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

• Decision Date: 02 September 2016
• Docket Number: No. 15–16142,15–16142
• Citation: 836 F.3d 1019
• Parties: Public Integrity Alliance, Inc., an Arizona nonprofit membership corporation; Bruce Ash, an individual; Fernando Gonzales, an individual; Ann Holden, 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

836 F.3d 1019

Public Integrity Alliance, Inc., an Arizona nonprofit membership corporation; Bruce Ash, an individual; Fernando Gonzales, an individual; Ann Holden, 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 En Banc June 21, 2016 San Francisco, California

Filed September 2, 2016

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

Dennis P. McLaughlin (argued), Principal Assistant City Attorney; Michael G. Rankin, City Attorney; City Attorney's Office, Tucson, Arizona; for Defendants–Appellees.

Rebecca Glasgow and Callie A. Castillo, Deputy Solicitors General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Amici Curiae Washington Secretary of State, Washington State Association of Counties, Association of Washington Cities, and Washington Association of County Officials.

Jennifer M. Perkins ; John R. Lopez, IV, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Amicus Curiae State of Arizona.

Before: Sidney R. Thomas, Chief Judge, and William A. Fletcher, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard R. Clifton, Consuelo M. Callahan, Morgan Christen, Jacqueline H. Nguyen, John B. Owens, and Michelle T. Friedland, Circuit Judges.

OPINION

BERZON

, Circuit Judge:

The structure of municipal governments and methods of selecting municipal officials vary greatly across the country. Such diversity is a manifestation of our federal structure, which ideally, though not always, “allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’ ” Bond v. United States , 564 U.S. 211, 221, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011)

(quoting Gregory v. Ashcroft , 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ). This case requires us to consider the constitutional validity of one municipality's chosen election system.

Public Integrity Alliance, a nonprofit corporation, and four Tucson voters (collectively referred to as “Public Integrity Alliance”) challenge as unconstitutional the City of Tucson's system for electing members of its city council. We hold that Tucson's system does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and so affirm the district court's order awarding judgment in favor of the City and its co-defendants.

BACKGROUND

I.

Tucson is one of nineteen charter cities in Arizona. City of Tucson v. State , 229 Ariz. 172, 174, 273 P.3d 624 (2012)(en banc). Under Arizona's constitution, charter cities are municipalities of more than 3,500 people that have elected to “adopt a charter—effectively, a local constitution—for their own government without action by the state legislature.” Id.

Charter cities enjoy enhanced autonomy with regard to government structure and the selection of their city officials. See id. ; Strode v. Sullivan , 72 Ariz. 360, 368, 236 P.2d 48 (1951).

Since adopting its current city charter in 1929, Tucson has used a “hybrid election system” for electing members to its city council. City of Tucson , 229 Ariz. at 175, 273 P.3d 624

; Tucson City Charter, ch. XVI, § 9. Tucson's city council election system operates as follows: Tucson is divided into six wards of approximately equal populations. Id. ch. XVI, § 8. Each ward is allotted one seat on the six-member city council. Id. ch. III, § 1. Council members serve four-year terms and are elected on a staggered basis, with three council members elected every odd-numbered year. Id. ch. XVI, §§ 3, 4. For example, elections for the seats allotted to Wards 1, 2, and 4 were held in 2015, and elections for the seats allotted to Wards 3, 5, and 6 will be held in 2017. A candidate for city council must reside in the ward from which she seeks to be nominated. Id. ch. XVI, § 5.

Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. First, each ward with a city council seat up for election conducts a partisan primary to select one nominee from each recognized political party. Persons who reside within that ward and are registered with a political party qualified for representation on the ballot may vote in their party's ward-level primary. Ariz. Rev. Stat. § 16–467(B)

; Tucson City Charter, ch. XVI, § 9. A person registered as an independent, as having no party preference, or as a member of a party not entitled to representation on the ballot may vote in any one party's ward-level primary. Ariz. Rev. Stat. § 16–467(B).

