F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P U B L I C I N T E G R I T Y A L L I A

N C E , I N C ., an Ariz o na nonprofit membership corporation; B R

U C E A S H , an individual; F E R

N A N D O G O N Z A L E S , an individual; A N

N H O L D E

N , an individual; L O R

I O I E N , an individual; K E N S M A L L E Y , an individual, Plaintiffs-Appellants

,

v.

C I T Y O F T U C S O N , a chartered city of the State of Ariz ona; J O N A T H A N R O T H S C H I L D , in his capacity as the May o r of the City

of Tucson; R E G I N A R O M E R

O , in her capacity

as a member of the Tucson City Council; P A

U L C U N N I N G H A M , in his capacity as a member of the Tucson City Council; K A R

I N U H L I C H , in her capacity as a member of the Tucson City Council; S H I R

L E Y S C O T T , in her capacity as a member of the Tucson City Council; R I C H

A R D F I M B R

E S , in his capacity

as a member of the Tucson City

Council; S T E V E K O Z A C H I K , in his capacity as a N o. 15-16142

D.C. No. 4:15-cv-00138- CKJ

OPI NI ONP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 2

member of the Tucson City Council; R O G E R R A

N D O L P H , in his capacity as the Clerk of the City

of Tucson, Defendants-Appellees

.

A ppeal from the United States District Court for the District of Ariz o na Cindy K. J o r g enson, District J udg e, Presiding

Arg ued and Submitted Aug ust 11, 2015—San F rancisco, California

F iled November 10, 2015

B efore: Alex Koz inski and Richard C. Tallman, Circuit J udg es, and L awrence L

. Piersol, * Senior District J udg e

.

Opinion by

J udg e Koz inski; Dissent by

J udg e Tallman

* T h e Ho n o rab le L aw

ren ce L

. Pierso l, Sen i o r District J u d g e f o r th e U .S. District Co u

rt f o r th e District o f

So u th Dak o ta, sittin g b y

d esig n atio n

.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 3

SUMMARY * *

Civil Rights

The panel reversed the district court’s judg ment in favor of the City of T u c s o n in an a ction challeng ing the constitutiona l i ty of Tucson’s hy b rid sy stem for electing members of its city

council.

Tucson is divided into six wards of a pprox imately equal
p o pulation, and each ward is allotted one seat on the c i t y council. U nder the first step of the h y brid sy stem each ward holds its own primary

limited to residents of that ward. The winners o f the ward primaries a dvance to the g eneral election, where they compete ag ainst the other candi d ates nominated from that ward. I n the g eneral election, all Tucson residents

can vote for one council member from each ward that held a primary during the same election cy cle.

The panel first held that i n d et ermining the sy stem’s constitutionality

, the primary and g e n er al elections must be considered in tandem as two parts of a sing le election cycle, rather than two separate contests judg e d independently of o ne another.

The panel determined that the p ractical effect of the Tucson sy stem is to g ive some of a representa t ive’s constituents—those in h is home war d —a vote o f disproportionate weig ht. That is the very result the Supreme Court’s one person, one vote j urisprudence is meant to

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 4

foreclose. The panel held that every otherwise elig ible voter who will be a constituent of the winner of the g eneral election
must have an equal opportunity to participate in each election
cy cle throug h which that candidate is selected.

The panel rejected T ucso n ’ s arg ument that the hy brid
sy stem is a reasonable “residency restriction” on the rig h t to vote. The panel h e l d that when two g roups of citiz e ns share identical interests in an election, the city may n o t u s e a residency requirement to ex c lude one g roup while including the other. The panel concluded that ex c luding out-of-ward
voters from the primary election discr i m i n ates a mong

r e s i dents of the same g overnmental u nit in violation o f the Equal Protection Clause of the F ourteenth Amendment.

Dissenting

, J udg e Tallman s t ated that the Constitution does not require Tucson to draw its d istrict borders in a particular way for different local elections. He concluded that Tucson’s hy

brid sy stem is c onstitutiona l

, and the majority erred in holdingotherwise.

COUNSEL

Kory A. L a

ng hofer (arg

ued), T homas J

. B asile and Roy Herrera, J r., B rownstein H y att F arber Schreck, L L P, Phoenix

, Ariz ona, for Plaintiffs-Appellants.

Michael G

. Rankin, City Attorney
, Dennis McL aug hlin (arg ued), Principal Assistant City A t t orney , Office of the Tucson City Attorney
, Tu cson, Ariz ona, a nd Richard Rollman, Gabroy Rollman & B osse PC, Tucson, Ariz ona, for Defendants-Appellees.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 5

OP INION

KOZ I NSKI , Circuit J udg e:

W e consider the constitutionality o f Tucson’s unusual
sy stem for electing

members of its city

council.

