On November 10, the Ninth Circuit issued this opinion in Public Integrity Alliance v City of Tucson, 15-16142. By a vote of 2-1, the decision says that Tucson’s system of electing city council members violates Equal Protection.
Tucson has partisan city elections, and elects one city councilmember from each of six wards. In the partisan primary, candidates run within districts, so each district primary nominates someone to represent each party. But in the general election, the election is at-large.
Both the majority opinion and the dissent are flawed. The majority opinion, by Judge Alex Kozinski, a Reagan appointee, says, “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’.”
This is a false statement, because Tucson has procedures for independent candidates to petition directly onto the general election ballot.
The opinion was co-signed by visiting U.S. District Court Judge Lawrence Piersol, a Clinton appointee. The dissent is by Judge Richard Tallman, also a Clinton appointee, although a Republican. The dissent is also flawed, because it says “The Supreme Court has been reticent to apply strict scrutiny to state election laws. It has done so only to evaluate discriminatory poll taxes, property ownership requirements for voting, and durational residency requirements.” The Supreme Court has also applied strict scrutiny to ballot access, most recently in 1992 in Norman v Reed.
Also, the dissent says on page 18 that the U.S. Supreme Court case American Party of Texas v White held that states may establish waiting periods before voters may be permitted to change their registration and participate in another party’s primary. That is untrue; the case that did that is Rosario v Rockefeller.
I find this decision interesting, because it could have ramifications in my area. Two nearby counties nominate candidates from districts, but then vote at-large in the general election. The complaint has been that these districts aren’t comparable in population, nor are they adjusted for population changes. Yet, they have been held not to violate the one man-one vote principle, because the commissioners are elected at-large. NC isn’t in the same appellate district, but maybe this will end up in the Supreme Court.
Regardless of whether this decision comports with existing case law, the decision makes sense to me given that the judges were trying to put a bandaid on the rotten framework that is today’s system of elections.
A big problem is the state funded and controlled primary mechanism which is nothing more than the duopoly cementing its absolute power. Real change can only come if we take the first step to get rid of the government controlled primary process, and instead have laws and rules that give all candidates equal access to being on the general election ballot. If we are ever to get there, it won’t fix things completely because the single winner, first past the post election system will still cause voters to vote for the lesser of two evils, fearing that “the bad guy” will be elected (the split vote syndrome). Taking the first step of getting rid of the primary process will make it easier to get to some form of ranked choice voting which, IMO, would dramatically improve governance in the USA.
The fundamental premise of the court’s decision, that the primary and general are components of a single electoral process, is unassailable. I do wish you would recognize that.
As for the majority’s opinion:
Without the primary, there would be no need for a separate nominating process for unaffiliated candidates. The independent nomination process may be even more flawed, since the number of signatures required is based on registration in the ward that the candidate resides in. So you potentially could have two candidates with identical number of signatures, and yet the voters of the city at-large might be denied the opportunity to vote for one and not the other. At best, by not mentioning independent candidates, the court did not fully recognize how egregious the Tucson system is.
The dissenting judge should be impeached for citing the congressional elections clause as having anything to do with city elections in a sovereign State.