Two of the three Republican candidates who lost their bids for the Tucson City Council last month got their day in court earlier this week.
Attorneys for Margaret Burkholder, who lost to Democratic incumbent Shirley Scott in Ward 4, and Kelly Lawton, who lost to Democratic incumbent Paul Cunningham in Ward 2, told Pima County Superior Court Judge Gus Aragon that the Republican duo were cheated of their rightful victory because they won their respective wards.
And because a panel of Ninth Circuit Court of Appeals judges have ruled that the city’s current system of nominating candidates in ward-only primaries but allowing all voters to cast ballots in citywide elections is unconstitutional, the results of the Nov. 3 election should be thrown out.
“There has been an unconstitutional election,” said attorney Kory Langhofer, who is representing the GOP candidates. “There must be a remedy.”
Langhofer is also the attorney for the Public Integrity Alliance, a group of Republicans who sued in federal court earlier this year to have the city’s current election system declared unconstitutional. While Langhofer lost at the district court level, a Ninth Circuit Court of Appeals panel voted 2-1 just one week after the city’s election that the city’s system did violate the one-man, one-vote rule of the 14th Amendment.
The city voted earlier this month to ask the full Ninth Circuit panel of judges to review the three-judge panel’s decision, so a final decision in the case has yet to be issued.
Attorneys for the city and the Democratic council candidates who prevailed in last month’s election told Aragon that because the legal decision remains on appeal, the Republican candidates don’t have a legal leg to stand on.
“There is no finality,” said Senior Assistant City Attorney Dennis McLaughlin.
But even if there were finality to the Ninth Circuit’s order, McLaughlin said it wouldn’t affect the election that took place before the the Ninth Circuit issued its ruling because state statutes only allow election challenges based on laws in force “at the time the election occurred” and when voters cast their ballots, the city had a district court order in place saying the system was constitutional.
“We had a legal election,” McLaughlin said.
And even if the judge concluded that the Ninth Circuit’s order did require a new election, McLaughlin added, there’s no reason to believe that the city would need to move to ward-only general elections. He said that the Ninth’s Circuit’s order actually leaned toward requiring the city to move to a citywide primary system and a citywide general election.
“If you were to order a do-over, we would have to have a new election and both (primary and general elections) would be citywide,” McLaughlin said.
McLaughlin also argued that the challenge came too late because the Republican candidates signed up to run under the current rules and even accepted public money for their campaigns based on those rules.
“If you are going to challenge an election, you have to do it before the election happens,” McLaughlin said. “You can’t come in afterwards.”
Langhofer conceded that no final decision has been made, but argued that the current call by the appeals court is all that matters in this court case. And, he added, the Republicans couldn’t have challenged the system because the federal court hadn’t issued its order declaring the current system unconstitutional.
Aragon said he’d make a ruling by Monday, Dec. 7.
After the hearing, City Attorney Mike Rankin said he was “anxiously awaiting the judge’s decision.” Burkholder said she felt the same way.
“I’m not a patient person,” she said. “I’m looking forward to Dec. 7.”
Lawton said the legal challenge “is not a sour-grapes petition. It’s equal rights for equal citizens in the city of Tucson.”
This article appears in Nov 26 – Dec 2, 2015.
Lawton and Burkholder are simply sore losers. They agreed to run in an election under these rules, and could’ve sued at any time before the election. Only after they lose do they cry foul. Pathetic and just what we’ve come to expect of the GOP. Any candidate who didn’t denounce signs around town ripping Tucson has no place on our city council, representing our city. SORE LOSERS LOSERS LOSERS.
Had they sued before the election, would the election have been delayed? They did not have the ability to sue until the tally showed they had won, and quite frankly the local schemers have not been challenged on this vote fraud strongly enough. It is way past time for change around here.
If the voting process was found to be unconstitutional after the election, then it was unconstitutional before the election. rskisi, you know that if they were libs that y’all would be tying up traffic with protests and other whiny, disruptive, destructive behavior.
The Republican party is a failed party, Being so radical and extreme it has lost votes of the intelligent voters. We want leaders who have the smarts to lead and not pass radical laws only, like what happens in Phoenix now. We also see that Republicans women tend to be more radical then most of the males in Phoenix. They continue to try to pass the most extreme bills, many of them failing. I can see now why so many females are turning to ISIS, they being extreme.
The Republicans in AZ and thru out the nation is hijacking elections, either by districting fraud, taking away voters right to vote, saying election are unconstitutional. Since when do the Republicans really rule by the Constitution? There only mission is to win any way they can, then destroy the nation, state and take away rights of the people. Our real concern in America is not ISIS but the Republicans.
Kool Aid Kool Aid tastes great. Looks like you had some, couldn’t wait?
— Lawton said the legal challenge “is not a sour-grapes petition. It’s equal rights for equal citizens in the city of Tucson.”
Yeah, it’s just a coincidence that the losers are filing the suit.
I would have liked to reverse several of the decisions that I made during my life, not to mention those that were made by others for me. Despite the influence of all the modern media and loudmouthed talking heads, elections can still be disappointing and unpredictable events, subject to stochastic shocks, that threats of legal action cannot change.