F ACTS

T ucson’s elections are ordinary in many way s. T h e c i t y is divided into six wards of approx imately equal population, and each ward is allotted one seat on the city c o u ncil. A candidate f

or city council must run for the seat in the ward where he res i d e s. See Tucson City Charter ch. I I I
, § 1; ch. XVI , §§ 5, 8, 9. F rom there, thing s take an odd turn.

I n some American cities, council seats are filled at larg e , w ith the entire city voting f or each seat in the pri m a ry a n d
g eneral e lections. I n other cities, co uncil members a re nominated and elected by the residents of particular districts. Tucson splits the difference: Since 1930, the city has used a “hy brid sy stem” that combines ward-based primaries with atlarg e g eneral elections.

The f irst step in the hy

brid sy st e m i s a partisan primary

. Each ward holds its own primary limited to residents of that ward. The winners of the w a rd p ri maries advance to the
g e n eral election, w here they compete ag a inst the other candidates nominated f

rom that ward. I n the g eneral election, all Tucson residents can vote for one council mem b e r from each ward that held a primary during the same election cy cle. See C harter ch. X VI
, § 9. Thus, a r esident of W a rd 1 can’t
vote in the W ard 2 primary

, b ut c an vote for one of the W ard 2 candidates in the g eneral election. The parties a gr ee that,P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 6

once e lected, c ou n c i l m embers represent the e ntire city

, not j u s t the w ard from which they w ere nominated. See City o f Tucson v. State
, 273 P.3d 624, 631 (Ariz

. 2012) (“Tucson council members, althoug h nominated by ward, represent the entire city

, just as do c o u ncil members elected at larg e in other cities.”); see al

s o Dallas Cty. v. Reese
, 421 U.S. 477, 480 (1975) (“[ E] lec t ed officials represent all of those w ho elect them

. . . .”); Fortson v. Dorsey
, 379 U.S. 4 3 3
, 438 (1965) (similar).

Council seats a

r e filled in stag g ered elections, with three council members elected every other y ear. Onc e elected, a council member serves a four-y ear term. See Charter ch. XVI
, §§ 3–4. The council members from W ards 1, 2 and 4 will be elected in 2015, and the council members from Wards 3, 5 and 6 wil l be elected in 2017. B ecause only half of the council seats are u p f

o r e l e ction in any g iven y ear, only half of Tucsonans can vote in a p rimary in ea c h e l e ction cy cle. And approx imately 8 3 percent of the electorate that votes for
any g iven council seat in the g e neral elec t i o n h a s no say in selecting the nominees competing for that seat.

Plaintiffs are five Tucson voters and a non-profit corporation called the Public I n teg rity Alliance (collectively

“ P I A ” ). PI A concedes that the city could use ward-based primaries an d w a

r d

- b a s ed g eneral elections without o ffending the Constitution. Similarly

, the city could u s e at-larg e primaries and a t-larg e g eneral e lections. B ut PI A arg ues that combining these two o ptions into a hy brid sy stem violates the federal and Ariz o na Constitutions 1 by depriving T u cson

1 P IA alleg es th at th e h y b rid sy s tem v io lates th e Free an d E q u a l Electio n s Clau se o f th e Ar i zo n a Co n stitu tio n

. A riz. Co n st. art II, § 2 1

. W e h av e b een cited n o au th o rity in d icatin g th at th e rig h ts g u aran teed b yP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 7

voters of their rig ht to vote i n primary elections for individuals w h o will ultimately serve as their at-larg e representatives. PI A s u e d t he city seeking to enjoin the hy brid sy stem and secur e a declaration that the scheme is unconstitutional. The district court r uled in favor o f the c ity

. W e have jurisdiction under 28 U.S.C. § 1291.

D ISCUSSION

W e start by re s o l v ing a dispute between the p arties that has a substantial bearing on our analy sis and, ul t i m a tely

, on the r esult we reach: Are T u cson’s primary and g ener al elections two sep a r a t e contests, each g overned by rules that
must be judg ed in d e pendently of one another—as the city contend s ? O r are they two parts of a sing le election cy cle, which must be considered in tandem when determining their constitutionality

—as PI A claims? The dif f e r ence matters a g reat deal. I f the two elections were s ep a r ate, PI A ’s constitutional objections would larg ely e v a porate and this would become a simple c ase. This is so because there would be no m i s m atch between the voting constituency a nd the represented c onstituency in the two elections. I t’s only if we view the two elections as one that serious c o n s titutional doubts arise.

