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 Friday 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 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. “A balanced council, elected by a fair and constitutional process, will benefit the entire community.”

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 and was confident that he could have won.

“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 via email that 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,” Kozachik said via email. “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.”

This article appears in Nov 12-18, 2015.

Getting hassled by The Man Mild-mannered reporter

19 replies on “Councilman Cunningham Says GOP Challenger Who Wants Him To Leave His Seat Vacant “Must Be Out of His Mind””

  1. Of Course Councilman Cunningham won’t leave his seat he is a scumbag. Courts have declared your election to office illegitimate and unconstitutional. I mean why would a elected official want to uphold the constitution of the United States right? Or did you forget your oath to office? You know when you raised your right hand and recited the oath word for word.

  2. 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.
    Are you still going to not leave your seat after it was declared unconstitutional under our 14th Amendment? Didn’t you take an oath? Your true colors are out and you are not fit to be in the seat now by your own words.

  3. Tucson democrats respecting the constitution? Since when? These are progressive marxists, no constitution is going to stop them.

  4. Come on Paul nobody is saying that you didn’t run a clean campaign. But the courts ruled it is a violation of the US Constitution. You could make more working at Home Depot, so what is the big attraction that causes you to call other people crazy?

    And you Kozachic are much too generous to identify yourself as a good candidate. The opposition at that time was simply much worse.

    The courts have identified the problem. Let’s fix it now, not when you get ready.

  5. “Our current system disregards the representation chosen by the voters.” Agree! It is obvious that certain council members do not represent the view point or desires of everyone in the City. That is why it is important that people living in a specific ward have the type of representation that reflects their values and views. People in heavily leaning Democratic areas of our City may agree with Ms. Romero when she referred to those willing to cross a union picket line as “scabs” and the opposite I imagine would also be true. Many in the Republican leaning areas of town were probably highly offended by the use of the remark.

    As to “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.” Many on both sides of the fence believe Mr. Kozachik should have rescinded his seat once he switched political parties. Many people still vote based on party affiliation and this type of change left many with sour grapes.

  6. This is not the first time in Tucson history that elections have turned out like this. The city did not fall, nor did the City Hall crumble. Note that the justices did not say which solution was the one which should be followed. We could have EITHER ward only, or city-wide only. That is yet to be decided.

  7. I am also struck that although Scott has twice not carried her ward in the general, she still has an amazing record of putting the needs of her ward into the public eye and the public budget. This was not happening until she was elected the first time and began a process of exposing city leaders to the burgeoning east side where not one dollar of public money was being spent prior to that time.
    Scott has served her ward, and her city, admirably over the years, and will continue for this term to do so.

  8. We will fix Tucson’s city council election rules when the Repubs fix their gerrymandering of the entire state.

  11. Hey Cunningham, have a few and go find some other women to hassle. You’re not doing the city much good.

  12. For Republicans, they worship the Constitution when it is convenient. The Second Amendment has nothing to say about well regulated militia for example. Make sure you show ID when you go to church or shoot your gun at the firing range. To prevent fraudulent religion or gun shooting.

  15. As the candidates all agreed to run under the existing system, their loss is irrelevant, even in the face of the court decision. I seriously doubt they’d be stepping down had any of them claimed victory.

  17. I’ve read the decision written by Judge Kozinski and the dissent by Judge Tallman, issued following the Tucson city election. Neither document says a word that indicates the election should not stand; they focus on the unconstitutionality — or not — of the system which calls for ward nominations and citywide elections. I see no basis in the decision of the Ninth Circuit for disallowing an election which has already occurred. I disagree with Council Member Cunningham regarding an appeal of that decision; I agree with him that no one elected by the voters of the city under the existing system should resign or decline to accept the results of that election. And I suspect he’s correct in surmising that neither candidate who won a ward but lost citywide would have declined to accept election had they won. By all means let’s change the system as quickly as the voters of the city can do so, but in the meantime let’s try — those who are of voting age — to act like adults.

  18. Our system now is superior to having it be ward only or general only. It accomplishes the balance needed between making sure each ward’s interests are served, while also making sure the best interests of the city are served. If we are forced by poor-loser Republicans to choose between ward only or general only, then the only logical choice would be general only. If we were to go with ward only, the City Council would never be able to come to agreement on anything… esp. since most Republicans labor under the arrogant illusion that they are always right and no one else is ever right, and are they never willing to compromise for the good of anyone or anything but their own selfish short-sighted greedy interests! They have made this very clear on a nationwide basis…. blackmailing the entire country by threatening to shut down the government over one single issue on which they are in the minority .

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