SAN FRANCISCO — A panel of three federal judges will decide whether Tucson voters get to keep the city election system they chose in the 1920s or if they’ll have to choose a new system this year.
The Ninth Circuit Court of Appeals heard arguments Tuesday in a legal challenge to Tucson’s election system brought by the Public Integrity Alliance and a group of Republican voters.
They claim Tucson’s city election system — which is a ward-only primary election and an at-large general election — violates their constitutional rights under the Equal Protection Clause, the “one man, one vote” protection. That’s because some people are excluded from the primary election based on the ward in which they live.
A District Court judge sided with the city in May, and the group filed its appeal in June.
Circuit Judge Richard Tallman seemed to agree with the city during a hearing Tuesday, saying questions about changing the system have been put to voters, who have rejected changes.
“This cuts to the fundamental heart of a democracy,” he said. The people should choose how they select their representatives, he said.
But Public Integrity Alliance attorney Kory Langhofer said the “one man, one vote” right is about protecting minorities, including the Republican political minority in Tucson. If the majority of voters say they don’t want to change the election system, he argued, the court shouldn’t be satisfied with the message that “we’re perfectly happy minimizing the influence of the minority party.”
Circuit Judge Alex Kozinski focused on whether the court should treat the primary election and the general election as one event. The city argues they’re separate. Langhofer says they two processes are tied together and you can’t untangle them.
The city can have either ward-only or at-large elections, but not a hybrid system, the Public Integrity Alliance says. It is asking the court to remand the case to District Court, where a judge would work with the city to put an either-or question on the November ballot for Tucson voters to decide.
Tallman pointed out the city has a referendum process by which that could be done.
Kozinski asked Dennis McLaughlin, of the City Attorney’s Office, whether some voters get a lot more pull than others because of the structure of the election system.
The primary process is for members of each political party to decide the party’s slate of candidates for the general election, McLaughlin said. Each ward chooses a person to put on that slate, ensuring geographic diversity. Then everyone gets to vote in the general.
Kozinski asked how a candidate could be put on the ballot to represent the entire city when five-sixths of the city voters didn’t get a say.
Langhofer drew a parallel to what U.S. Senate races would look like in Arizona if Tucson’s rules applied. In that case, perhaps half of the state would nominate candidates for John McCain’s seat and the other half would nominate candidates for Jeff Flake’s seat, even though both senators represent the entire state and all voters would vote in the general election.
Tallman asked him to compare Tucson’s primary election system to a caucus system “where nominees are picked in somebody’s living room.” Langhofer said that would be the same as Tucson’s current system, because only party voters from Ward 1 would be allowed to nominate Ward 1 candidates, and so on.
“Since the entire City electorate gets to choose all of its council members from among the nominees from each ward, Plaintiffs cannot possibly complain that they are harmed by it, and do not do so,” the city said in its answering brief in the case.
“… In essence then, Plaintiffs here are arguing, through an equal protection claim, that the primary system the City currently has should be declared unconstitutional and replaced with one that the Plaintiffs like better.”