Unfortunately , the easy

solution is not available because it is perfectly clear that the two contests are not independent. I n s t e ad, they are complementary components of a sing le election. Althoug h the two contests are separated in time b y

th at d o cu m en t d if

f er f ro m th o se g u aran t e e d b y t h e f ed eral Co n stitu

tio n

. B ecau se P IA d id n ot d ev elo p an y state- law arg u m en ts in i ts ap pel l ate b rief in g , w e co n sid er th e s t ate- law claim s ab an d o n ed

. S ee Green w o o d v

. F.A.A ., 2 8 F.3 d 9 7 1 , 9 7 7 (9 th Cir. 1 9 9 4 ).P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 8

ten wee k s , t h ey are e ntirely c o-dependent. W ithout the primary

, there could be no candidate t o c o m pete in the
g eneral election; without the ge neral election, the primary winners would sit o n their h ands. B ecause a candidate must win a primary in order to compete in the g eneral election, the “rig h t to choose a representative is in fact controlled b y the primary .” United States v. Classic

, 3 1 3 U.S. 299, 319 (1941). Thus, th e S upreme Court h as held that the primary a nd
g e n e r al e lections are a “sing le instrumentality for c hoice o f officers.” Smith v. Allwright

, 3 21 U.S. 649, 660 (1944); see Newberry v. United States
, 2 5 6 U.S. 232, 284– 8 6 ( 1 921) (Pitney

, J
., concurring in p art) (noting t h a t t he primary a nd
g eneral elections are “essentially but parts of a sing le process”).

B e cause the p r imary and g en e r a l e lections are two parts of a “ unitary ” process, Allwright

, 321 U.S. at 660–61, a citiz en’s rig ht to vote in the g eneral e l e ction may be meaning less unless he is also permitted to vote i n t h e primary

. I f a voter’s preferred c andid a t e is defeated in a primary f rom which the voter is ex cluded

, t he voter would

never have the chance to cast a b a l l o t for his candidate o f choice. Cf. Morse v. Republican Party of Va.
, 517 U.S. 186, 205 (1996) (invalidating registration fee for V irg inia

s enatorial nominating convention because the fee limited voters’ “influence on the f ield of candidates whose names [ would] appear on the ballot” and thus “weaken[ ed ] t he ‘effectiveness’ o f t heir votes cast in the g eneral election itself”); Bullock v. Carter
, 405 U .S. 134, 146 (1972) (“[ T] he primary election may be more crucial than the g e n e ra l election

. . . .”); Classic

, 313 U.S. a t 319 (observing that “the practical influence of the choice of c andidates at the primary

m ay be so g r eat as to a ffect profoundly the choice a t t h e g eneral election”); Ayers-Schaffner v. DiStefano

, 37 F .3dP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 9

726, 728 n .5 (1st Cir. 1994) (noting th a t “ t h e a bility to v ote in the g e n e r al election [ is not] a satisfactory a lternative for those voters not al l o w e d to vote in the primary

, as the candidate of their cho i c e m a y have been ex cluded in the preliminary

election from which they were barred”).

This case illustrates the point. Althoug h Ariz o n a as a whole ge n erally votes Republican, Tucson g enerally votes Democratic. This means that the Democratic nominee from each ward w ill likely w in the g e n eral election reg ardless o f whether the ward from which h e w as nominated is principally Republican or Democratic. I ndeed, the city ’s current may o r and all six council members are D emocrats. See Tucson City Council Democratic I

ncumbents R e-Elected

, Ariz ona Public Media (Nov. 6
, 2013), a vailable at https://g oo.g l/oMkOx i. I n most c ases, then, the Democratic wa rd primary is the only election that matters; the g e neral election is a mere formality

. Even if electing the Democratic nomin e e is not automatic, there is n o dispute that the Democratic n o m i n ee enters the
g eneral election w ith an enormous advantag e. Thus the v ote in the primary

—and particularly the Democratic primary

— has a commanding influence on the o u tcome of the ge n e r al election. Yet five-six ths 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.

The Suprem e Court has indicated that, “[ o] nce the
g eog raphical unit for which a representative is to be chosen is desig nated, all who participate in the election a re to have an equal vote” no matter w here “their h ome may be in that
geog raphical unit.” G ray v. Sanders

, 372 U.S. 3 68, 3 7 9 (1963). Gray defines the “g eog raphical u nit” by reference to the constituency of “the representative to be c hosen.” Id. atP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 10

379; see id. at 382 (Stewart, J

. , concurring ) (“ W ithin a given constituency
, there can b e r oom for b u t a sing le constitutional rule—one voter, one vote.” (emphasis added)). All part i e s before us ag ree that the constituency of each Tucson c ouncil member is the entire city

. T h u s, the relevant g eog raphical unit is the city at la r g e. B ecause the constituency of the representative to b e elected remains static throug h o u t t he election p rocess, the g eog raphical u nit must also remain static throug hout that process. 2

