Dylan Smith at the Tucson Sentinel reports that the full Ninth Circuit Court of Appeals has agreed to the City of Tucson’s request for an en banc review of the federal district court panels’ 2-1 split decision last November regarding the City of Tucson’s “hybrid” election system.
En banc hearings are not favored, Rule 35, Federal Rules of Appellate Procedure, “and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.”
It takes “a majority of the circuit judges who are in regular active service and who are not disqualified to order that an appeal or other proceeding be heard or reheard by the court of appeals en banc,” which seems to favor the City of Tucson’s appeal (all previous legal challenges to the City of Tucson’s “hybrid” election system resulted in the election system being upheld by the courts).
Dylan Smith reports Full 9th Circuit to take another look at Tucson elections:
A full panel of appeals court judges will review Tucson’s municipal elections system, officials said. In June, an 11-member en banc panel will hear oral argument over the city’s appeal of an earlier decision by three judges that held Tucson’s elections to be unconstitutional.
The hearing will be held the week of June 20 in San Francisco, the 9th Circuit ordered Wednesday.
The City Council has only until early July to determine if a measure changing the City Charter to alter Tucson’s election system will appear on the November ballot. It’s unlikely that a court ruling will be issued prior to that.
The appeals court could uphold the current Tucson system, concur with the previous ruling that it is unconstitutional and elections should be held entirely at-large, or — in a possibility that hasn’t gotten much attention — impose a different system than what the three-judge panel favored.
“Since this is what we’ve asked for, we’re very pleased with the result,” said Tucson City Attorney Michael Rankin, who argued the case for the city. “This is very important case to us because it tried the constitutionality of our election system and our charter provisions.”
* * *
In November, the smaller panel of federal judges ruled 2-1 that Tucson’s “odd” system of electing its Council violates the principle of “one person, one vote.”
Writing for the majority, Circuit Judge Alex Kozinski said that Tucson’s holding ward-only primaries and city-wide general elections for Council members was an “unusual system.”
“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,” wrote Kozinski in the split decision.
Note: The majority opinion indicated the majority’s preference for a city-wide primary and general election, not the ward-only election system that the GOP plaintiffs sought by way of their lawsuit. Oops!
Giving the city a route for a possible appeal, either for a re-hearing by the full 9th Circuit or to the U.S. Supreme Court, Circuit Judge Richard Tallman strongly dissented.
“There are certain times when a federal court may tell a municipality how to run its local elections. This is not one of them,” he wrote, noting that the primary election nominates candidates to represent parties.
“The Supreme Court has never before held that the same geographical unit must apply to both the primary and general elections,” the dissenting judge wrote.
The Council voted a week later to request an en banc re-hearing before the entire 11-member federal appeals court. Council members Paul Cunningham and Shirley Scott recusing themselves from the discussion and vote.
A group of Republicans, including GOP national committeeman Bruce Ash and failed 2007 Council candidate Lori Oien, filed suit last spring in an attempt to overturn the process. Oien recently withdrew from the case.
* * *
A citizens committee convened this winter recommended that the Council put on the next general election ballot possible changes to the Charter. Most members of the committee favored electing six ward representatives with both primary and general elections being ward-only, and expanding the Council with two additional members who would be elected at-large by all city voters. Committee members were split on whether they would prefer keeping the current system or moving to a ward-only system without the additional members, if the expanded Council wasn’t put on the ballot.
It is highly unlikely that the 9th Circuit Court of Appeals will issue its ruling before the city council’s July deadline for sending ballot measures to the November ballot. It seems premature to me to concede this case through a ballot measure when the 9th Circuit Court of Appeals may very well rule in the City of Tucson’s favor.
Of course, the GOP plaintiffs will appeal a favorable decision for the City of Tucson to the U.S. Supreme Court, where these “one person, one vote” challenges being brought by the GOP have not fared well this term.
What’s the rush? Let the legal challenge exhaust itself in the courts first.