Public Integrity Alliance, Inc. v. City of Tucson , 836 F.3d 1019 ( 2016 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    PUBLIC INTEGRITY ALLIANCE,              No. 15-16142
    INC., an Arizona nonprofit
    membership corporation; BRUCE              D.C. No.
    ASH, an individual; FERNANDO          4:15-cv-00138-CKJ
    GONZALES, an individual; ANN
    HOLDEN, an individual; KEN
    SMALLEY, an individual,                   OPINION
    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
    2   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    member of the Tucson City
    Council; ROGER RANDOLPH, in
    his capacity as the Clerk of the
    City of Tucson,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the District of Arizona
    Cindy K. Jorgenson, District Judge, Presiding
    Argued and Submitted En Banc June 21, 2016
    San Francisco, California
    Filed September 2, 2016
    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 by Judge Berzon
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                     3
    SUMMARY*
    Civil Rights
    The en banc court affirmed the district court’s order
    awarding judgment in favor of the City of Tucson and its co-
    defendants in an action challenging the City’s system for
    electing members of its city council.
    Tucson is divided into six wards of approximately equal
    population, and each ward is allotted one seat on the six-
    member city council. Council members are elected through
    a hybrid system involving a ward-level partisan primary
    election and an at-large partisan general election. The top-
    vote getter from each party eligible for inclusion on the ward-
    level primary ballot advances to an at-large general election
    where she competes against the other candidates nominated
    from the same ward. In the general election, every Tucson
    voter may vote for one candidate from each ward that held a
    primary.
    Plaintiffs alleged that the combination of the ward-based
    primary and the at-large general was constitutionally fatal.
    Applying Burdick v. Takushi, 
    504 U.S. 428
     (1992), the en
    banc court held that Tucson’s hybrid system for electing
    members of its city council imposed no constitutionally
    significant burden on the right to vote. The panel further held
    that Tucson advanced a valid, sufficiently important interest
    to justify its choice of electoral system. The panel concluded
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    4    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    that on the facts alleged, the system did not violate the Equal
    Protection Clause’s one person, one vote commitment.
    COUNSEL
    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.
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON             5
    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 (2011) (quoting Gregory v. Ashcroft,
    
    501 U.S. 452
    , 458 (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 (2012) (en banc).
    Under Arizona’s constitution, charter cities are municipalities
    6    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    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 (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; 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
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON              7
    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.
    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.
    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 (1928), overruled
    on other grounds by Lopp v. Peninsula Sch. Dist. No. 401,
    
    90 Wash. 2d 754
     (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
    8     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    § 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 (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
    1
    Public Integrity Alliance’s complaint also alleged that Tucson’s system
    violates the Equal Privileges and Immunities Clause and the Free and
    Equal Elections Clause of the Arizona Constitution. Ariz. Const. art. II,
    §§ 13, 21. Because these state-law claims were not developed in the
    appellate briefing, we consider them abandoned. See Greenwood v.
    F.A.A., 
    28 F.3d 971
    , 977 (9th Cir. 1994).
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON              9
    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 process
    for state offices.” Tashjian v. Republican Party of Conn.,
    
    479 U.S. 208
    , 217 (1986). “This power is not absolute,”
    however. Wash. State Grange v. Wash. State Republican
    Party, 
    552 U.S. 442
    , 451 (2008). “[V]oting is of the most
    fundamental significance under our constitutional structure,”
    Ill. State Bd. of Elections v. Socialist Workers Party, 
    440 U.S. 10
       PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    173, 184 (1979), and state and local government election laws
    that violate the Constitution are impermissible. See Wash.
    State Grange, 
    552 U.S. at 451
    ; Moore v. Ogilvie, 
    394 U.S. 814
    , 818 (1969).
    The Supreme Court delineated the appropriate standard of
    review for laws regulating the right to vote in Burdick v.
    Takushi, 
    504 U.S. 428
     (1992). Burdick recognized that
    governments necessarily “must play an active role in
    structuring elections,” and “[e]lection laws will invariably
    impose some burden upon individual voters.” 
    Id. at 433
    .
    Consequently, not every voting regulation is subject to strict
    scrutiny. 
    Id.
    Instead, . . . a more flexible standard applies.
    A court considering a challenge to a state
    election law must weigh “the character and
    magnitude of the asserted injury to the rights
    protected by the First and Fourteenth
    Amendments that the plaintiff seeks to
    vindicate” against “the precise interests put
    forward by the State as justifications for the
    burden imposed by its rule,” taking into
    consideration “the extent to which those
    interests make it necessary to burden the
    plaintiff’s rights.”
    
