Steller: Elections lawsuit might not help Tucson GOP

Be careful what you wish for, Tucson Republicans.

On a day’s reflection, that’s the lesson I took from the surprising 9th U.S. Circuit Court of Appeals decision that called Tucson’s election system unconstitutional.

Don’t get me wrong: The decision was a big victory for the local Republicans who filed suit, hoping to overturn the city’s unusual “hybrid” system before the election this year. In fact, the local GOP called for the Tucson City Council not to certify the re-election of Democratic incumbents Paul Cunningham and Shirley Scott and may file suit to reverse it.

By certifying the election results, as the council did Monday, “They’re saying we’re OK putting into place elected officials who were elected under unconstitutional means,” Bill Beard, the chairman of the Pima County GOP, told me Thursday.

But look closely at the 9th Circuit ruling, and you’ll find the judges pointing the city toward a system that is unlikely to give the Republicans any more representation on the council than they already have. Rather than entertaining ward-only elections, the panel suggested citywide primaries combined with citywide general elections.

With citywide elections, Republicans would have about the same chances as they do today.

The preferred option for Republicans, of course, is ward-only elections. That would mean only the voters in each ward vote for candidates in both the primary and the general. That system would tend to give Republicans the council seats in the east-side wards, 2 and 4.

Even then, they would likely be a minority bloc, but that’s better than the 7-0 advantage Democrats enjoy now.

Ward-only is the option I prefer and hope the city adopts. But there are many alternatives to our current system, as the city’s Charter Review Committee found when it looked into the issue over the last couple of years. And there’s no guarantee the city will move toward any changes in the election system right away.

The City Council is to consider whether to appeal Tuesday’s 9th Circuit decision, possibly asking for a broader 9th Circuit panel to consider the issue, at its Nov. 17 meeting. You can bet on it appealing.

“I think we absolutely appeal. We’ve won it twice in court,” Councilmember Steve Kozachik said, citing past challenges to the system. “If Republicans were all black, they might have a point. But the Republican Party is not a protected class under federal law.”

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In the meantime, the city has certified the recent election results. Nonetheless, former Councilmember Kathleen Dunbar, a Republican, sent an email Thursday that was blasted out by the Pima GOP in which she called on the council either to hold new elections for Ward 2 and Ward 4, or to certify Republicans Kelly Lawton and Margaret Burkholder as the winners.

Lawton and Burkholder won the vote in their wards but lost handily on a citywide basis. That can happen, and often does, in our election system.

Neither of the options Dunbar floated is realistic or makes legal sense. All the candidates went into this year’s election knowing the rules of the game: A ward-only primary and a citywide general.

Indeed, the results of the election would have been exactly the same had the city operated under the system that the 9th Circuit judges discussed in their opinion. Lawton, Burkholder and their Democratic opponents Cunningham and Scott all ran unopposed in their primaries, so they would have won a citywide primary. And of course, we know the results of a citywide general election.

The prospects of a new election system should be viewed as a longer-term prospect. If the city appeals, and the full 9th Circuit strikes down our hybrid system, then the city will likely have to give the voters a choice of alternatives.

One would be ward-only primary and general elections, another would be citywide primary and general elections. Another that the charter review committee considered was a new form of hybrid, committee Vice Chair Diana Rhoades told me Thursday.

This system would have ward-only elections for each of the six wards, then would add one to three new at-large council seats, elected by the whole city.

The city could put a variety of options on the ballot, and the one that passes would become our new system.

But if the Republicans want a ward-only system, as they should, they probably need to take the bull by the horns, collect signatures and put it on the ballot as a citizens’ initiative. Their lawsuit is not going to result in a new system dictated by the courts.

We do need a change, but the soonest it could happen is at next year’s election, before the next scheduled City Council races in 2017.