Metropolitan News-Enterprise


Thursday, November 12, 2015


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Panel Holds ‘Hybrid’ Local Election System Unconstitutional


From Staff and Wire Service Reports


A “hybrid” system of electing city council members violates the Equal Protection Clause of the U.S. Constitution, the Ninth U.S. Circuit Court of Appeals ruled Tuesday.

Under a hybrid system, voters can only vote for candidates in their own district or ward in the primary. The top vote-getters in the primary, however, then run citywide in the general election.

Tuesday’s 2-1 ruling specifically struck down the hybrid system used in Tucson, Ariz. But many other cities in the circuit, including a number in California, have used, are using, or are considering hybrid systems.

Under the Tucson system, partisan primaries are held in six wards, three of which vote every other year. The primary winners then run at-large for four-year terms.

The system is unconstitutional because it gives the voters within a particular ward disproportionate say in who represents the ward, Judge Alex Kozinski wrote for the panel.

While the parties agreed that the city—which has used the hybrid since 1930—could constitutionally use at-large or ward elections, the judge said, the effect of the current system is to give voters in other wards a lesser opportunity to elect the representative of a particular ward, even though the citywide feature gives them an “identical” interest in the election’s outcome.

Kozinski Rejects Argument

Kozinski rejected the city’s argument that the primary and general elections should be viewed as independent exercises. Under that scenario, the plaintiffs’ challenge “would largely evaporate,” the jurist acknowledged.

“Unfortunately, the easy solution is not available because it is perfectly clear that the two contests are not independent,” he wrote. “Instead, they are complementary components of a single election.  Although the two contests are separated in time by ten weeks, they are entirely co-dependent.  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.”

He cited, among other cases, United States v. Classic (1941) 313 U.S. 299, which held that federal laws proscribing corrupt election practices could be applied to primaries because they were part of the same process as the general election, as the “right to choose a representative is in fact controlled by the primary.”

Senior District Judge Lawrence Piersol, visiting from the District of South Dakota, concurred. Judge Richard Tallman dissented, agreeing with the city that the primary and general elections must be viewed separately, and concluding that “the Constitution does not require Tucson to draw its district borders in a particular way for different local elections.”

The decision comes just one week after Tucson voters reelected Democrats to all three seats up for election this year. Republicans have long argued that the system is unfair because it shuts them out of representation in the heavily Democratic city, where all seven members of the council, including the mayor, are Democrats.

Ruling Praised

Among the plaintiffs in the action was Robert Ash, Republican national committeeman from Arizona. He said in a statement Tuesday that the ruling would give the Republicans a fair shot at winning two council seats, based on the present ward boundaries, if future elections were held solely by ward.

Arizona Republican Party Chairman Robert Graham also praised the ruling.

“The court acknowledged that Arizona voters generally choose Republicans, and that Tucson Democrats gave themselves an ‘enormous advantage’ by carefully excluding voters from selecting the candidate of their choice,” Graham said.

But Tucson City Attorney Mike Rankin said the process has wide support and has survived other court battles and two referendums in the 1990s.

“Folks tend to feel that that is a good balance because it means the council members are responsive to the members in their own ward, but they’re also responsive to everybody city-wide because that’s who they represent and that’s who elects them,” Rankin said.

The city council would discuss options at its Nov. 17 meeting, Rankin said.

Mayor Jonathan Rothschild said the city could either allow residents to vote for any candidate in both the primary and general elections, or for ward-specific candidates. “Ultimately, we may need to put these options on the ballot and see which one voters prefer,” Rothschild said.

Kory Langhofer, the plaintiffs’ attorney, said in a statement that the ruling was “a very satisfying outcome” and that while it “obviously has a partisan effect…the decision was based not on party loyalties but on principles of fairness and equality.”

The case is Public Integrity Alliance, Inc. v. City of Tucson, 15-16142.

Effect in California

Among California cities that have dealt with the issue are Long Beach and San Diego, which ditched hybrid elections in favor of straight district voting years ago, and Anaheim, where voters at last year’s general election opted to replace at-large elections with a hybrid system that has not yet been used, and could be in jeopardy as a result of Tuesday’s decision.

The Anaheim proposal was placed on the ballot by council members, who rejected the proposal of a citizens’ advisory committee to go to straight district elections.  

A 2002 survey by the Public Policy Institute of California indicated that only nine cities in California were using hybrid elections at that time. City elections in California differ from Tuscon’s in that the state Constitution requires that city elections be nonpartisan.


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