Tucson’s hybrid system of electing city council members has been declared unconstitutional because it gives unfair advantage to Democrats over Republicans, a federal appeals court ruled.
A divided 9th U.S. Circuit Court of Appeals held Tuesday, in a 2-1 vote, that Tucson’s council election system is “hopelessly arbitrary” and thus violates constitutional equal protection rights by giving more weight to some voters over others.
American cities generally select council seats in one of two ways, either though at-large selection, with the entire city voting for each seat in primary and general elections, or by district voting with council members nominated and elected by residents of particular districts.
Tucson did a little of both. The city is divided into six districts, known as wards and a council member is selected from each ward.
Since 1930, Tucson has allowed partisan primaries in which each ward holds its own primary limited to residents of the ward. The winners of the ward primaries advance to the general election, where they compete against the other party candidates nominated from that ward.
In the general election, all Tucson residents can vote for one council member from each ward. So a resident from Ward One can’t vote in a Ward Two primary, but they can vote for Ward Two candidates in the general election.
The court held that this gave more weight to the primary selection process and less weight to the at-large voting in the general election.
The court held the two votes, the primary and general elections, are not separate contests but must be judged as a single election.
Judge Alex Kozinski pointed out that although Arizona as a whole generally votes Republican, Tucson generally votes Democratic. This means a Democratic nominee from each ward will likely win the general election regardless of whether the ward from which he was nominated is principally Republican or Democrat.
Tucson’s current mayor and all six council members are Democrats.
Kozinski said the Democratic nominee in the primary has a commanding – and unconstitutional — influence on the outcome of the general election. Kozinski was joined by visiting Judge Lawrence Piersol of South Dakota.
In dissent, Judge Richard Tallman said Tucson’s hybrid election system does not invidiously discriminate against voters based on their race, ethnicity, gender or wealth. There are times when a federal court may not tell cities how to run local elections, “this is one of them,” he said.
Case: Public Integrity Alliance v. City of Tucson, No. 15-16142
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