9th Circuit Court of Appeals strikes down Tucson’s electoral system, appeal to follow

Back in May, the U.S. District Court upheld Tucson’s electoral system. The Republican plaintiffs appealed to the Ninth Circuit Court of Appeals.

On Tuesday, a week after the Tucson mayor and council election, the Ninth Circuit ruled 2-1 in favor of the plaintiffs, the first time since voters enacted the electoral system in the Tucson City Charter in 1930 that someone has successfully challenged the electoral system in court. Tucson’s electoral system has passed muster in numerous legal challenges and DOJ preclearance reviews under the Voting Rights Act in the past.

Here is the Ninth Circuit opinion (.pdf) in Public Integrity Alliance v City of Tucson, 15-16142.

The local reporting on this case is lacking in analysis. It does not appear that anyone has actually read the opinion past the headnotes of the case, and threw in some quotes from the litigants and political party officials. Pro Tip: actually read the case including the dissent, which in this case is the far better reasoned opinion than the majority opinion (albeit with some minor errors in citation). The dissenting opinion should instruct the Ninth Circuit Court of Appeals sitting en banc and/or the U.S. Supreme Court.

The majority opinion argues that a ward only primary followed by an at-large (city wide) election are “two parts of a single election cycle,” not two separate elections. “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.”

The majority points out that in Tucson’s staggered elections (only three of the six wards are up for election every two years), residents living in wards not up for election are not able to participate in the primary, where the party nominees are chosen.  “A citizen’s right to vote in the general election may be meaningless unless also permitted to vote in the primary.”

So Tucson has a choice to make: It can conduct ward only elections, or it can conduct at-large elections, but it cannot use a hybrid of both electoral systems.

The dissenting opinion of Judge Richard Tallman makes several critical points:

1. “Conspicuously absent from the majority’s opinion is any mention of the appropriate standard of review.“ This is something that is included in almost every appellate court opinion. Judge Tallman says the majority has applied the wrong standard of review.
2. “The cases the majority cites do not establish that primary and general elections must always be considered together.”
3. The majority is engaged in judicial activism: “The Constitution does not require this sort of judicial highjacking of state power.”
4. “Supreme Court precedent teaches us that a municipality has broad authority to establish the relevant geographical units for its elections.” Furthermore, the majority points to no case that requires a municipality to use the same geographical unit for both its primary and general elections, cf. Gray, 372 U.S. at 381, and the majority’s holding to the contrary stretches the ‘one person, one vote’ principle beyond its traditional application.”
5. “In short, the Constitution permits Tucson to set different geographical units for its primary and general elections.”

Richard Winger from Ballot Access News posts, Ninth Circuit Rules 2-1 that Tucson Can’t Hold City Council Primaries in Districts, and then At-Large Elections in General:

On November 10, the Ninth Circuit issued this opinion in Public Integrity Alliance v City of Tucson, 15-16142. By a vote of 2-1, the decision says that Tucson’s system of electing city council members violates Equal Protection.

Tucson has partisan city elections, and elects one city council member from each of six wards. In the partisan primary, candidates run within districts, so each district primary nominates someone to represent each party. But in the general election, the election is at-large.

Both the majority opinion and the dissent are flawed. The majority opinion, by Judge Alex Kozinski, a Reagan appointee, says, “Without the primary, there could be no candidate to compete in the general election; without the general election, the primary winners would sit on their hands. Because a candidate must win a primary in order to compete in the general election, the ‘right to choose a representative is in fact controlled by the primary’.”

This is a false statement, because Tucson has procedures for independent candidates to petition directly onto the general election ballot.

The opinion was co-signed by visiting U.S. District Court Judge Lawrence Piersol, a Clinton appointee. The dissent is by Judge Richard Tallman, also a Clinton appointee, although a Republican. The dissent is also flawed, because it says “The Supreme Court has been reticent to apply strict scrutiny to state election laws. It has done so only to evaluate discriminatory poll taxes, property ownership requirements for voting, and durational residency requirements.” The Supreme Court has also applied strict scrutiny to ballot access, most recently in 1992 in Norman v. Reed.

Also, the dissent says on page 18 that the U.S. Supreme Court case American Party of Texas v. White held that states may establish waiting periods before voters may be permitted to change their registration and participate in another party’s primary. That is untrue; the case that did that is Rosario v. Rockefeller.

As Mr. Winger knows, the Court can correct any citation errors before final publication. Only Norman v. Reed may be relevant to the discussion.  The majority opinion failed to make “any mention of the appropriate standard of review,“ which is the grounds for error.

Republicans in Tucson want a ward only election based upon recent voting demographics. Republicans have carried Wards 2 and 4 on Tucson’s Eastside in each of the past two elections. Shirley Scott, Paul Cunningham re-elected, but lost own wards. Democrats have won these wards in previous election cycles, and these wards remain competitive.

Republicans also want a ward only election system because of the “mountain to mountain” annexation policy of the City of Tucson. Residents living in unincorporated areas surrounding the City of Tucson — who have cost Pima County millions upon millions of dollars in state revenue sharing because they are unincorporated — have always asserted that they will not agree to annexation into the city unless they get their own ward.

First of all, this is not how election district mapping is done. For example, if Tucson’s Foothills were annexed into the city the residents of the annexed area do not constitute a new ward. The ward lines throughout the city would be adjusted to encompass the newly annexed areas. The wards encompassing the Tucson Foothills would likely be competitive.

The unincorporated areas surrounding the City of Tucson could also choose to incorporate into their own city governments, but they have always rejected this idea, thus depriving Pima County of millions upon millions of dollars in state revenue sharing for things like roads. (These same unincorporated area residents recently voted down Pima County bonds for things like roads. Burbs torpedoed county’s $200M road plan.)

The other electoral system alternative is an at-large (city wide) election. Currently this favors Democrats in the City of Tucson. But if unincorporated areas surrounding the City of Tucson were annexed into the city, this conceivably could shift party control on the council depending on the voting demographic of the areas annexed, and the number of new council wards added to accommodate for increased population.

At-large (city wide) voting tends to diminish minority community opportunities for election. At-large elections are suspect under DOJ Voting Rights Act review for this reason. Tucson has elected Latino representatives, both Republican and Democrat, and one African-American council member over the years partly because of Tucson’s hybrid electoral system. The candidates won in the general election because they had the imprimatur of being their party’s nominee in the ward only primary.

Ward only elections can lead to “Chicago style” ward politics where a councilman can maintain a “fiefdom” and stay in power with political patronage and only a minimal number of voters turning out to re-elect him or her. There is little incentive to consider the best interests of other city wards or the city as a whole. In practice, this also tends to reduce overall voter turnout.