9th Circuit Throws Tucson Elections in Doubt

TUCSON (CN) - Two candidates who lost races for the Tucson City Council want the results canceled, citing a recent Ninth Circuit ruling that found the city's "hybrid" elections unconstitutional.

Kelly Lawton, Republican nominee from Ward 2, and Margaret Burkholder, Republican nominee for Ward 4, challenged the election results late Friday in Pima County Superior Court.

They say the results of the Nov. 3 general election should be "annulled and declared lacking any legal force or effect," and that they should be named victors in Wards 2 and 4 over Democratic incumbents Paul Cunningham and Shirley Scott.

Tucson has run "hybrid" city elections since the 1930s. The city is divided into six wards of roughly equal population and each ward is allotted one seat on the City Council. Council members serve four-year terms, with staggered elections every two years in odd-numbered years. A ward primary is open only to voters living in that ward, while the general election is open to voters citywide.

Arizona nonprofit Public Integrity Alliance and several voters challenged the system in Federal Court in April, claiming it denied or diluted votes in violation of the Equal Protection Clause of 14th Amendment.

U.S. District Judge Cindy Jorgenson upheld the hybrid method, but the Ninth Circuit on Nov. 10 found it unconstitutional, in a 2-1 ruling.

"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," Ninth Circuit Judge Alex Kozinski for the majority. "That is the very result the Supreme Court's one person, one vote jurisprudence is meant to foreclose. 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."

In the new lawsuit, the Republicans say: "Because participation in the August 25, 2015 primary elections for the Ward 2 and Ward 4 City Council seats was limited to qualified electors residing in the respective ward, it follows that participation in the November 3, 2015 general election likewise was required to have been limited to qualified electors residing in the respective ward. ...

"Accordingly, the certifications should be annulled and declared as lacking any legal force or effect and Kelly Lawton and Margaret Burkholder should be certified as having the highest number of legal votes for the City Council seats in Ward 2 and Ward 4, respectively," because Cunningham and Scott won "on the basis of illegal votes cast by electors outside the relevant ward."

City Attorney Mike Rankin has asked the Ninth Circuit to extend the city's deadline to file a petition for rehearing and rehearing en banc. The City Council was scheduled to discuss its next move in executive session Tuesday.

Rankin did not immediately return phone and email messages Tuesday.

Lawton and Burkholder claim in their lawsuit that they should be declared winners because they received more votes in their wards.

Cunningham, who won the Ward 2 seat, got 10,179 votes in Ward 2 and 45,296 votes citywide, according to the complaint.

Lawton, his challenger, got 11,513 votes in Ward 2 and 33,231 votes citywide.

Ward 4 winner Scott took 6,533 votes in Ward 4 and 43,824 votes citywide, while Burkholder got 9,143 votes in Ward 4 and 34,611 votes citywide, according to the complaint.

They seek declaratory judgment that participation in the general election was "required to have been limited to qualified electors residing in each respective ward;" a judgment "annulling or setting aside any all certifications of election of Paul Cunningham and Shirley Scott;" and certification that they won the elections in Wards 2 and 4.

They are represented by Kory Langhofer with Statecraft Law in Phoenix.

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