Pub. Integrity Alliance, Inc. v. City of Tucson

• Decision Date: 10 November 2015
• Docket Number: No. 15–16142.,15–16142.
• Citation: 805 F.3d 876
• Parties: PUBLIC INTEGRITY ALLIANCE, INC., an Arizona nonprofit membership corporation; Bruce Ash, an individual; Fernando Gonzales, an individual; Ann Holden, an individual; Lori Oien, an individual; Ken Smalley, an individual, Plaintiffs–Appellants, v. CITY OF TUCSON, a chartered city of the State of Arizona; Jonathan Rothschild, in his capacity as the Mayor of the City of Tucson; Regina Romero, in her capacity as a member of the Tucson City Council; Paul Cunningham, in his capacity as a member of the Tucson City Council; Karin Uhlich, in her capacity as a member of the Tucson City Council; Shirley Scott, in her capacity as a member of the Tucson City Council; Richard Fimbres, in his capacity as a member of the Tucson City Council; Steve Kozachik, in his capacity as a member of the Tucson City Council; Roger Randolph, in his capacity as the Clerk of the City of Tucson, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

805 F.3d 876

PUBLIC INTEGRITY ALLIANCE, INC., an Arizona nonprofit membership corporation; Bruce Ash, an individual; Fernando Gonzales, an individual; Ann Holden, an individual; Lori Oien, an individual; Ken Smalley, an individual, Plaintiffs–Appellants

v.CITY OF TUCSON, a chartered city of the State of Arizona; Jonathan Rothschild, in his capacity as the Mayor of the City of Tucson; Regina Romero, in her capacity as a member of the Tucson City Council; Paul Cunningham, in his capacity as a member of the Tucson City Council; Karin Uhlich, in her capacity as a member of the Tucson City Council; Shirley Scott, in her capacity as a member of the Tucson City Council; Richard Fimbres, in his capacity as a member of the Tucson City Council; Steve Kozachik, in his capacity as a member of the Tucson City Council; Roger Randolph, in his capacity as the Clerk of the City of Tucson, Defendants–Appellees.

No. 15–16142.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 2015.

Filed Nov. 10, 2015.

Kory A. Langhofer (argued), Thomas J. Basile and Roy Herrera, Jr., Brownstein Hyatt Farber Schreck, LLP, Phoenix, AZ, for Plaintiffs–Appellants.

Michael G. Rankin, City Attorney, Dennis McLaughlin (argued), Principal Assistant City Attorney, Office of the Tucson City Attorney, Tucson, AZ, and Richard Rollman, Gabroy Rollman & Bosse PC, Tucson, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding. D.C. No. 4:15–cv–00138–CKJ.

Before: ALEX KOZINSKI and RICHARD C. TALLMAN, Circuit Judges, and LAWRENCE L. PIERSOL,^* Senior District Judge.

Opinion by Judge KOZINSKI

; Dissent by Judge TALLMAN.

OPINION

KOZINSKI, Circuit Judge:

We consider the constitutionality of Tucson's unusual system for electing members of its city council.

FACTS

Tucson's elections are ordinary in many ways. The city is divided into six wards of approximately equal population, and each ward is allotted one seat on the city council. A candidate for city council must run for the seat in the ward where he resides. See Tucson City Charter ch. III, § 1; ch. XVI, §§ 5, 8, 9. From there, things take an odd turn.

In some American cities, council seats are filled at large, with the entire city voting for each seat in the primary and general elections. In other cities, council members are nominated and elected by the residents of particular districts. Tucson splits the difference: Since 1930, the city has used a “hybrid system” that combines ward-based primaries with at-large general elections.

The first step in the hybrid system is a partisan primary. Each ward holds its own primary limited to residents of that ward. The winners of the ward primaries advance to the general election, where they compete against the other candidates nominated from that ward. In the general election, all Tucson residents can vote for one council member from each ward that held a primary during the same election cycle. See Charter ch. XVI, § 9. Thus, a resident of Ward 1 can't vote in the Ward 2 primary, but can vote for one of the Ward 2 candidates in the general election. The parties agree that, once elected, council members represent the entire city, not just the ward from which they were nominated. See City of Tucson v. State, 229 Ariz. 172, 273 P.3d 624, 631 (2012) (“Tucson council members, although nominated by ward, represent the entire city, just as do council members elected at large in other cities.”); see also Dallas Cty. v. Reese, 421 U.S. 477, 480, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (“[E]lected officials represent all of those who elect them ....”); Fortson v. Dorsey, 379 U.S. 433, 438, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) (similar).

