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.”
This article appears in Nov 19-25, 2015.
Republicans alleging the election system is unfairly discriminatory, and suing in federal court under the Voting Rights Act of 1965? What’s wrong with this picture?
Seriously, they may succeed in changing the local election system, and that’s probably a good thing – some wards will generally elect Democrats, and some will generally elect Republicans, which will make the Council more representative of all voters in the City of Tucson. I’m a Democrat, and I always cheer for my team, but the type of system Tucson uses has often been used to exclude minority (usually Democratic) candidates from City Councils, and the Voting Rights Act should certainly work in favor of fairness. In other words, what’s sauce for the goose is sauce for the gander.
However, I seriously doubt the courts will invalidate the results of this election. This litigation would be more likely to change the way future elections are conducted.
Agreed. But it is a start. Now if the USAG is true to her word she may pursue the City for it’s illegal sanctuary city status which violates federal law.
We can continue to be governed by law breakers.
gop=whiney ass, mofo’s POS!!!!
Let’s change to ward-specific council elections and eliminate the complaints that the current system isn’t fair and also the excuses losing candidates have used, most recently in this month’s election, that they would have won if we had had election by ward. Coming from candidates who ran pretty poor campaigns, the excuse isn’t persuasive.
I have issue with the title of the story Jim stated that the constituents lost their seats by 11 percentage points. which it leaves people in the ward unrepresented which is what the 9th district court of appeals said. They quoted the 14 amendment the liberals just get so infuriated when they are asked to level play by the same rules that brought us deregulation of schools TUSD.
Franklymydears. One values is ones values, not to be embraced by all and equal protection is very persuasive. I know so many that have been protected by it. To cast aside for a matter of convenience is absurd.
I would love to see city wide or ward elections. The way the wards are drawn up now will have to be redrawn they were drawn to gerrymander the democrats favor. The wards would have to represent the people of the City equally we cant have it like it is now. Where on ward is only 5% of the population and another is 30%.
Jeffery P; Is it my understanding that you favor might has right, just as long as it’s your right. Anything else is oppressive so I guess we can conclude why the voting rights act was implemented. As well as the 14th amendment. However am I to understand I can throw this aside if I am the might?
What we need as a city is what Habermas termed, ideal speech situations. Dialogue is needed because the health and well-being of every citizen impacts every other citizen and false dichotomies and labels like Republican or Democrat, rich or poor, business owner or employee, etc., merely allow us to ignore the nature and reality of the interconnection and interdependence inherent in a community.
Instead of discussing issues we tend to throw around labels and in choosing “teams” and parroting party lines we let opportunities to discuss reality slip by. I’m on Tucson’s team, and I’m afraid that until we open ourselves up to true dialogue and to the fact that it isn’t “us or them” it doesn’t matter who gets elected.
If we remove the false dichotomy, the gerrymandering in either “sides” favor becomes moot. I see the current political paradigm of the US as an Hegelian dialectic: two parties control two opposing sides of an argument and thus, control the outcome. I’m tired of flipping a coin and getting stiffed no matter the result.
I’m not perfect and don’t know everything and I’d want to discuss the ward/citywide election issue in a public meeting prior to voting.
…and now Kozachik is trying to breath life back into the Sonoran Corridor Bond before we comply with the court’s decision on illegal elections in Tucson.
Force them onto the same ballot and the Corridor will get the same results. Bring jobs and show the need before we give you any money. Even the RTA is now floating the idea of stealing funds from other projects as the revues were actually over stated and those projects can not be completed. More misrepresentation which erodes public confidence.
And animal crossings costing millions and millions of dollars? Stop this nonsense. We have homeless that need food. Share the roadkill.
Republicans will go to any extent to hijack an election. Whether its thru redistricting or saying an election is not constitutional. When will the people wake up to the Republican party and how it is hijacking communities, states and this nation. Our judges are making decisions across this nation that are political and not the law. Wake up voters to the GOP. It is a party of CRIMINALS
Actually I voted for those 2 Republicans candidates, because Tucson council needs changed. The current council is NOT growing the city, but they act as the voice of their wards only. We do need city wide elections and not wards. Voting for Republicans was the most difficult decision for me, knowing they are the most criminal party ever. But Tucson does need change and without a new council Tucson will continue it decline.