I f the city were permitted to chang e the g eog raphical unit between the primary and g eneral elections, it could decouple the r epresentativ e to be elected from his constituency

. F o r

ex a mple, Tucson could decree that only voters living on Main Street are elig ible t o v o t e in primaries, thereby forcing the

2 W e are n o t p ersu ad ed b y th e city ’ s relian ce o n tw o d ecad es- o l d d istrict co u rt o p in io n s th at d ealt w ith h y b rid sy s t em s f

o r j u d icial electio n s. Ho ls h o u ser v

. S

co tt an d S to kes v

. Fo rtso n in v o lv ed ch allen g es to state law s p ro v id i n g th at j u d g es w o u ld b e n o m in ated f ro m th eir d istricts b u t elected statew i d e in th e g en eral electio n

. In b o th cas e s , t h r ee- j u dg e d istrict co u rts ru led th at t h e p r i n c i p le o f o n e p erso n , o n e v o te i s n o t ap p licab le to j u d icial electio n s. B o th co u rts w en t o n to o b serv e th at, ev en if th at w ere n o t th e case, th e h y b rid sch em es w o u ld n o t v io late o n e p erso n , o n e v o te b ecau se th ey d id n ’ t in vo l v e d i lu tio n or an u n eq u al co u n t in g of

v o tes. S ee Ho lsh o u ser , 33 5 F. Su p p

. 9 28
, 9 30
, 9 3 3 (M.D.N.C. 19 7 1 ); S to kes

, 2 3 4 F. Su

p p . 5 7 5 , 5 7 7 (N.D. Ga. 1 9 6 4 ). T h e city arg u es th at th e Su p rem e Co u rt’ s su

m m ary af f irm an ce in Ho lsh o u ser , 40 9 U.S. 8 0 7 (1 9 7 2), is a ru lin g o n th e m erits th at req u ires u s to u p h o ld T u cso n ’ s h y

b rid
sy stem

. B u t a “ su

m m ary af f irm an ce w ith o u

t o p in io n in a case w ith in th e Su p rem e Co u rt’ s o b lig ato r y ap p ellate j u risd ictio n h as v ery little
p reced en tial sig n if

ican ce.” Dillen b u rg

v

. Kra mer , 4 69 F.2 d 1 2 22
, 1 2 2 5 (9 th Cir. 1 9 7 2 )

. I t d o es n o t en sh rin e as S u p rem e Co u rt p reced en t ev ery stro k e o f th e p en in th e d istrict co u rt’ s o p in io n

. T h e su

m m ary d isp o sitio n i n Ho lsh o u ser w as lik ely in t en d ed to af f irm th e p ro p o sitio n th at o n e p erso n , o n e v o te d o es n o t ap p l y t o j u d icial electio n s, as th e Co u rt

ev en tu ally

h eld in Ch iso m v

. Ro emer , 5 0 1 U.S. 3 8 0 , 4 0 2

– 0 3 (1 9 9 1 ).P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 11

entire c i t y to choose among nominees selected by a tiny minority of r esidents. O r the State of New York, in an effort
to cap its number of city

- slicker senators, could limit the primary f

or its junior s e n a t or to Manhattanites and the primary f o r its senior senator to the r e s t o f t h e state. W e do
not believe that such mismatches between voters at different stag es of a sing l e election cy cle are constitutionally permissible.

Given the city ’s concession that each council member represents all o f Tucson, it’s clear that the representational

nex us r u ns between the city and the council member, not between the w ard and the council member. B u t the hy brid
sy stem makes the t e n u r e of each at-larg e council member larg e ly dependent on the preferences of voters of his home ward; without their support, a council mem b er c o uld not be nominated (or re-nominated) in the first place. Given that reality

, each council member will be d i s proportionately responsive to voters from h is home ward, especially those o f his own p arty

. The c ity claims that this is a r e deeming benefit of its hy

brid sy stem. The ex act opposite is true. The practical e ffect of the Tucson sy ste m i s t o g ive some of a representative’s constituents—those in his home ward—a
vote of disproporti o n a te weig ht. That is the very result the Supreme Court’s one person, one vote jurisprudence is meant to foreclose. See Reynolds v. Sims
, 377 U.S. 5 3 3
, 560–64 (1964). W e c annot endorse a n election sy stem that
encourag es at-larg e representatives to prioriti z e kissing babies an d c u rry

ing f a v or in their home wards over the interests o f their constituents who happen to live in other parts o f the city

. As the Supr e m e Court itself has n oted, an at-larg e representative “must be vig ilant to serve the interests of all the people in the [ city ]
, and not merely those o f people in his home [ ward] .” Fortson , 379 U.S. at 438.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 12

