In a major and long-sought victory for Republicans, a federal appeals court on Tuesday voided Tucson’s unique ward and partisan voting system as unconstitutional.
In a sometimes strongly worded opinion, Alex Kozinski, writing for the majority of the three-judge panel, said the system of partisan nomination by wards but electing at large unconstitutionally denies residents equal rights. And the losers in that system, according to Kozinski, are Republicans.
Tuesday’s ruling is the first court victory in what has been a multi-year attempt by Republicans to upend the system.
An attempt by the Republican-controlled Legislature to ban the city’s partisan elections and require the general election to be conducted on a ward basis was declared unconstitutional by the Arizona Supreme Court. A state appellate court separately killed another legislative bid to tell Tucson on what dates they had to hold their elections.
And a federal trial judge, ruling in this case, had rebuffed the challenge to the bifurcated system, a ruling now overturned.
The decision is unlikely to be the last word, with city officials expected to seek review, either by the full appellate court or, ultimately, by the U.S. Supreme Court. That process could take months.
But even if Tucson loses, city Attorney Mike Rankin said Kozinski’s ruling does not necessarily doom either the ward system or even partisan elections.
“He’s not saying you have to have ward-only primaries or ward-only generals,” Rankin said.
“He’s not saying you have to have at-large primaries or at-large generals,” he continued. “But he’s saying that you can’t mix the two.”
Several Arizona cities elect council members by district. Two things make Tucson unique. The first is that candidates run on a partisan basis.
More significantly, the partisan primary elections for each of the six council seats are conducted solely within each district. But the general election is held on an at-large basis, meaning each of the candidates who won a district primary has to appeal to voters citywide.
Kozinski said the flaw in that system, in use since 1930, is that residents of some wards — particularly those in Republican-dominated ones — are unlikely to get the representation they want.
He pointed out that a majority of Tucson voters are Democrats. More to the point, with the general election run on an at-large basis, that Democratic edge makes all the difference.
“In most cases, then, the Democratic ward primary is the only election that matters,” Kozinski wrote, calling the general election “a mere formality.”
“Even if electing the Democratic nominee is not automatic, there is no dispute that the Democratic nominee enters the general election with an enormous advantage,” the judge continued, by virtue of that party’s larger voter registration edge citywide.
“Thus, the vote in the primary — and particularly the Democratic primary — has a commanding influence on the outcome of the general election,” Kozinski wrote. “Yet five-sixths of Tucson’s voters have not even a theoretical possibility of participating in the primary that will, for all practical purposes, determine who will represent them in the city council.”
The problem, said Kozinski, goes beyond that.
He said the city claims that at-large election means council members answer to all residents and not just those from their ward.
“The exact opposite is true,” the judge said, given the need to get nominated from the home ward.
“We cannot endorse an election system that encourages at-large representatives to prioritize kissing babies and currying favor in their home wards over the interests of their constituents who happen to live in other parts of the city,” Kozinski said. “As the Supreme Court itself has noted, an at-large representative ‘must be vigilant to serve the interests of all the people in the city and not merely those of people in his home ward.’ “
The case against the city was brought by the Public Integrity Alliance representing several Republicans.
But attorney Kory Langhofer said while Republican voters in Tucson are the beneficiaries, this was not a partisan move on behalf of the GOP. He said the alliance gets involved in all kinds of cases and elections where it believes there is impropriety.
Last year, for example, it paid for commercials during the Republican primary attacking incumbent Attorney General Tom Horne. That helped Mark Brnovich win the primary; he ultimately went on to defeat Democrat Felecia Rotellini.
And the organization is currently asking the U.S. Department of Justice to seek removal of Susan Bitter Smith from her office at the Arizona Corporation Commission, contending she has an illegal conflict of interest because of her outside jobs as a lobbyist, public relations executive and chair of a cable television group. Bitter Smith is a Republican.
Tucson’s election system has been under regular attack by the Republican-controlled Legislature.
In 2009, then state Sen. Jonathan Paton, a Tucson Republican, pushed through a measure barring cities from conducting an election where the candidates’ political affiliations are listed on the ballot. Tucson is the only Arizona city that has partisan elections.
That law also voided Tucson’s modified ward election system.
Horne interceded to defend the law, arguing that it is illegal, at least in part because it makes it more difficult for Republicans to get elected — essentially the same arguments made to the 9th Circuit in this case.
But in a 2012 ruling the state Supreme Court said charter cities such as Tucson have constitutional rights that include the power to decide both whether to elect council members on an at-large or district basis, and whether to conduct elections on a partisan basis.
Justice Scott Bales, writing for the court, said there was nothing inherently unfair about a citywide at-large election.
“Tucson council members, although nominated by ward, represent the entire city, just as do council members elected at large in other cities,” he wrote.
In 2012, the Legislature voted to allow cities to have elections only in even-numbered years, and only on four specific dates. That would have undermined Tucson’s odd-year elections.
Proponents of the law argued that having city elections separate from others depresses turnout.
But in a 2014 ruling, Judge Michael Miller said there is no clear evidence that is the case.
Miller acknowledged there was some evidence that consolidated elections might save costs to local taxpayers. But he said that is none of the state’s concern — at least not among cities like Tucson where residents have exercised their state constitutional right to govern themselves through charters.