Public Integrity Alliance, Inc. v. City of Tucson

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.