W e hold t h a t e very otherwise elig ible voter who will be

a constituent of the winner of the g eneral election must have

an equal opportunity to participate in each election cy cle throug h which that c a

ndidate is selected. J ust as the city could not ex clude a resi dent of W ard 1 from voting in the
g eneral election for his council member from W ard 2, so the city may not ex clude that resident from a primary election for the same official. See Allwright

, 321 U.S. at 6 6 4 ( “ [ T ] h e

same tests to determine the character of discrimi n a t i o n o r abridg emen t should b e applied to the primary as are a pplied
to the g eneral election.”); C l a ssic
, 313 U.S. at 3 18 (“[ The] rig ht of participation [ in the nominating process] is protected just as is the rig ht to vote at the election. . . .”).

The c ity ’s final arg ument i s t hat the hy b rid sy stem is a reasonable “re s i dency restriction” on the rig ht to vote. B ut when two g roups of citiz ens share identical interests in an election, the c ity may not use a resi d e n c y r equirement to

ex c lude one g roup while including the o t her. See Town of Lockport v

. Citizens for Comm. A ction a t the Local Level, Inc.
, 430 U.S. 259, 268 ( 1977) (residency requirements must be premised on a “g enuine difference in the relevant interests of the g roups that the state electoral cla s sification has created”); id. (ex cluded g roup must be permitted to vote if it has “substantially ident i c al interests” as included g roup); Evan s v

. Cornman
, 398 U.S. 419, 422–26 (1970) (residents of federal e nclave within Maryland couldn’t be ex cluded from the franchise because they had “a stake equal to that o f other Maryland residents”); see also Holt Civic Club v. City of Tuscaloosa

, 439 U.S. 60, 7 2 n .8 (1978) (sug g e sting that a city mig ht be required to enfranchise non-residents if it were “ex e rcising p r ecisely the same g o vernmental powers o v e r [ them] as it does over th o s e residing within its corporateP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 13

limits”). 3 I n this case, the out-of-ward Tucsonans who a re

ex c luded f

rom the ward primaries have precis e l y the same interests in those primaries as do the ward residents who are
pe r mitted to participate. The nominees selected in the ward primaries will advance to the g eneral election; if e l e cted
t h ere, they will r epresent the entire city

. B ecause all Tucsonans have an equal interest in d e t e r m i ning who the nominees will be, the city may not ex clude out-of-ward voters from the primaries.

Little Thunder v

. South Dakota

, 518 F .2d 1253 (8th Cir. 1975), is instructive. That case involved a challeng e to South Dakota’s scheme for g overning its unorg aniz ed counties. The residents of t h e unorg aniz ed c ounties were g overned b y elected officials in the n earest org a niz ed county , but only the residents of the o r g aniz ed county were all o w e d to vote for those officials. The state defended t h i s scheme as a

r e a s o n a ble residency requirement. Id. at 1255. I n its v iew, the residents of the u n org aniz e d counti e s (who were mainly Native A mericans) d id not share the sam e interests in the elections as did the residents of the org aniz ed counties. The Eig hth Circuit rejected the arg um e n t

. Citing Cornman
, that

3 No th in g w e say h as an y b earin g o n th e city ’ s ex is t i n g c a n d id a t e

resid en cy req u irem en t , w

h ich req u ires each co u

n cil m em b er to ru n f

or th e seat f ro m th e w ard in w

h ich h e resid es. S

ee T u cso n City Ch arter ch

. XVI, § § 5
, 9

. T h e Su

prem e Co u rt h as tw ice u

p h eld sim ilar sch em es. D u sch v

. Da vis
, 3 8 7 U.S. 1 1 2
, 1 1 4

– 1 6 (1 96 7); Da lla s Cty. v

. Reese
, 4 2 1 U .S. 4 7 7
, 4 8 0

– 8 1 (1 9 7 5 ). In l ig h t of Du sch an d Reese
, th e city arg u es th at w e are b o u n d t o ap p ro v e th e vo ter

- resid en cy req u irem en ts im p o sed b y th e h y

b rid
sy stem

. B u t, d esp ite t h e sim ilarity in n am es, can d id ate- resid en cy req u irem en ts are qu ite d if f eren t th an v o t e r

- resid en cy req u irem en ts. Neith er D u s ch n or Reese req u ires th at th e sam e co n stitu tio n al p rin cip les
g o v ern in g can d id ate- resid en cy req u irem en ts also ap p ly to v o ter- resid en cy req u irem en ts. See Du s ch , 3 8 7 U.S. at 1 1 5

– 1 6.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 14

court held that a state may n ot use a r esidency requirement to prevent citiz ens from v oting for “those who will function a s their elected officials.” Id. at 1258. The court applied strict scrutiny and invalidated the scheme. I d.

