Election Losers Wanted Appeals Court to Seat Them on Tucson City Council Anyway, Failed

Election losers Margaret Burkholder (left) and Kelly Lawton (right) were involved in a lawsuit against the City of Tucson to overturn an election where they lost by wide margins claiming an Unconstitutional election system — a system in place since 1929 — a system upheld twice by the voters themselves. Eleven judges voted unanimously against them.


Tucson Arizona elects its city council with a “hybrid” system. First, candidates are chosen from six local “wards” (or districts) in partisan primaries. Next, on election day, the winners of the local districts compete in a city wide “at-large” election.


Kelly Lawton explained his intentions (starting at 24:30):

We’ve got an electoral process here that was deemed Unconstitutional, so myself and Margaret Burkholder are currently litigating… And you know, our hope is, and I think we do have you know the Constitution in our favor, so you know looking forward, hopefully myself and Margaret Burkholder will be on that city council. And we’ll be able to lead this city in a new direction.


The two Republican candidates tapped into a dark money [PDF] group to fund the court challenge. Now, the federal Ninth Circuit Court of Appeals has handed them their Constitutions on a platter. The challenge was unanimously rejected.

Acting with undisclosed donor money, a group called Arizona Public Integrity Alliance filed a lawsuit to attempt to overturn the city election system on 14th Amendment Equal Protection grounds, claiming that the election system violated the “one person one vote” principle.

According to the Center for Public Integrity, the Arizona Public Integrity Alliance is “A group that launched ads attacking incumbent Tom Horne, a Republican, in the Arizona attorney general race.” Obviously, the Center for Public Integrity is not affiliated with the Public Integrity Alliance! Watch out for feel-good sounding names by dark money groups!

While not all funding is traceable, it is known that Arizona Public Integrity Alliance collects from Koch brothers affiliated groups American Encore and Wellspring Committee.


The hybrid system of electing the Tucson City Council has been in place since 1929. Twice in the 1990’s, voters exercised direct democracy by supporting the existing system through ballot initiatives. With attempts to overturn the system through a democratic vote failing, the Republican big money group and the actual election losers decided to turn to the courts.


In the district court, the group lost the case. An appeal was made to a three-judge panel of the federal Ninth Circuit Court of Appeals [PDF]. This time, the group won in a 2-1 divided decision. Now, a larger en banc panel of the same court unanimously reversed the smaller group, reinstating the original decision. The hybrid system is valid. From the latest opinion [PDF]:

The court explains how the “hybrid” system works.

Council members are elected through a hybrid system involving a ward-level partisan primary election 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…

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.

The court points out that twice voters supported the current system:

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.

The court notes that the “hybrid” system has been around a long time:

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… Several Washington cities, school districts, and special purpose districts also use similar hybrid election systems… 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.

The court explains the arguments of the dark money group Public Integrity Alliance. The group contends that the “hybrid” system violates the Equal Protection Clause of the Fourteenth Amendment and the “one person one vote” rule:

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…

Public Integrity Alliance seems to want some sort of purity. Either type of purity will do:

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 tries to apply the famous 8-1 Supreme Court Gray v. Sanders decision from 1963 to the situation:

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 …”

But the Gray case actually struck down a “unit” system where voters were not equally divided and did not enjoy “one person one vote.” In the current Tucson case, districts were equally divided and votes were counted, not units.

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…

Ultimately, every voter has 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.

The court concludes:

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.

While many elections have been subject to questions after the fact, this dispute was different because the losers, rightly or wrongly, wanted to take the city council seats anyway. That is not going to happen. This case could still go to the Supreme Court.

Here is a local television news report from last year with more background.