Earlier this year, the Arizona Public Integrity Alliance and a number of individuals sued the City of Tucson over its hybrid election process for city council members. The district court decided in favor of the City of Tucson, but a three judge panel at the 9th Circuit Court of Appeals reversed that decision on Nov. 10. So, at this point in the legal process, Tucson’s method for electing council members has been judged unconstitutional, though this finding is probably not the last word.
The majority of the 9th Circuit panel contends that both the primary and the general are in fact one election process. There is a primary part to select the candidates, and a general part that selects councilmen. They object to changing the qualifying boundaries from primary election to the general election—from residing in a specific ward to residing in the city at large. Both sides agree that council members do, in fact, represent the city as a whole once in office. The majority asserts that that being the case the primary voter has a greater influence in the process than those living outside a given ward and cannot vote for that ward primary candidate, thereby violating the 14th amendment.
The dissent asserts that primary elections are treated differently in many jurisdictions, and that states and municipalities have traditionally been given wide latitude in running elections. They also argue that it is a stretch to apply the “one man one vote” principle of the 14th amendment to this case.
The politics of this issue are pretty straight forward. Democrats enjoy a registration advantage over Republicans of around 5-to-3. This means that with citywide elections they can elect Democrats to wards that are predominantly Republican. The recent election is an example. Of the three winning Democrat council candidates, only Regina Romero won in her ward. In a ward only election scenario, both Democrats Paul Cunningham and Shirley Scott would have lost to Republicans Kelly Lawton and Margaret Burkholder respectively. Obviously, Republicans would love a change to ward only elections.
Many fans of ward only elections are giddy over this most recent decision, but there is more than one fix to the constitutional problem as laid out by the 9th Circuit panel. Were the primary elections made citywide, the problem of voter advantage and changing of the geographic boundaries would also be fixed.
So, from the people’s perspective, which of the two fixes would be better? There is a lesson to be found in the political career of Harvey Milk. Milk was a businessman and member of the San Francisco Board of Supervisors—the equivalent of a Tucson City Council member. He and Mayor George Moscone were assassinated on Nov. 27, 1978, by former supervisor Dan White.
Milk moved to San Francisco in 1972 and opened a camera shop in the Castro district. He was part of a nationwide migration of gay men to San Francisco, particularly the Castro neighborhood, during that period.
His first run for supervisor was in 1973. He was wildly popular in the Castro, the residents of which voted for him overwhelmingly, yet he lost the election. He ran again in 1975; he worked tirelessly at building his own grassroots base that extended beyond the gay community to firefighters, construction unions and the Teamsters. He picked up the moniker “The Mayor of Castro Street.” Still, he lost again.
At that time, elections for San Francisco districts were held citywide, as the elections are today in Tucson. So, the man who lived and worked in his district, and whose neighbors wanted him to represent them, was denied the chance by a system that allowed the entire city to dictate who would represent the Castro district. It appeared that, with the cards stacked against him, he would never hold elective office.
However, by 1977, the deck had been shuffled: District elections were no longer citywide, but by district. Harvey Milk ran again and won handily. Finally, the residents within each district in San Francisco got to pick their own representative. What a concept!
Those who argue the contrary often point out that a City Council member’s vote affects the whole city, not just the ward. This, of course, is true. But it is also beside the point: The issue is representation, not the effects of the representation. If the effects were an overriding concern, we would have nationwide elections for federal senators and representatives—since their votes on federal bills usually affect the country as a whole. We do not, and that is because the duty of those officeholders is to represent their constituents.
Today, our city wards function more as a tool for dividing up the workload of constituent service than as distinct communities of interest. While we all identify as Tucsonans, our city is not quite as homogeneous as our council elections suggest. Does a resident of Ward 6 (midtown) have the same concern for maintaining a semi-rural lifestyle as a resident of Ward 1 (westside)? Does someone living in Ward 4 (southeast) have the same issues with student housing as someone living in Ward 3 (north of the UA)?