    Id. at 434
     (quoting Anderson v. Celebrezze, 
    460 U.S. 780
    , 789
    (1983)).
    Under Burdick’s balancing and means-end fit framework,
    strict scrutiny is appropriate when First or Fourteenth
    Amendment rights “are subjected to ‘severe’ restrictions.” 
    Id.
    (quoting Norman v. Reed, 
    502 U.S. 279
    , 289 (1992)). “But
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                        11
    when a state election law provision imposes only ‘reasonable,
    nondiscriminatory restrictions’ upon the First and Fourteenth
    Amendment rights of voters, ‘the State’s important regulatory
    interests are generally sufficient to justify’ the restrictions.”
    
    Id.
     (quoting Anderson, 
    460 U.S. at 788
    ).
    Applying these precepts, “[w]e have repeatedly upheld as
    ‘not severe’ restrictions that are generally applicable, even-
    handed, politically neutral, and protect the reliability and
    integrity of the election process.” Dudum v. Arntz, 
    640 F.3d 1098
    , 1106 (9th Cir. 2011) (citation and alterations omitted).2
    Our “respect for governmental choices in running elections
    2
    Restrictions that block access to the ballot or impede individual voters
    or subgroups of voters in exercising their right to vote receive different
    treatment from rules establishing an overall, generally applicable electoral
    system. Controversies concerning laws allegedly designed to impede
    voting are not a historical artifact. See, e.g., Brennan Center for Justice,
    Voting Restrictions in Place for 2016 Presidential Election (last updated
    Aug. 10, 2016), http://www.brennancenter.org/sites/default/files/analysi
    s/New_Restrictions_2016.pdf; U.S. Gov’t Accountability Office, GAO-
    14634, Elections: Issues Related to State Voter Identification Laws 44–56
    (2014), http://www.gao.gov/assets/670/665966.pdf. Under Burdick, courts
    are to assess the “character and magnitude” of the asserted burden, the
    proven strength of the state’s interest, and whether the extent of the burden
    is “necessary” given the strength of that interest, so as to ferret out and
    reject unconstitutional restrictions. 
    504 U.S. at 434
    . Recently, in Crawford
    v. Marion County Election Board, 
    553 U.S. 181
     (2008), a majority of the
    Supreme Court agreed that in so doing, courts may consider not only a
    given law’s impact on the electorate in general, but also its impact on
    subgroups, for whom the burden, when considered in context, may be
    more severe. 
    Id.
     at 199–203 (plurality opinion) (recognizing that a voter
    identification law may have disproportionately burdened certain persons,
    but holding that petitioners’ evidence was insufficient to permit the Court
    to quantify the burden imposed on the subgroup); 
    id.
     at 212–17 (Souter,
    J., dissenting) (disagreeing as to the sufficiency of evidence in the record
    regarding the burden imposed on subgroups of voters).
    12   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    has particular force where, as here, the challenge is to an
    electoral system, as opposed to a discrete election rule.” Id. at
    1114.
    Despite Burdick, the City of Tucson asks that we apply
    traditional rational basis review, rather than a balancing and
    means-end fit analysis. Public Integrity Alliance agreed at
    oral argument that if we rejected its position that primary and
    general elections must involve identical electorates,
    traditional rational basis was the appropriate standard of
    review.
    Our case law has not always accurately described the
    Burdick test. In Libertarian Party of Washington v. Munro,
    
    31 F.3d 759
     (9th Cir. 1994), we stated that where plaintiffs
    can demonstrate only a “slight” or “de minimis” impairment
    of their rights, they bear “the burden of demonstrating that the
    regulations they attack have no legitimate rational basis.” 
    Id. at 763
    . But Burdick calls for neither rational basis review nor
    burden shifting. See Ariz. Libertarian Party v. Reagan,
    