The fact that two g r oups l i v e o n opposite sides o f a pol i tical boundary does not necessarily mean they can be treated differently for v oting purpose s

. This is the teaching of Little Thu n d

e r

. 518 F .2d at 1 256; see English v. Bd. of Educ. of Town of Boonton
, 301 F .3d 6 9, 7 7
, 7 9 ( 3 d Cir. 2002); United States v. South Dakota

, 6 36 F .2d 241, 245 (8th Cir. 1980); see al

s o H o l t Civic Club

, 439 U.S. at 81, 86 (B rennan, J

. , dissenting ) (cautioning ag ainst “ c ed[ ing ] to g eog raphy a talismanic sig nifican c e ” ). I f two g roups a re represented by the sa m e p olitician, they are necessarily part of a “ s i ng le unit of local g overnment.” Little Thunder

, 518 F .2d at 1256. Any

boundary that p urports to sub-divide that sing le unit is hopelessly arbitrary

, a n d a n y “residency restriction” that disenfranchises citiz ens based on where they live in r elation to that arbitrary boun d a r y c annot stand. Ex cluding out-of-ward voters from the primary election discriminates a mong r esidents of the same g overnmental unit in v iolation of the Equal Protection Clause of the F ourteenth Amendment.

REVERSED.

TAL L MAN, Circuit J u dg e, dissenting :

There a re ce r t a i n times w hen a federal court may tell a municipality how to run its local elections. T his is n ot one o f them. Tucson’s hy

brid election sy stem does not invidiouslyP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 15

discriminate ag ainst voters based on their race, ethnicity

, g ender, or wealth. Rather, p laintiffs arg u e—and the majority
ag rees—that Tucson unconstitutionally denies its citiz ens the rig ht to vote by setting different g e o gr aphical units for its councilmanic primary a

nd g e neral elections. B ecause I conclude that the Constit u t ion d oes not require Tucson to draw its district borders in a p articular way for different local elections, I

respectfully

dissent.

I

“The Constitution g rants States broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators a

nd Representatives,’ Art. I
, § 4, cl. 1, which power is matched by state control over the election process for state offices.” Clingman v. Beaver
, 544 U.S. 581, 586 (2005). The United States Supreme Court has recog niz ed that g overnment “is the science of ex p eriment” and that states are “afforded wide leeway when ex peri m e n ting with the appropriate allocation of state leg islative power.” Ho l t v

. City of Tuscaloosa

, 439 U.S. 60, 71 ( 1978) (citing Anderson v. D unn , 6 W heat. 2 04, 226 ( 1821)). However, a state’s power over its electoral procedures is not a bsolut e and “must pass muster ag ainst the charg es of d iscrimination or of abridg ment of the rig ht to vote.” Moore v. Ogilvie , 394 U.S. 814, 818 (1969).

A

Conspicuously a

b sent f rom the majority ’s opinion is any mention of the appropriate standard o f review. I n Burdick v

. Takushi

, 504 U.S. 428, 434 (1992), the Supreme Court announced the standard for evaluating laws respecti n g the rig ht to vote. Althoug h we ty pically invoke strict scrutiny to evaluate state laws that implicate fundamental rig hts, BurdickP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 16

requires courts to apply a more deferential level of scrutiny to most state e lection laws that abridg e the fundamental rig ht to vote. I d. at 433; Dudum v. A rntz , 640 F .3d 1098, 1113 (9th Ci r

. 2 0 11) ( recog niz ing that Burdick creates a sliding scale

s t a ndard o f r eview). Courts determine the appropriate le v el of scrutiny to evaluate a state election law by ex amining the burden the law imposes on voters’ rig hts and then w e i gh ing that burden ag ainst the s t a te’s leg itimate interest in maintaining the law. Burdick

, 5 0 4 U.S. at 434 (citing Anderson v. Celebrezze

, 460 U.S. 780, 788 (1983)); L auren W a tts, Reexamining Cr a wford : Poll W orker Error as a Burden on Voters
, 89 W ash. L

. Re v

. 175, 180 (2014) (discussing the Anderson / B urdick framework).

“Under this standard, the rig orousness of our inquiry into the propriety of a state election law depends upon the ex tent to which a challeng ed reg u lation burdens F irst and F ourteenth Amendment rig hts.” Burdick

, 504 U.S. at 434. Strict scrutiny review is a

ppropriate only if the burdens are severe; otherwise, the state election law is constitutional so long as it i s j u stified by a state’s “important reg ulatory interests.” I d

.

