En Banc Court OK’s Tucson Primary System

PHOENIX (CN) — A hybrid election system for the city council of Tucson, Arizona, does not violate the one-person, one-vote principle of the U.S. Constitution, the Ninth Circuit ruled Friday.

Tucson is divided into six wards of about equal population, with each ward allowed one seat on the council. Ward primaries are open to voters living in that ward, while the general election allows Tucson voters to pick one candidate from each ward that held a primary.

The system drew a lawsuit last year from the nonprofit Public Integrity Alliance and several voters, and the full Ninth Circuit took inventory of the case this summer.

At the en banc hearing in June, an attorney for Public Integrity Alliance and the voters argued that allowing the city to treat the primary and the general elections separately gave the government too much power to discriminate against minority parties. The majority of Tucson voters are Democrats.

"If you can control the geography of the primary, you can control the outcome," Kory Langhofer said.

The 11-judge court was unanimous Friday that decades of law has allowed for restrictions in primary elections that would otherwise be unconstitutional in general elections.

"These voting restrictions are constitutionally permissible in primaries because primaries serve a different function than general elections: A primary determines which candidates will compete in the general election, a critical stage and one fully subject in its own right to constitutional scrutiny ... but a stage as to which the legitimate state interests are not identical with those pertinent to the general election," according to the 19-page opinion by U.S. Circuit Judge Marsha Berzon.

Langhofer also argued in June's hearing that the city's staggering of elections prohibited voters from electing for their own representatives.

City council members serve four-year terms in Tucson, with staggered elections every two years in odd-numbered years.

Berzon sidelined this argument as well, however.

"Although half of Tucson's residents are unable to vote in a primary in a given election year, that burden quickly evens out over time, as the other half of Tucson's residents will not be able to vote in a primary in the next election year," she wrote. "Ultimately, every voter has an equal opportunity to vote in their own ward's primary every four years and in the general election every two years."

Reached for comment, Langhofer described the court's decision as "disappointing."

The attorney said his team will decide later this month whether to seek review by the U.S. Supreme Court.

Tucson voters have twice rejected proposals to change the system: once in 1991 to change from at-large to ward-based general elections, and once in 1993 to change from partisan to non-partisan elections.

Berzon said the city's "hybrid system represents a careful, longstanding choice, twice affirmed by voters, as to how best to achieve a city council with members who represent Tucson as a whole but reflect and understand all of the city's wards."

City Attorney Mike Rankin said Tucson is pleased with the court's decision.

"We understood that this was an important case because we are defending the charter of the city of Tucson and the election system that the voters of the city of Tucson had chosen themselves," Rankin said. "We are very satisfied that the court's unanimous decision had agreed that system is constitutional, and that it serves an important local government interest."

Today's ruling stands in contrast to a panel ruling by the Ninth Circuit in November that found the system unconstitutional.

That 2-1 ruling sparked a lawsuit by two Republican candidates who lost races for city council, Pima County Judge Gus Aragon found their claims untimely.

"This action challenges the election process," Aragon ruled. "It should have been pursued before the election, not after."

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