BAN:

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.