhere, and will only lead to further appeals. I'll let the reader make the joke about how that proves they maybe would fit right in at City Hall.
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.