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Court Pleading 

After losing this year’s Tucson City Council election, GOP candidates hope a judge will hand them a victory

click to enlarge “I am not giving up my seat,” says Councilman Paul Cunningham.

Sydney Richardson

“I am not giving up my seat,” says Councilman Paul Cunningham.

In the wake of a federal appeals court decision last week declaring the city of Tucson's election system unconstitutional, two Republican candidates who lost their campaigns for City Council by at least 11 percentage points said they were filing suit to overturn the results of the Nov. 3 election.

Kelly Lawton and Margaret Burkholder, who lost citywide to incumbent Democrats Paul Cunningham and Shirley Scott, said that because they won within their eastside wards, the council seats should remain vacant until the courts and voters sort out how to change the way Tucson elects council members.

"The citizens of Tucson demand fair and equal representation," Lawton said in a statement to the press. "Our current system disregards the representation chosen by the voters."

Cunningham dismissed Lawton's argument.

"I'm not giving up my seat," said Cunningham, who won by roughly 12,000 votes citywide but lost by about 950 votes inside his own ward. "I ran a clean race under the proscribed rules. Now all of a sudden (Lawton) wants to change the rules for him. He must be out of his mind."

The GOP team's legal action came after a 2-1 decision by a Ninth Circuit panel of judges that declared that Tucson's current system of electing City Council members in primaries in which only ward residents can cast a ballot and then switching to general elections where all members of the city can vote violates the "one-man, one-vote" Equal Protection Clause of the 14th Amendment.

The majority justices wrote that they "cannot endorse an election system that encourages at-large representatives to prioritize kissing babies and currying favor in their home wards over the interests of their constituents who happen to live in other parts of the city. As the Supreme Court itself has noted, an at-large representative 'must be vigilant to serve the interests of all the people in the [city], and not merely those of people in his home ward.'"

The decision indicates that Tucson either needs to move to citywide primaries and citywide general elections or ward-only primaries and ward-only general elections.

Tucson's election system has long been criticized by Republicans and some local business leaders because Democrats have an overwhelming voter registration across the city, but it has stood up to previous court challenges and Tucson voters have turned down previous efforts to amend the Tucson city charter to go to ward-only elections.

And Republicans have won in recent years when competing for open seats: Bob Walkup served as mayor from 1999 to 2011; Kathleen Dunbar served one term in the heavily Democratic Ward 3 from 2001 to 2005; and Fred Ronstadt served two terms from 1997 to 2005 in the heavily Democratic Ward 6.

Burkholder, a Vail School Board member who lost citywide by a 11 percentage point margin, said she wanted to take legal action because the "issue at hand is not a partisan issue, but a constitutional issue."

"One person, one vote is clearly identified by the 14th Amendment and is completely lost in Tucson's process," Burkholder said in a statement to the press.

The Tucson City Council is expected to appeal the Ninth Circuit's decision, although some members are open to the idea of asking voters if they want to change the system.

Cunningham said he supported an appeal.

"The honorable thing here is to respect the process and respect the results and not allow some activist judge from South Dakota who is on the circuit court to make a decision about Tucson politics," Cunningham said.

Cunningham defended the current system, saying that it made him responsive both to his ward's constituents and the city as a whole. He said that by changing it to either citywide primaries or ward-only general elections, the city would be losing out a system that forces council members to be responsive to both the needs of their wards and the needs of the city as a whole.

"You're going to set up situations where you are only thinking about the city or only thinking about your ward," Cunningham said. "You're not balancing it with both. And that's what the beauty of our system is—you've got to work for the betterment of your ward and you have to work for the betterment of the entire city."

But he said he would have run a different kind of race if it had been a ward-only contest.

"It's a totally different race to run," Cunningham said. "Could have picked up 450 votes? Well, I wouldn't have spent all that money sending to citywide Democrats."

Mayor Jonathan Rothschild, an attorney himself, said that the city didn't have legal authority to ignore the results of an election as the Republican candidates are asking.

He said the council members would be sworn in for new terms on Dec. 7 "unless there's a court order to the contrary. I cannot imagine on what basis a court would issue such an order."

Rothschild said the Ninth Circuit's ruling "made clear that it is the voters who must decide between citywide or ward only elections, and that decision would apply to future elections."

Councilman Steve Kozachik, who made history as the only Republican in three decades to knock an incumbent Democrat off the city council when he won the Ward 6 seat in the 2009, was dismissive of the GOP candidates' legal action.

"Courts aren't going to entertain a 'sour grapes' protest," said Kozachik, who switched to the Democratic Party during his first term. "If anybody felt the process was illegal, the time for them to have filed suit was before filing papers to run in the election."

Kozachik pointed out that he won office as a Republican in 2009

"I ran as a Republican back in 2009, lost my ward and won the election," he said. "I'm the bad example they don't want to admit can happen with good candidates, and a strong campaign backed by an engaged electorate."

More by Jim Nintzel

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