Judge hears case for Tucson election do-over

Two Republican candidates for Tucson City Council want a Pima County Superior Court judge to declare them winners or order a do-over election.

At a hearing Monday, the city argued candidates Kelly Lawton and Margaret Burkholder have no claim because the city operated the election following the rules laid out in the City Charter.

Judge Gus Aragon said he will make a decision in the case by next Monday.

The judge has to take action based on a split decision from a panel of three judges in the Ninth Circuit Court of Appeals that was issued a week after the Nov. 3 election, said attorney Kory Langhofer, who represents the candidates.

That ruling said Tucson’s election system is in violation of the 14th Amendment, the equal-protection clause. The city is petitioning for a rehearing of a larger panel of Ninth Circuit judges.

“Where there is a constitutional violation of the ‘one man, one vote’ principle of tens of thousands of Tucson voters, there must also be a remedy provided,” Langhofer said.

He said the judge’s choices are to declare Lawton and Burkholder the winners or to throw out the election results in Ward 2 and Ward 4 and order a new election.

Dennis McLaughlin, an attorney for the city, said the Ninth Circuit opinion isn’t final and didn’t include an order regarding how the city should change its election system.

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The plaintiffs haven’t shown any votes were cast illegally, McLaughlin said, and the city followed the election rules spelled out in the City Charter and operated under a U.S. District Court order that said the city’s election system was constitutionally valid.

“There were no illegal votes. They have no claim,” he said.

The Ninth Circuit opinion didn’t exist at the time of the Nov. 3 election, McLaughlin argued.

But the Fourteenth Amendment certainly did, Langhofer argued, and the city is requesting “constitutional blinders.”

The two sides disagreed over how a do-over election would be conducted, with the candidates’ attorney saying it would have to be a ward-only general election and the city’s attorney saying it would have to be both a citywide primary and a citywide general election.

“They want you to peel off the votes they don’t like and keep the votes they do like,” McLaughlin told the judge.

After the hearing, Burk-

holder told the Star the preferable outcome is for the judge to declare her and Lawton the winners, because Ward 2 and Ward 4 voters have already had their say and a do-over would cost the city money. The two faced no primary challenges and won in their respective wards in the Nov. 3 general election, but lost citywide to incumbents Paul Cunningham and Shirley Scott.