B

T h e Supreme Court has been reticent to apply stric t scrutiny to state election laws: I t has done so only to e valuate discriminatory poll tax es, prop erty ownership requirements for voting

, and durational residency requirements. See Harper v. Va. State Bd. of El e c t i o n s , 383 U.S. 663, 665–70 (1966) (invalidating state p o l l tax ); Kramer v. Union Free Sch. Dist.
, 395 U.S. 621, 632–33 ( 1969) (holding that a state law requiring

school district voters to own real property was

un co nstitutional); Dunn v. Blumstein

, 405 U .S. 330, 335 (1972) (states must show a “substantial and compellingP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 17

reason” for imposing durational residency requirements). B ut, the Sup reme Court has a pplied a lesser burden when evaluating the constit u tionality of literacy tests, felon di s e n f r anchisement laws, and voter identification laws. See Lassiter v. Northampton C t y

. B d. of Elections

, 360 U.S. 45, 50 ( 1959) (upholding state statute that conditioned v oting elig ibility on abil i t y to read and write any section of the Constitution); Richardson v. Ramirez
, 418 U.S. 24, 5 6 (1974) (upholding th e a

bility o f states to disenfranchise felons); C r a wford v. Marion Cty.
, 5 53 U.S. 181, 202 (200 8 ) (upholding constitutionality o f s tate law requiring voter identification). I n other words, the Supreme Court counsels

u s t o approach the constitutionality of state election laws throug h a deferential lens. See B u r d ick

, 5 04 U.S. at 433 (“Common sense, as well as constitutional law, compels the conclusion that g o vernment m u st play an active r ole in structuring elections.”).

Apply ing Burdick ’s sliding scale of c o n s titutional scrutiny

, w e h ave “repeatedly u pheld as ‘not severe’ restrictions that are g e n e r ally a p plicable, e v e n

- handed, politically neutral, and protect the reliability and integ rity o f the election process.” Dudum

, 640 F

. 3d at 1 1 0 6 (citation omitted). I ndeed, we h a ve said that “voting reg ulations a re rarely subje c ted to strict scrutiny ,” and we are p a rticularly loathe to st r i k e down a s unconstitutional an entire election
sy stem. Id. at 1106, 1114.

II

The majority concludes that Tucson’s hy brid election
sy stem f o r e lecting its city council v iolates the “one person,

one v ote” principle announced in G ray v. Sanders , 372 U.S. 368, 380 (1963). According to the majority

, Tucson’s sy stemP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 18

violates equal protection principles by desig nating differ ent g eog raphical units for its primary and g e neral elections. The practical effect of t h e majority ’s decision today is the total eradication of Tucson’s voting sy stem, which has b e e n i n place since 1930. Tucson is n ow forced to choose b etween an entirely at-larg e method o f election or a ward-only method o f election despite the f

act that a majority of Tu c son citiz ens have twice before voted ag ainst adopting t h e se election
sy stems. T h e C onstitution d oes not require this sort o f judicial hig hjacking of state power. According ly

, I conclude th a t Tucson’s hy

brid election sy stem is constitutional. Several principles inform this conclusion.

A

Constitutional standards must b e s a tisfied in primary a s well a s in g eneral elections. Smith v. Allwright

, 321 U

. S. 649, 661–62 (1944). H owever, individuals do not have an

a b s o l u t e r ig ht to vote in a primary e lection. States may , for

ex a mple, host a “ closed” or “semiclosed” primary

, in which only people w ho are reg istered members of a major political party may vote. See Clingman

, 544 U.S. at 584; N a der v

. Schaffer

, 417 F

. Supp. 837, 850 ( D. Conn. 1976), aff’d mem. , 429 U.S. 989; see also Am. Party of Texas v. W hite

, 415 U.S. 767, 786 ( 1974) (holding that sta tes may establish waiting periods before v oters may be p e r mitted to c h a ng e their

r e gi stration and participate in another party ’s primary )

. I n other word s , t h e Constitution permits states to prohibit qualified individuals who are reg istered I nde p e n d e n t s (or w ho chose n ot to reg ister as a party member) from vot i n g in a primary election.

I n fact, we have upheld Ariz o na’s “closed prima r y ”
sy stem in the face of a F ourteenth Amendment c h a l leng eP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 19

similar to Plaintiff

s ’ challeng e here. I n Ziskis v. Symington
, an independent voter “ could not vote in the Ariz ona state primary election . . . because [ A riz ona law] denies a ny voter not affiliated with a p olitical party the opportunity

to vote in that party ’s primary .” 47 F.3d 1004, 1004–05 (9th Cir. 1995). Z iskis sued the state in federal district court alleg ing that the law violated his F ourteenth Amendment rig h t to vote. Id. at 1005. On a p p e a l