Council seats are filled in staggered elections, with three council members elected every other year. Once elected, a council member serves a four-year term. See Charter ch. XVI, §§ 3–4. The council members from Wards 1, 2 and 4 will be elected in 2015, and the council members from Wards 3, 5 and 6 will be elected in 2017. Because only half of the council seats are up for election in any given year, only half of Tucsonans can vote in a primary in each election cycle. And approximately 83 percent of the electorate that votes for any given council seat in the general election has no say in selecting the nominees competing for that seat.

Plaintiffs are five Tucson voters and a non-profit corporation called the Public Integrity Alliance (collectively “PIA”). PIA concedes that the city could use ward-based primaries and ward-based general elections without offending the Constitution. Similarly, the city could use at-large primaries and at-large general elections. But PIA argues that combining these two options into a hybrid system violates the federal and Arizona Constitutions¹ by depriving Tucson voters of their right to vote in primary elections for individuals who will ultimately serve as their at-large representatives. PIA sued the city seeking to enjoin the hybrid system and secure a declaration that the scheme is unconstitutional. The district court ruled in favor of the city. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

We start by resolving a dispute between the parties that has a substantial bearing on our analysis and, ultimately, on the result we reach: Are Tucson's primary and general elections two separate contests, each governed by rules that must be judged independently of one another—as the city contends? Or are they two parts of a single election cycle, which must be considered in tandem when determining their constitutionality—as PIA claims? The difference matters a great deal. If the two elections were separate, PIA's constitutional objections would largely evaporate and this would become a simple case. This is so because there would be no mismatch between the voting constituency and the represented constituency in the two elections. It's only if we view the two elections as one that serious constitutional doubts arise.

Unfortunately, the easy solution is not available because it is perfectly clear that the two contests are not independent. Instead, they are complementary components of a single election. Although the two contests are separated in time by ten weeks, they are entirely co-dependent. Without the primary, there could be no candidate to compete in the general election; without the general election, the primary winners would sit on their hands. Because a candidate must win a primary in order to compete in the general election, the “right to choose a representative is in fact controlled by the primary.” United States v. Classic, 313 U.S. 299, 319, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Thus, the Supreme Court has held that the primary and general elections are a “single instrumentality for choice of officers.” Smith v. Allwright, 321 U.S. 649, 660, 64 S.Ct. 757, 88 L.Ed. 987 (1944) ; see Newberry v. United States, 256 U.S. 232, 284–86, 41 S.Ct. 469, 65 L.Ed. 913 (1921) (Pitney, J., concurring in part) (noting that the primary and general elections are “essentially but parts of a single process”).

Because the primary and general elections are two parts of a “unitary” process, Allwright, 321 U.S. at 660–61, 64 S.Ct. 757, a citizen's right to vote in the general election may be meaningless unless he is also permitted to vote in the primary. If a voter's preferred candidate is defeated in a primary from which the voter is excluded, the voter would never have the chance to cast a ballot for his candidate of choice. Cf. Morse v. Republican Party of Va., 517 U.S. 186, 205, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) (invalidating registration fee for Virginia senatorial nominating convention because the fee limited voters' “influence on the field of candidates whose names [would] appear on the ballot” and thus “weaken[ed] the ‘effectiveness' of their votes cast in the general election itself”); Bullock v. Carter, 405 U.S. 134, 146, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (“[T]he primary election may be more crucial than the general election....”); Classic, 313 U.S. at 319, 61 S.Ct. 1031 (observing that “the practical influence of the choice of candidates at the primary may be so great as to affect profoundly the choice at the general election”); Ayers–Schaffner v. DiStefano, 37 F.3d 726, 728 n. 5 (1st Cir.1994) (noting that “the ability to vote in the general election [is not] a satisfactory alternative for those voters not allowed to vote in the primary, as the candidate of their choice may have been excluded in the preliminary election from which they were barred”).

This case illustrates the point. Although Arizona as a whole generally votes Republican, Tucson generally votes Democratic. This means that the Democratic nominee from each ward will likely win the general election regardless of whether the ward from which he was nominated is principally Republican or Democratic. Indeed, the city's current mayor and all six council members are Democrats. See Tucson City Council Democratic Incumbents Re–Elected, Arizona Public Media (Nov. 6, 2013), available at https://goo.gl/oMkOxi. In most cases, then, the Democratic ward primary is the only election that matters; the general election is a mere formality. Even if electing the Democratic nominee is not automatic, there is no dispute that the Democratic nominee enters the general election with an enormous advantage. Thus the vote in the primary—and particularly the Democratic primary—has a commanding influence on the outcome of the general election. Yet five-sixths of Tucson's voters have not even a theoretical possibility of participating in the primary that will, for all practical purposes, determine who will represent them in the city council.

The Supreme Court has indicated that, “[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote” no matter where “their home may be in that geographical...