Kelly Lawton and Margaret Burkholder on election night.
Two of the three Republican candidates who lost their bids for the Tucson City Council last month got their day in court earlier this week.
Attorneys for Margaret Burkholder, who lost to Democratic incumbent Shirley Scott in Ward 4, and Kelly Lawton, who lost to Democratic incumbent Paul Cunningham in Ward 2, told Pima County Superior Court Judge Gus Aragon that the Republican duo were cheated of their rightful victory because they won their respective wards.
And because a panel of Ninth Circuit Court of Appeals judges have ruled that the city’s current system of nominating candidates in ward-only primaries but allowing all voters to cast ballots in citywide elections is unconstitutional, the results of the Nov. 3 election should be thrown out.
“There has been an unconstitutional election,” said attorney Kory Langhofer, who is representing the GOP candidates. “There must be a remedy.”
Langhofer is also the attorney for the Public Integrity Alliance, a group of Republicans who sued in federal court earlier this year to have the city’s current election system declared unconstitutional. While Langhofer lost at the district court level, a Ninth Circuit Court of Appeals panel voted 2-1 just one week after the city’s election that the city’s system did violate the one-man, one-vote rule of the 14th Amendment.
The city voted earlier this month to ask the full Ninth Circuit panel of judges to review the three-judge panel’s decision, so a final decision in the case has yet to be issued.
Attorneys for the city and the Democratic council candidates who prevailed in last month’s election told Aragon that because the legal decision remains on appeal, the Republican candidates don’t have a legal leg to stand on.
“There is no finality,” said Senior Assistant City Attorney Dennis McLaughlin.
But even if there were finality to the Ninth Circuit’s order, McLaughlin said it wouldn’t affect the election that took place before the the Ninth Circuit issued its ruling because state statutes only allow election challenges based on laws in force “at the time the election occurred” and when voters cast their ballots, the city had a district court order in place saying the system was constitutional.
“We had a legal election,” McLaughlin said.
And even if the judge concluded that the Ninth Circuit’s order did require a new election, McLaughlin added, there’s no reason to believe that the city would need to move to ward-only general elections. He said that the Ninth’s Circuit’s order actually leaned toward requiring the city to move to a citywide primary system and a citywide general election.
“If you were to order a do-over, we would have to have a new election and both (primary and general elections) would be citywide,” McLaughlin said.
McLaughlin also argued that the challenge came too late because the Republican candidates signed up to run under the current rules and even accepted public money for their campaigns based on those rules.
“If you are going to challenge an election, you have to do it before the election happens,” McLaughlin said. “You can’t come in afterwards.”
Langhofer conceded that no final decision has been made, but argued that the current call by the appeals court is all that matters in this court case. And, he added, the Republicans couldn’t have challenged the system because the federal court hadn’t issued its order declaring the current system unconstitutional.
Aragon said he’d make a ruling by Monday, Dec. 7.
After the hearing, City Attorney Mike Rankin said he was “anxiously awaiting the judge’s decision.” Burkholder said she felt the same way.
“I’m not a patient person,” she said. “I’m looking forward to Dec. 7.”
Lawton said the legal challenge “is not a sour-grapes petition. It’s equal rights for equal citizens in the city of Tucson.”