City Clerk Roger Randolph can think of at least 17 ways a lawsuit making its way through federal district court would wreak havoc on Tucson City Council elections this year.
He listed them all, point by point, from worrying that candidates who already filed nominating petitions will have to start over, to fretting about missing deadlines for getting the ink printed on the paper ballots.
Randolph’s four-page declaration was presented to U.S. District Court Judge Judge Cindy Jorgenson, who has been asked to issue an injunction blocking the city from using its long-standing system of nominating council candidates by ward to then run in a citywide general election.
After a 90-minute hearing Friday, Jorgenson said she will rule as quickly as possible on the request by a group of Republicans trying to overturn the city election process, but gave no indication when that would be.
Plaintiffs include Republican national committeeman Bruce Ash, a group called the Public Integrity Alliance, and four unsuccessful Republican candidates for City Council and the county Board of Supervisors.
The plaintiffs’ attorney, Kory Langhofer, greeted Randolph before the hearing and shook his hand. “Sorry we sued you,” he said. “It’s nothing personal.”
Only Ash and plaintiff Ken Smalley attended the hearing, and Smalley left after an hour.
Ash, Smalley and the rest of the plaintiffs, Fernando Gonzales, Ann Holden and Lori Oien, claim Tucson’s city election system — which is a ward-only primary election and an at-large general election — violates their 14th Amendment rights under the Equal Protection Clause, the “one man, one vote” protection.
The city’s system has survived many a legal challenge at the state and federal level since it was adopted with the City Charter in 1929. It is an unusual system, but it’s also in place in Santa Ana and Newport Beach, California, and in some cities in Kentucky.
A fast ruling from Jorgenson is needed because the election process, under existing rules, is already underway, with vote-by-mail notices scheduled to go out to registered voters in just over two weeks.
Here are some of the arguments from Friday’s hearing.
AWKWARD TIMING
A city advisory committee earlier this year decided not to recommend putting a charter amendment for a ward-only election on this year’s ballot because they split on whether it’s a good idea.
The lawsuit was filed shortly after that decision. Ash said previously that if the council wasn’t going to put a possible change on the ballot, he would ask the court to make a change.
In their arguments against the injunction, attorneys for the city wrote the “primary election train has already left the station,” and changing now would be an administrative nightmare.
Nine candidates have already filed paperwork to run for office, the four incumbents have already turned in their petitions to get their names on the ballot, and the city has sent postcards to military and overseas voters asking them to choose a party ballot for the primary election, Randolph said in a court document.
By city law, May 24 is the latest all voters may be notified of the election and given a choice of which party ballot to select.
The plaintiffs’ attorneys characterized those problems as “minor logistical” problems and said “inconvenience and urgency are not valid defenses.”
If the city conducts a ward-only primary in August, it should simply continue on with a ward-only general election in November, Langhofer said.
If the judge decides the city’s election system is unconstitutional, she can’t simply order the City Council to change it. The city’s charter says only voters can change the election system, and the court shouldn’t interfere with that, said Richard Rollman, an attorney for the city.
But Langhofer said he believes the judge could order the city to use a ward-only system until voters approve either ward-only or entirely at-large elections.
City voters consistently rejected ward-only elections, voting them down in 1975, 1991 and 1993, while more recent initiative campaigns in 1998, 2001 and 2003 failed to even make it onto the ballot.
GEOGRapHY PROBLEM
If the three council members who are to be elected this year in Wards 1, 2 and 4 will represent the entire city, then voters who live outside those wards are being denied the right to vote for them, Langhofer said.
If each City Council member represents only his or her ward, then voters who live outside that ward are diluting the votes of ward residents in the general election, he said.
“Either way, the Hybrid System is unconstitutional,” Langhofer wrote in court documents.
Everyone gets to vote, just at different times, said Dennis McLaughlin, of the city attorney’s office.
By having ward-only primaries, each area of the city is guaranteed to have nominees who live in and represent their own wards, he said.
If people who live outside a ward want to have a say in that ward’s nominating process, McLaughlin said, there’s nothing in the Equal Protection Clause to grant that. Nor is there anything to say they must be allowed to vote in the primary if they’re allowed to vote in the general election.