    798 F.3d 723
    , 732 n.12 (9th Cir. 2015) (noting the “tension”
    between Munro and Burdick); 
    id.
     at 734–36 (McKeown, J.,
    concurring) (same). To the extent Munro prescribed a
    different standard from the one articulated by the Supreme
    Court in Burdick, it is now overruled.
    DISCUSSION
    I.
    Public Integrity Alliance argues that Tucson’s hybrid
    system severely burdens the Fourteenth Amendment by
    denying Tucson voters the right to vote in the primary
    elections for five out of six of their representatives on the city
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON            13
    council. Central to Public Integrity Alliance’s articulation of
    the alleged burden is their interpretation of Gray v. Sanders.
    According to Public Integrity Alliance, the case before us
    “is controlled by a single, simple maxim of equal protection”
    from Gray: “Once 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 . . .
    wherever their home may be in that geographical unit.” Gray,
    
    372 U.S. at 379
    . Public Integrity Alliance interprets this
    language as a requirement that primary and general elections
    use identical geographical units. Because members of the city
    council represent the entire city, Public Integrity Alliance
    reasons, the relevant “geographical unit” is the city as a
    whole. So, Public Integrity Alliance maintains, Tucson cannot
    constitutionally designate individual wards as the
    geographical units for the primary elections and limit
    participation in a given ward’s primary election to that ward’s
    residents, and then designate the whole city as the
    geographical unit for the general election.
    Gray establishes no such principle. A vote dilution case,
    Gray involved a challenge to Georgia’s system of primary
    elections for statewide officers, a system wholly different
    from Tucson’s hybrid system of primary and general
    elections. Instead of counting individual votes, Georgia
    employed a “county unit system.” 
    372 U.S. at
    370–71.
    Candidates who received the most votes in a county were
    considered to have won the county primary and, with respect
    to the statewide primary, were awarded “county units” in
    proportion to the number of representatives the county had in
    Georgia’s lower legislative body. 
    Id. at 371
    . Georgia’s
    primary election system was thus similar to the electoral
    college used to elect our President, with counties’
    14    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    representation substituted for the state representation in the
    electoral college. The county units were not proportionate to
    the county population, giving residents in one county
    dramatically more influence in the nomination of candidates
    than residents in another county. 
    Id.
    Gray held Georgia’s county unit system violative of the
    one person, one vote principle, because it diluted the voting
    power of certain voters based only on where they happened
    to live. 
    Id.
     at 379–80.3 But Gray concerned only the primary
    election, not a comparison of the geographical units used in
    the primary and general elections. Gray therefore did not hold
    that the same geographical unit must apply to both primary
    and general elections; no issue regarding the relationship
    between the voting basis in the primary and in the general
    election was before the Court. And Gray has never been cited
    for the proposition Public Integrity Alliance puts forward.
    Instead, Gray has uniformly been construed as an unequal
    vote weighting case for a single election stage. See Williams
    v. Rhodes, 
    393 U.S. 23
    , 52 n.5 (1968) (Stewart J., dissenting)
    (Gray “sustained the right of a voter to cast a ballot whose
    numerical weight is the equal of that of any other vote cast
    within the jurisdiction in question.”); Fortson v. Morris,
    
    385 U.S. 231
    , 235 (1966) (“The Gray case . . . did no more
    than to require the State to eliminate the county-unit
    machinery from its election system.”); Lucas v. Forty-Fourth
    Gen. Assembly, 
    377 U.S. 713
    , 744 (1964) (Stewart, J.,
    dissenting) (noting that Gray was irrelevant to a case
    3
    The Supreme Court later clarified that the unit system violated equal
    protection not only because it diluted votes, but because aggregating
    county units rather than individual votes meant that votes for losing
    candidates were effectively discarded, solely because of the voter’s county
    residence. See Gordon v. Lance, 
    403 U.S. 1
    , 4–5 (1971).
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON             15
    “hav[ing] nothing to do with the ‘weighting’ or ‘diluting’ of
    votes cast within any electoral unit”). We decline to take a
    single sentence in a decades-old vote dilution case concerning
    a single stage of an election, read it without regard to the
    issue before the Court in that case, and transform it into a new
    voting rights principle requiring a two-stage election to cover
    the same geographical base at each stage.
    Indisputably, primary elections are state action subject to
    the same constitutional constraints as general elections. See
    Smith v. Allwright, 
    321 U.S. 649
    , 661–62 (1944); United
    States v. Classic, 
    313 U.S. 299
    , 318–19 (1941). And
    primaries and general elections have an obvious and strong
    interconnection; that relationship is why the Supreme Court
    has described them as “a single instrumentality for choice of
    officers.” Allwright, 
    321 U.S. at 660
    . But the recognition that
    primaries are of great significance to the ultimate choice in a
    general election and thus directly implicate the right to vote
    does not mean that primaries and general elections must be
    identically structured and administered.
    In fact, that contention is belied by decades of
    jurisprudence permitting voting restrictions in primary
    elections that would be unconstitutional in the general
    election. See, e.g., Clingman v. Beaver, 
    544 U.S. 581
    , 584
    (2005) (permitting a semiclosed primary, in which only
    people who are registered as party members or independents
    may vote in a party’s primary); Am. Party of Tex. v. White,
    
