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Tucson's Election System Gets an Undeserved Reprieve

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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What if you could vote in the general election -- but not the primary? Reversing itself, an appeals court has upheld the Tucson city council’s strange electoral system, which creates exactly this anomaly for some voters. The result is probably legally correct. But the voting system is fairly dysfunctional, and should be changed.

Tucson’s practice, which dates from 1929, isn’t completely unheard of, but it’s genuinely strange. The city is divided into six wards, and there are six city councilors. In any given city council election, three of these officials are up for election.

The way it works is that candidates first must run in primaries that take place in each of three wards. The primaries are partisan, separated into Democratic and Republican races. Then, all of Tucson’s eligible voters get to vote for all the candidates in the general election. If you live in Ward 1, you vote in the primary just for the Ward 1 candidate, but you can vote in the general election for up to three candidates running from all the wards that are up for a vote.

That might seem to resemble an ordinary presidential election. Each of us is eligible to vote in one state primary, but then we vote in the general contest.

The anomaly arises because only half the city council seats are up for a vote in each election. For example, imagine that candidates from Wards 1, 2, and 3 are up for re-election. If you live in Ward 4, you can’t vote in any of the primaries. But in the general election you can vote for up to three candidates who’ve been selected by primaries held in other wards. The result is that half the time, you get to vote in the general election, but not the primary.

In 2015, a panel of the U.S. Court of Appeals for the 9th Circuit struck down this arrangement as an unconstitutional violation of the equal right to vote. The opinion, by the libertarian-leaning Judge Alex Kozinski, emphasized the potentially distorting partisan effect of the system.

Tucson has many more Democrats than Republicans, which means that those who win the Democratic primaries are overwhelmingly likely to get elected in the general election. In other words, the primary is everything. “Yet,” Kozinski wrote, “five-sixths of Tucson’s voters have not even a theoretical possibility of participating in the primary that will, for all practical purposes, determine who will represent them in the city council.”

Partisan gerrymandering isn’t unconstitutional. So to strike down the system, Kozinski relied on the argument that, in effect, Tucson has a city-wide city council electoral system, but doesn’t allow all citizens to vote in the primaries every time. And he quoted a 1963 Supreme Court case that says, “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.”

Tucson asked the court to rehear the case en banc -- and last week it unanimously reversed the panel opinion. This time the court held that there was nothing wrong with the Tucson system because it’s rational and doesn’t impose a severe burden on citizens. The court said the panel had quoted the 1963 Supreme Court precedent out of context. That case, it pointed out, involved a Georgia state primary system that gave disproportionate influence to voters from some districts rather than others, by violating the principle of one person, one vote.

The en banc court is almost certainly legally correct. Writing for the panel, Kozinski said that if the city can change the geographical unit from primary to general election, New York state “could limit the primary for its junior senator to Manhattanites and the primary for its senior senator to the rest of the state.” That’s not quite right -- because in that situation, 1.6 million people in Manhattan would get a disproportionate influence relative to the rest of the state.

In contrast, Tucson’s six wards are basically equal in population. And crucially, every Tucson resident gets to vote in a ward primary -- just not in every election. If you take the unit of election as two elections, not one, there’s no distortion left in the system.

Still, the Tucson system is nevertheless problematic and should be changed. Elected officials should represent identifiable constituencies, whether those are ward-based or citywide. The value of identifying the constituency is that it makes the representative more accountable to the voters.

A hybrid system like Tucson’s distorts accountability and potentially insulates candidates from being challenged effectively. If Republican voters in Ward 6 really don’t like the Democratic councilor from Ward 1, they can’t block him in the primary -- even though in principle he represents them and even though they can vote against him in the general election.

The original idea of the Tucson system may have been to make city councilors feel responsible to both a ward and to the city at large. But the system thwarts that aspiration. It isn’t unconstitutional -- but it is poorly designed.

  1. That basically only happens in the 9th Circuit, where the en banc court is a randomly selected mix of the judges. None of the judges from the original panel was on the en banc court, and no one on the en banc court took Kozinski's position.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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