Metropolitan News-Enterprise


Tuesday, September 6, 2016


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Ninth Circuit’s En Banc Ruling Upholds Constitutionality of ‘Hybrid’ City Elections


From Staff and Wire Service Reports


A hybrid election system for the city council of Tucson, Ariz., does not violate the one-person, one-vote principle of the U.S. Constitution, the Ninth U.S. Circuit Court of Appeals ruled en banc Friday.

The 11-0 ruling overturns the decision of a three-judge panel, which held 2-1 earlier this year that the system violated the Equal Protection Clause of the Fourteenth Amendment. The en banc court said the longstanding system had a “very minimal,” if any, impact on the plaintiff voters, and that the city had a strong interest in deciding for itself how best to reconcile the desire for a council attentive to citywide interests with that for one more sympathetic to the concerns of individual wards.

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.

Judge Marsha Berzon, writing for the en banc court, noted that the system has been in use since 1930, and that voters have twice rejected efforts to change it. Tucson’s electorate voted in 1991 not to change from at-large to ward-based general elections, and voted in 1993 against changing from partisan to non-partisan elections.

The earlier panel reversed a ruling in favor of the city by U.S. District Judge Cindy Jorgensen.

 At the en banc hearing in June, an attorney for the plaintiffs argued that allowing the city to treat the primary and the general elections separately gave the government too much power to discriminate against minority parties. The majority of Tucson voters are Democrats.

“If you can control the geography of the primary, you can control the outcome,” Kory Langhofer said.

The three-judge panel 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. Judge Alex Kozinski rejected the city’s argument that the primary and general elections should be viewed as independent exercises, saying they were actually “complementary components of a single election,” and entirely co-dependent, even though they occur 10 weeks apart.

Berzon, however, rejected the “single election” analysis, writing:

“These voting restrictions are constitutionally permissible in primaries because primaries serve a different function than general elections: A primary determines which candidates will compete in the general election, a critical stage and one fully subject in its own right to constitutional scrutiny ... but a stage as to which the legitimate state interests are not identical with those pertinent to the general election.”

Berzon also rejected the argument that staggered elections violate the Equal Protection Clause.

“Although half of Tucson’s residents are unable to vote in a primary in a given election year, that burden quickly evens out over time, as the other half of Tucson’s residents will not be able to vote in a primary in the next election year,” she wrote. “Ultimately, every voter has an equal opportunity to vote in their own ward’s primary every four years and in the general election every two years.”

Reached for comment, Langhofer described the court’s decision as “disappointing.” The attorney said his team will decide later this month whether to seek review by the U.S. Supreme Court.

Tucson City Attorney Mike Rankin said the court reached the correct result.

  “We understood that this was an important case because we are defending the charter of the city of Tucson and the election system that the voters of the city of Tucson had chosen themselves,” Rankin said. “We are very satisfied that the court’s unanimous decision had agreed that system is constitutional, and that it serves an important local government interest.”

Tucson 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.

Two of the three defeated Republican candidates—both of whom received more votes than their Democratic opponents within their wards—sued to overturn last year’s election on the basis of the Ninth Circuit ruling, but a state trial judge ruled that laches barred the action.

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.

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 Tucson’s in that the state Constitution requires that city elections be nonpartisan.

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


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