    415 U.S. 767
    , 786 (1974) (providing that states may establish
    waiting periods before voters may be permitted to change
    their registration and vote in another party’s primary); Ziskis
    v. Symington, 
    47 F.3d 1004
    , 1004–05 (9th Cir. 1995) (holding
    that a law requiring participants in primaries be registered
    with a political party did not violate the challenger’s
    16   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    Fourteenth Amendment right to vote). These voting
    restrictions are constitutionally permissible in primaries
    because primaries serve a different function than general
    elections: A primary determines which candidates will
    compete in the general election, a critical stage and one fully
    subject in its own right to constitutional scrutiny under
    Burdick, but a stage as to which the legitimate state interests
    are not identical with those pertinent to the general election,
    as the partisan primary cases illustrate.
    II.
    Having concluded that Gray does not require that the
    primary and general elections use identical geographical
    units, we now apply the Burdick balancing approach,
    assessing first the burden imposed on Tucson voters by its
    hybrid system.
    All voters in Tucson have an equal right to vote, both
    during the primary election and during the general election.
    Each voter may vote for the candidate of her choice in her
    ward’s primary election. No one may vote in another ward’s
    primary. And each voter may vote in the general election for
    one candidate from each ward with a council member
    position on the ballot.
    That the city council elections are staggered is immaterial
    to the vote denial claim at issue, as Public Integrity Alliance
    admits in its opening brief. Although half of Tucson’s
    residents are unable to vote in a primary in a given election
    year, that burden quickly evens out over time, as the other
    half of Tucson’s residents will not be able to vote in a
    primary in the next election year. Ultimately, every voter has
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                     17
    an equal opportunity to vote in their own ward’s primary
    every four years and in the general election every two years.
    As is constitutionally required, then, every voter in
    Tucson has the same voting power as every other voter in the
    primary and general city council elections. See San Antonio
    Indep. Sch. Dist. v. Rodriguez, 
    411 U.S. 1
    , 35 n.78 (1973)
    (noting that the constitution protects the right “to participate
    in state elections on an equal basis with other qualified voters
    whenever the State has adopted an elective process for
    determining who will represent any segment of the State’s
    population”). There is no unequal weighting of votes, no
    discrimination among voters, and no obstruction or
    impediment to voting. See Holshouser v. Scott, 
    335 F. Supp. 928
    , 933 (M.D.N.C. 1971) (rejecting, in the context of
    judicial elections, a challenge to a state law providing that
    judges should be nominated from their respective districts
    and elected by statewide vote in a general election); Stokes v.
    Fortson, 
    234 F. Supp. 575
    , 578 (N.D. Ga. 1964) (per curiam)
    (same). The burden on Public Integrity Alliance’s Fourteenth
    Amendment rights is far from severe. If a burden exists at all,
    which we doubt, it is at best very minimal.4
    As to the governmental interest justifying whatever
    minimal burden may exist, Tucson has asserted that the
    hybrid system serves to promote local knowledge and
    legitimacy, geographic diversity, and city-wide representation
    on the city council:
    4
    We note that no geographically based vote dilution allegation is before
    us on appeal, nor has minority or other subgroup vote dilution been
    alleged.
    18   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON
    Having nominations through primary
    elections in each ward, using separate ballots
    for each party, allows the party electorates in
    each of those wards to make their own choice
    of a nominee, and simultaneously acts as a
    guarantee for the City electorate as a whole
    that each ward’s nominee actually has support
    among the party members within that ward.
    Moreover, since nominees compete in the
    general election only against other candidates
    nominated in the same ward, . . . ward
    nominations also help assure that each ward
    has a local representative on the council, and,
    conversely, that the Mayor and Council has
    members who are aware of each ward’s
    issues, problems, and views.
    There is no question that Tucson’s interests are important.
    The Supreme Court has approved requirements that a city
    council candidate elected at-large reside in the district with
    which her seat is affiliated. See Dallas County v. Reese,
    
