Tucson’s system for electing city council members, declared unconstitutional in November, will get a second chance at survival in an order Wednesday by the 9th U.S. Circuit Court of Appeals granting rehearing by 11-judges.
A divided three-judge panel held in November Tucson’s hybrid system gave unfair advantage to Democrats over Republicans and struck it down.
In that opinion, Judge Alex Kozinski said the council election system is “hopelessly arbitrary” and thus violated constitutional equal protection rights by giving more weight to some voters over others. The second vote to form the 2-1 majority was a visiting judge from 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.
On Wednesday, a majority of the 27-judge court voted to grant rehearing to Tucson, invalidating the November opinion.
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.
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.
(Judge Mary Murguia did not participate in the en banc vote.)
Case: Public Integrity Alliance v. City of Tucson, No. 15-16142