As the sun set over “A” Mountain, Tucson City Council candidates Margaret Burkholder and Kelly Lawton were surrounded by supporters outside the Pima County Superior Court, on Friday, after filing an elections contest complaint of the 2015 Tucson City Council election.
The complaint is filed in response to a ruling in the Ninth Circuit Court of Appeals that found that Tucson’s hybrid elections are unconstitutional.
Burkholder, Lawton, and their supporters were joined by Pima County Republican Party leaders as they announced their decision to challenge the City of Tucson in court based on the belief that the hybrid voting process kept them from taking their rightful place on the Council. Both candidates won their wards, but lost in a citywide vote. The two told supporters that they hybrid election process disenfranchises the voters. They demanded the constitutional rights of the citizens be protected.
The Ninth Circuit Court of Appeals ruled:
“The panel determined that the practical effect of the Tucson system is to give some of a representative’s constituents — those in his home ward — a vote of disproportionate weight. That is the very result the Supreme Court’s one person, one vote jurisprudence is meant to foreclose. The panel held that every otherwise eligible voter who will be a constituent of the winner of the general election must have an equal opportunity to participate in each election cycle through which that candidate is selected.”
The panel rejected Tucson’s argument that the hybrid system is a reasonable “residency restriction” on the right to vote. The panel held that when two groups of citizens share identical interests in an election, the city may not use a residency requirement to exclude one group while including the other. The panel concluded that excluding out-of-ward voters from the primary election discriminates among residents of the same governmental unit in violation of the Equal Protection Clause of the Fourteenth Amendment.”
Attorneys for Burkholder and Lawton are challenging the certification of Paul Cunningham and Shirley Scott by the Pima County Board of Supervisors and the City Council of Tucson as the winners of the November 3, 2015.
The contest reads in part:
Because participation in the August 25, 2015 primary elections for the Ward 2 and Ward 4 City Council seats was limited to qualified electors residing in the respective ward, it follows that participation in the November 3, 2015 general election likewise was required to have been limited to qualified electors residing in the respective ward.
Defendants/Real Parties in Interest Paul Cunningham and Shirley Scott have been certified as elected to the Ward 2 and Ward 4 City Council seats, respectively, on the basis of illegal votes cast by electors residing outside the relevant ward. Accordingly, the certifications should be annulled and declared as lacking any legal force or effect, and Kelly Lawton and Margaret Burkholder should be certified as having the highest number of legal votes for the City Council seats in Ward 2 and Ward 4, respectively.”
On November 10, 2015, the United States Court of Appeals for the Ninth Circuit held that the Hybrid System violated the Fourteenth Amendment of the United States Constitution.
The court held that although the City permissibly could conduct City Council elections on either a ward-only or an at-large basis, the chosen geographical unit must remain constant in both the primary and general elections, explaining that “[b]ecause the constituency of the representative to be elected remains static throughout the election process, the geographical unit must also remain static throughout that process.”
Because participation was limited only to qualified electors residing in the ward, the geographical unit for the Ward 2 partisan primary held on August 25, 2015 was Ward 2.
Because participation was limited only to qualified electors residing in the ward, the geographical unit for the Ward 4 partisan primary held on August 25, 2015 was Ward 4.
Any elector of the City may contest the election of any person declared elected to a City office on the grounds that the person was elected on account of illegal votes.
Votes cast by persons who were constitutionally or statutorily ineligible to participate in the contested election are illegal votes.
Because participation in the Ward 2 partisan primary election was limited to qualified electors residing in Ward 2, only residents of that geographical unit could, consistent with the Fourteenth Amendment, cast legal votes in the general election for the Ward 2 City Council seat.
Votes cast in the general election for the Ward 2 City Council seat by individuals residing outside Ward 2 were illegal. (Read contest here)
Lawton stated Friday evening that he and Burkholder are challenging the results because the people demand a result. They are requesting that the court issue a judgment “annulling or setting aside any and all certifications of election of Defendants/Real Parties in Interest Paul Cunningham and Shirley Scott in Ward 2 and Ward 4, respectively.” They ask the court to declare Lawton and
Burkholder “be certified as having the highest number of legal votes for the City Council seats in Ward 2 and Ward 4, respectively.” and declare that any and all certifications of election of Defendants/Real Parties in Interest Paul Cunningham and Shirley Scott in Ward 2 and Ward 4, respectively, are of no further legal force or effect.”
In the alternative, Lawton and Burkholder want the court to order a special election for the Ward 2 and Ward 4 City Council seats.
Pima GOP Chair Bill Beard said that the issue in the hands of the court. It will decide what the next best step will be.