Bill Beard, chairman of the Pima County GOP, has an op-ed in the Arizona Daily Star crying about Tucson’s hybrid election system again. Bill Beard: Tucson voting system must honor one-man-one-vote principle.
Last May, the U.S. District Court upheld Tucson’s electoral system. The Republican plaintiffs appealed to the Ninth Circuit Court of Appeals.
In November, a divided three judge panel of 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. Here is the Ninth Circuit opinion (.pdf) in Public Integrity Alliance v City of Tucson, 15-16142.
Last week, the full Ninth Circuit granted an en banc rehearing of the three judge panel decision. En banc hearings are not favored, “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.” Rule 35, Federal Rules of Appellate Procedure.
More importantly, when an appellate court grants en banc review, the effect is to vacate the prior three judge panel decision and judgment. Rule 40(a)(4):
If a petition for panel rehearing is granted, the court may do any of the following:
(A) make a final disposition of the case without reargument;
(B) restore the case to the calendar for reargument or resubmission; or
(C) issue any other appropriate order.
The divided three judge panel decision from November has no precedential value and cannot be cited as authority in any other case after the grant of en banc review.
Mr. Beard continues to cite this case only because the majority opinion ruled that Tucson’s election system was “unconstitutional,” something he really wants to emphasize even though it may not be true, as the dissenting opinion strongly argues.
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).
The Pima County GOP really wants Tucson to enact ward-only city council elections. They see this as their best (only) opportunity to pick up a couple of council seats. But the majority opinion in Public Integrity Alliance v City of Tucson on which Mr. Beard relies actually argues in favor of at-large or city-wide elections:
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.
* * *
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.
But Mr. Beard falsely misrepresents in his op-ed that a citizens advisory committee:
[w]ill recommend a system that respects a 9th Circuit proposal that Tucson elect the council by ward only in both the primary and general elections.
That is not what the majority opinion in Public Integrity Alliance v City of Tucson held, and in any event, that opinion is now vacated with the grant of an en banc review.
If the citizens advisory committee actually wants “to respect the 9th Circuit” majority opinion, it would recommend that city council members be elected at-large or city-wide in both the primary and general elections.
But Mr. Beard on behalf of the Pima County GOP will have none of this. Instead he issues a threat to the Tucson City Council and Mayor:
On behalf of the executive committee of the Pima County Republican Party, I want to put the council on notice that any charter change proposal that doesn’t restore the one-man-one-vote principal of ward-only elections in the primary and general will be strongly opposed.
Authoritarian Tea-Publicans are always making demands and throwing a temper tantrum until they get their way.
I would argue that the mayor and council should let this appeal exhaust itself in the appellate courts. The City of Tucson is quite likely to succeed on en banc review (Tucson’s election system has always been upheld in the past). So why should the council cower before the belicose threats from the Pima County GOP to give them the ward-only elections that they demand on a ballot measure this fall or else? Screw them! Let the courts decide this issue. Support the rule of law.
As for Mr. Beard’s arguments about how ward-only elections would encourage annexation of unincorporated areas surrounding the City of Tucson, I have previously addressed this issue:
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.)
Finally, what Mr. Beard demands on behalf of the Pima County GOP has adverse consequences:
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.
The Tucson City Council is going to take up this election issue at its Tuesday, May 3 meeting (Item 9 on the Agenda at 5:30 p.m.) You can be sure that the authoritarian Tea-Publicans will be there whining and threatening the council with demands for ward-only elections. If you believe in the rule of law, allowing the appellate process to play out, and you support either Tucson’s current election system or an at-large city-wide election system, you need to attend to make your views heard over the din of whiny crybaby Tea-Publicans.