Whether one considers the practical notion of wards actually having their own interests, or the ethical notion of representation, residents of a ward should be able to choose their own representatives—and not those of the other wards.
This article appears in Nov 12-18, 2015.
Makes sense.
Based on Tucson electioneering there is no need for wards. They do not allow you to elect representation for your ward. It also eliminates diversity based on south and west side party affiliation.
David w,
Historically the South and West parts of the city have been the least represented parts of the city, precisely because of our city wide elections. This is why they have the worst infrastructure, lowest number of parks, the highest concentration of industrial facilities, the main dump, the airport, and so much more crap that has been dumped on them over the years. Sorry to burst your conspiracy theory brown bigotry bubble….
and Mr. Hoffman,
Wasn’t there state wide legislation a few years ago which attempted to eliminate national party designations on ballots for municipal candidates? Was this killed by the courts? Is this at all related to what is happening now or maybe relevant again?
You need to get out more and look around. The airport? Really? When it was built in the 40s there wasn’t even an eastside. Diversity of party affiliation has nothing to do with race. Why do you feel the need to go there?
I am not an attorney. I am not a resident of the City of Tucson. Nevertheless, I am a concerned citizen with an interest in the governance of the city. I have previously expressed orally or in writing my thought that the city ought to change its charter in order to elect as well as nominate Council members by ward.
I’ve read the opinion of Judge Kozinski and the dissent by Judge Tallman and find both a bit disappointing, but my dissatisfaction would not lead me to appeal the decision that finds Tucson’s peculiar hybrid council election system unconstitutional. I think the city should refrain from filing an appeal and instead spend the money more prudently in commencing a wide open conversation aimed at changing the charter to enact an election system with which everyone can live relatively contentedly.
Judge Kozinski has pointed in one direction with reasoning which I find decidedly unpersuasive. His argument that Council members represent the whole city and therefore might best be elected by the whole electorate is counterindicated by the reality that Council members serve as the representatives and in a sense the ombudsmen of portions of the city — wards — in which they reside and maintain offices and staffs. Of course they work together on behalf of the entire city but each has special concern for his or her ward. Kozinski’s logic would seem to demand that our legislators be elected statewide rather than by district, since as a body they represent the state. He seems to miss the distinction between the responsibility of the individual member of the Council and the responsibility of the Mayor and Council as a whole. Every day each Council member lives that distinction and it’s reasonable that they own it, even to the point of admitting that they ought to be able to win an election limited to their own ward.
Judge Tallman appears to think the city conducts two separate elections every two years and that there is no need for them to have identical electorates. He seems to recognize an even greater separation than does the charter between the primary and general elections. While it might be encouraging to any who would resist change to think his view would prevail in an appeal, I’d suggest you read his dissent carefully. I don’t think you’ll find it persuasive.
For myself, I find few if any arguments by appellants, respondents or judges compelling. Republicans in Tucson and Pima County are not a protected minority. Council members are not primarily representative of the whole city. The electorate of Ward One is not deprived of a vote because it can only vote in a primary for its representative and cannot vote in the Ward Two primary. The general election votes of Republicans in Ward Four are diluted because voters in the rest of the city are able to vote for Ward Four’s Council member.
Of the options open to us now, I believe appeal to be the worst. Next would be a decision taken in council to offer the electorate a charter change to citywide primary elections. This would be seen as an effort to retain the status quo, in which it is difficult — hardly impossible — for the minority party to win any council seats. Better would be an open dialogue, hopefully leading to consensus on a charter change to be presented to the voters at the next feasible opportunity. I’ve written ‘a charter change’ because the notion of placing two or more alternatives on the ballot would probably be confusing and perhaps lead to an inconclusive result.
Thanks for such in depth thoughts on this. I could never understand why the voters in the Ward were over ruled by those that did not live there. I did not think there was a request for “protected minority” status. But the opposite would also hold true if Tucson were Chandler, Mesa or Gilbert. The Republican voters would over rule your democratic candidate because of sheer numbers of registered voters.
The time to fix this was 50 years ago. What took so long? It has been part of the charter since 1929…and wrong.