    421 U.S. 477
    , 481 (1975) (per curiam) (upholding an election
    regime providing for countywide balloting for county
    commission members but requiring that one member reside
    in and be elected from each district); Dusch v. Davis,
    
    387 U.S. 112
    , 117 (1967) (same). Candidate-residency
    requirements promote a similar interest to the one Tucson has
    articulated: ensuring local representation by and geographic
    diversity among elected officials. By holding ward-based
    primaries in addition to maintaining a candidate-residency
    requirement, Tucson is working to ensure that the candidates
    nominated in a given ward actually have the support of a
    majority of their party’s voters in that ward, a conclusion that
    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON               19
    may not always follow from a candidate-residency
    requirement alone.
    Tucson’s hybrid system represents a careful, longstanding
    choice, twice affirmed by voters, as to how best to achieve a
    city council with members who represent Tucson as a whole
    but reflect and understand all of the city’s wards. It is, in
    other words, the product of our democratic federalism, a
    system that permits states to serve “as laboratories for
    experimentation to devise various solutions where the best
    solution is far from clear.” Ariz. State Legislature v. Ariz.
    Indep. Redistricting Comm’n, 
    135 S. Ct. 2652
    , 2673 (2015)
    (quoting United States v. Lopez, 
    514 U.S. 549
    , 581 (1995)
    (Kennedy, J., concurring)).
    CONCLUSION
    Tucson’s hybrid system for electing members of its city
    council imposes no constitutionally significant burden on
    voters’ rights to vote. And Tucson has advanced a valid,
    sufficiently important interest to justify its choice of electoral
    system. On the facts alleged herein, the system does not
    violate the Equal Protection Clause’s one person, one vote
    commitment.
    AFFIRMED.
    

Document Info

Docket Number: 15-16142

Citation Numbers: 836 F.3d 1019, 2016 U.S. App. LEXIS 16263, 2016 WL 4578366

Judges: Thomas, Fletcher, Gould, Paez, Berzon, Clifton, Callahan, Christen, Nguyen, Owens, Friedland

Filed Date: 9/2/2016

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (25)

Bond v. United States , 131 S. Ct. 2355 ( 2011 )

United States v. Classic , 61 S. Ct. 1031 ( 1941 )

Gray v. Sanders , 83 S. Ct. 801 ( 1963 )

Lucas v. Forty-Fourth General Assembly of Colorado , 84 S. Ct. 1459 ( 1964 )

San Antonio Independent School District v. Rodriguez , 93 S. Ct. 1278 ( 1973 )

Dallas County v. Reese , 95 S. Ct. 1706 ( 1975 )

Gregory v. Ashcroft , 111 S. Ct. 2395 ( 1991 )

United States v. Lopez , 115 S. Ct. 1624 ( 1995 )

Washington State Grange v. Washington State Republican Party , 128 S. Ct. 1184 ( 2008 )

Crawford v. Marion County Election Board , 128 S. Ct. 1610 ( 2008 )

Stokes v. Fortson , 234 F. Supp. 575 ( 1964 )

the-libertarian-party-of-washington-arthur-rathjen-dan-blachly-tom-isenberg , 31 F.3d 759 ( 1994 )

Strode v. Sullivan , 72 Ariz. 360 ( 1951 )

Williams v. Rhodes , 89 S. Ct. 5 ( 1968 )

Lopp v. Peninsula School District No. 401 , 90 Wash. 2d 754 ( 1978 )

Moore v. Ogilvie , 89 S. Ct. 1493 ( 1969 )

Abe Ziskis v. Fife Symington, Governor Richard Mahoney, ... , 47 F.3d 1004 ( 1995 )

Smith v. Allwright , 64 S. Ct. 757 ( 1944 )

Burdick v. Takushi , 112 S. Ct. 2059 ( 1992 )

Gordon v. Lance , 91 S. Ct. 1889 ( 1971 )

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