PUBLIC INTEGRITY ALLIANCE, INC., an Arizona nonprofit membership corporation; BRUCE ASH, an individual; FERNANDO GONZALES, an individual; ANN HOLDEN, an individual; LORI OIEN, an individual; KEN SMALLEY, an individual, Plaintiffs-Appellants,
CITY OF TUCSON, a chartered city of the State of Arizona; JONATHAN ROTHSCHILD, in his capacity as the Mayor of the City of Tucson; REGINA ROMERO, in her capacity as a member of the Tucson City Council; PAUL CUNNINGHAM, in his capacity as a member of the Tucson City Council; KARIN UHLICH, in her capacity as a member of the Tucson City Council; SHIRLEY SCOTT, in her capacity as a member of the Tucson City Council; RICHARD FIMBRES, in his capacity as a member of the Tucson City Council; STEVE KOZACHIK, in his capacity as a member of the Tucson City Council; ROGER RANDOLPH, in his capacity as the Clerk of the City of Tucson, Defendants-Appellees
Argued and Submitted August 11, 2015 San Francisco, California
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:15-cv-00138-CKJ. Cindy K. Jorgenson, District Judge, Presiding.
The panel reversed the district court's judgment in favor of the City of Tucson in an action challenging the constitutionality of Tucson's hybrid system for electing members of its city council.
Tucson is divided into six wards of approximately equal population, and each ward is allotted one seat on the city council. Under the first step of the hybrid system each ward holds its own primary limited to residents of that ward. The winners of the ward primaries advance to the general election, where they compete against the other candidates nominated from that ward. In the general election, all Tucson residents can vote for one council member from each ward that held a primary during the same election cycle.
The panel first held that in determining the system's constitutionality, the primary and general elections must be considered in tandem as two parts of a single election cycle, rather than two separate contests judged independently of one another.
The panel determined that the practical effect of the Tucson system is to give some of a representative's constituents--those in his home ward--a vote of disproportionate weight. That is the very result the Supreme Court's one person, one vote jurisprudence is meant to foreclose. The panel held that every otherwise eligible voter who will be a constituent of the winner of the general election must have an equal opportunity to participate in each election cycle through which that candidate is selected.
The panel rejected Tucson's argument that the hybrid system is a reasonable " residency restriction" on the right to vote. The panel held that when two groups of citizens share identical interests in an election, the city may not use a residency requirement to exclude one group while including the other. The panel concluded that excluding out-of-ward voters from the primary election discriminates among residents of the same governmental unit in violation of the Equal Protection Clause of the Fourteenth Amendment.
Dissenting, Judge Tallman stated that the Constitution does not require Tucson to draw its district borders in a particular way for different local elections. He concluded that Tucson's hybrid system is constitutional, and the majority erred in holding otherwise.
Kory A. Langhofer (argued), Thomas J. Basile and Roy Herrera, Jr., Brownstein Hyatt Farber Schreck, LLP, Phoenix, Arizona, for Plaintiffs-Appellants.
Michael G. Rankin, City Attorney, Dennis McLaughlin (argued), Principal Assistant City Attorney, Office of the Tucson City Attorney, Tucson, Arizona, and Richard Rollman, Gabroy Rollman & Bosse PC, Tucson, Arizona, for Defendants-Appellees.
Before: Alex Kozinski and Richard C. Tallman, Circuit Judges, and Lawrence L. Piersol,[*] Senior District Judge.
KOZINSKI, Circuit Judge.
We consider the constitutionality of Tucson's unusual system for electing members of its city council.
Tucson's elections are ordinary in many ways. The city is divided into six wards of approximately equal population, and each ward is allotted one seat on the city council. A candidate for city council must run for the seat in the ward where he resides. See Tucson City Charter ch. III, § 1; ch. XVI, § § 5, 8, 9. From there, things take an odd turn.
In some American cities, council seats are filled at large, with the entire city voting for each seat in the primary and general elections. In other cities, council members are nominated and elected by the residents of particular districts. Tucson splits the difference: Since 1930, the city has used a " hybrid system" that combines ward-based primaries with at-large general elections.
The first step in the hybrid system is a partisan primary. Each ward holds its own primary limited to residents of that ward. The winners of the ward primaries advance to the general election, where they compete against the other candidates nominated from that ward. In the general election, all Tucson residents can vote for one council member from each ward that held a primary during the same election cycle. See Charter ch. XVI, § 9. Thus, a resident of Ward 1 can't vote in the Ward 2 primary, but can vote for one of the Ward 2 candidates in the general election. The parties agree that, once elected, council members represent the entire city, not just the ward from which they were nominated. See City of Tucson v. State, 229 Ariz. 172, 273 P.3d 624, 631 (Ariz. 2012) (" Tucson council members, although nominated by ward, represent the entire city, just as do council members elected at large in other cities." ); see also Dallas Cty. v. Reese, 421 U.S. 477, 480, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (" [E]lected officials represent all of those who elect them . . . ." ); Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) (similar).
Council seats are filled in staggered elections, with three council members elected every other year. Once elected, a council member serves a four-year term. See Charter ch. XVI, § § 3-4. The council members from Wards 1, 2 and 4 will be elected in 2015, and the council members from Wards 3, 5 and 6 will be elected in 2017. Because only half of the council seats are up for election in any given year, only half of Tucsonans can vote in a primary in each election cycle. And approximately
83 percent of the electorate that votes for any given council seat in the general election has no say in selecting the nominees competing for that seat.
Plaintiffs are five Tucson voters and a non-profit corporation called the Public Integrity Alliance (collectively " PIA" ). PIA concedes that the city could use ward-based primaries and ward-based general elections without offending the Constitution. Similarly, the city could use at-large primaries and at-large general elections. But PIA argues that combining these two options into a hybrid system violates the federal and Arizona Constitutions by depriving Tucson voters of their right to vote in primary elections for individuals who will ultimately serve as their at-large representatives. PIA sued the city seeking to enjoin the hybrid system and secure a declaration that the scheme is unconstitutional. The district court ruled in favor of the city. We have jurisdiction under 28 U.S.C. § 1291.
We start by resolving a dispute between the parties that has a substantial bearing on our analysis and, ultimately, on the result we reach: Are Tucson's primary and general elections two separate contests, each governed by rules that must be judged independently of one another--as the city contends? Or. are they two parts of a single election cycle, which must be considered in tandem when determining their constitutionality--as PIA claims? The difference matters a great deal. If the two elections were separate, PIA's constitutional objections would largely evaporate and this would become a simple case. This is so because there would be no mismatch ...