The top vote-getter from each party eligible for inclusion on the ward-level primary ballot then advances to an at-large general election, where she competes against the other candidates nominated from the same ward. Every Tucson voter may vote for one candidate from each ward that held a primary—that is, all voters may vote for one candidate for each of the three council member seats appearing on the general election ballot. Tucson City Charter, ch. XVI, § 9. Thus, when city council seats for Wards 1, 2, and 4 were up for election in 2015, residents of Ward 1 were permitted to vote in the primary only for a candidate from Ward 1, but then were permitted to vote for candidates from Wards 1, 2, and 4 in the general election. Once elected, council members represent the entire city. See City of Tucson , 229 Ariz. at 179, 273 P.3d 624

.

Tucson's voters twice have affirmed their commitment to the system. They rejected a proposal to change from at-large to ward-based general elections in 1991 and disapproved a proposal to change from partisan to non-partisan elections in 1993. Id. at 175, 273 P.3d 624

.

Analogous election systems can be found in at least two other states in our circuit. Washington employs a similar system to elect county commissioners in 32 of its 39 counties and has done so for nearly a century. See State v. Bd. of Comm'rs of King Cty. , 146 Wash. 449, 463, 263 P. 735 (1928)

, overruled on other grounds by

Lopp v. Peninsula Sch. Dist. No. 401 , 90 Wash.2d 754, 585 P.2d 801 (1978) (en banc); Wash. Rev. Code §§ 36.32.040, 36.32.050, 36.32.0556. Several Washington cities, school districts, and special purpose districts also use similar hybrid election systems. See Wash. Rev. Code § 35.18.020

(cities); § 28A.343.660 (school districts); § 53.12.010 (port districts); § 54.12.010 (public utility districts); 52.14.013 (fire protection districts); § 57.12.039 (water-sewer districts). In Nevada, at least two cities, Sparks and Reno, conduct “hybrid,” albeit nonpartisan, city council elections, with the primary election by ward and the general election city-wide. See Reno City Charter, Art. V, §§ 5.010, 5.020; Sparks City Charter, Art. V, §§ 5.010, 5.020.

II.

Public Integrity Alliance alleges that Tucson's hybrid system runs afoul of the Equal Protection Clause of the Fourteenth Amendment¹ because it violates the “one person, one vote” principle, relying mainly for their analysis on Gray v. Sanders , 372 U.S. 368, 380–81, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)

. The core of their argument is that Tucson voters currently are denied the right to participate in primary elections for all but one of their representatives on the city council. Because city council members represent Tucson as a whole, Public Integrity Alliance contends either (1) every Tucson voter must be permitted to vote in each ward's primary, or (2) Tucson must switch to a purely ward-based system, in which voters for both the primary and general elections for a given council seat are limited to voting for the representative from their own ward and have no voice in selecting candidates from other wards. In other words, Public Integrity Alliance's position is that an entirely ward-based or entirely at-large system of voting would be permissible, but the combination of the ward-based primary and at-large general is constitutionally fatal.

Public Integrity Alliance filed a complaint in federal district court seeking to enjoin the operation of Tucson's hybrid system and secure a declaration that the scheme is unconstitutional. The district court held Tucson's system constitutional and so denied Public Integrity Alliance's request for relief.

A divided three-judge panel of this court reversed, holding that by denying out-of-ward voters the ability to vote in the primary elections of other wards, the hybrid system violates the one person, one vote guarantee embedded in the Equal Protection Clause. Pub. Integrity All., Inc. v. City of Tucson , 805 F.3d 876, 883 (9th Cir. 2015)

. We took the case en banc and now affirm the district court. Tucson's hybrid voting system for its city council elections does not violate the Equal Protection Clause.

STANDARD OF REVIEW

“[T]he Constitution grants to the States a broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, which power is matched by state control over the election...