Metropolitan News-Enterprise


Thursday, April 28, 2016


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Ninth Circuit Court to Rule En Banc Whether ‘Hybrid’ City Elections Violate Equal Protection


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals has agreed to decide en banc whether a “hybrid” system of electing city council members violates the Equal Protection Clause of the U.S. Constitution, the court said yesterday.

In a brief order, the court said that a majority of its unrecused active judges had voted to have an 11-judge panel rehear Public Integrity Alliance, Inc. v. City of Tucson, 15-16142.

A divided three-judge panel ruled last year that the city’s existing system of electing council members is unconstitutional.

 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.

The ruling immediately affected only Tucson. 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 three-judge 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 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. He said the two elections are actually “complementary components of a single election,” and are entirely co-dependent, even though they occur 10 weeks apart.

Senior U.S. 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.”

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, and Anaheim, where voters at the 2014 general election opted to replace at-large elections with a hybrid system.

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


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