, w e ruled in favor of the state. W e held that the law did not overly burden Z iskis’s rig ht to vote because Z iskis could a ccess the ballot by associating with a political party , and if Z iskis chose n ot to r eg ister, “his rig ht to vote in the general election is unaffected.” Id. at 1006. The T hird Circuit recently resolved a similar F ourtee n t h Amendment challeng e to New J ersey ’s closed primary
sy stem. See Balsam v. Sec’y of N.J.
, No. 14-3882, 2015 W L 1544483, at *3 (3d Cir. A pr. 8, 2015). Th e c o u r t r easoned that v oters do not “have a constitutional rig ht to unqualified participation in primary elections,” and the burden the closed
p r i mary sy stem p laced on plaintiff’s rig hts was minor compared to the state’s interests. Id. a t *4–5.

W h ile Ziskis and Balsam do not r e s o l v e the ex act constitutional question pre s e n ted here, they do counsel that primary and g eneral elections are not on t h e same constitutional footing

. S e e 2 6 Am. J ur. 2d E lections § 223 (“A primary election is one that results in nominations rather than final elections to office. Thus, a primary election serves

a different function from a g eneral election, in tha t i t i s a competition for the party ’ s nomination, n o more, no less, a nd does not e l ec t a person to office but merely determines the candidate w ho will r

un f o r the o ffice i n the g eneral election.”). Primary elections in Tucson are, in short, nothing

more than the means political g roups u s e to choose the standard bearers who will face off in the g eneral election.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 20

B

The majority finds it to be “perfectly clear” that Tucson’s primary and g eneral elections are not independent and “must be considered in tand e m w h en d e t e rm i n i n g their constitutionality .” Ye t , t h e cases the majority cites do not establish that prim ary a

nd g eneral elections must a lway s be considere d tog ether. F or instance, United States v. Classic

, was an election fraud case where the federal g o vernment prosecuted certain state election commissioners for alleg edly falsifying ballots in a Democratic primary

. 31 3 U.S. 299, 307–08 (1941). Classic held that the Constitution secures the rig ht to have o ne’s “vote counted in both the g eneral election and in the primary election.” I d. a t 322; see also Smith

, 321 U.S. at 664–65 (holding that a political party may not c reate

a “whites o nly ” primary

). However, Classi c e x plained that the rig ht it recog niz ed only applied to v oters who were “qualified” to cast votes in the state’s D emocratic p r i m a r y

. 313 U.S. at 315. Notably

, Classic did not decide who was “qualified” to vote in the D emocratic p r i m a ry and left that distinction up to the state. See id. at 310–11.

Classic teaches us that Tucson can n o t deprive a “qualified” voter from voting in a ward primary

. However, Tucson retains broad discretion to decide who is “qualified”
to vote in its primaries. T h us, Classic does not preclude Tucson from setting up ward-based primarie s wh ose “qualified” voters are limited to the residents o f that particular ward.

The majority cautions that “if the city were permi t t e d to chang e the g eog raphical u nit between the primary and g eneral elections, it cou l d d e c ouple the representative to be elected from his const i t u en cy .” The majority creates twoP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 21

hy potheticals to illustrate its point: F irst, Tucson could decree that only v oters living on Mai n S t r e e t are elig ible to vote in primaries. Second, th e S t a t e of New Y ork could limit the primary f

or its junior s e n a t or to Manhattanites and the primary for its senior senator to the rest of the state.

B u t, an application of Burdick ’ s sliding scale o f constitutional scrutiny reveals that n e i t her of the majority ’s fictional state election sy stems w ould pass const i t u t ional
muster. First, both of these hy p o theticals eliminate larg e swaths o f city residents from voting in any pri m ary , which would likely be considered a “severe burden” on voting rig hts and subject to strict scrutiny under Burdick

. And second, the
states would have an ex tremely difficult time articulating any sort of leg itimate state interest in d e fe n s e o f these election
sy stems. Unlike the majority ’s hy p othetical state e l ection laws, Tucson’s hy

brid sy stem g ives each citiz en the rig h t t o vote in he r r e s p ective ward primary

, and Tucson has articulated a

n “important reg ulatory interest” to supp o r t its hy brid sy stem.

C

Gray v. Sanders

, 372 U.S. 368 (1963), is not as favorable
to the majority ’s position as it assumes. Gray held that states cannot construct elec t i o n schemes so that one person’s v ote is w e ig h ed more he a v i ly than another person’s vote. Id. at 380–81. And, let there be no d o u b t a b out this—“[ o ] nce the
g eog raphical unit for which a representative is to be chosen is desig nated, all who participate in the election a re to have an

e qual vote.” Id. at 379. However, the Supreme Co u r t h a s

never before held that the same g eog raphical unit must a pply to both the primary

and g eneral elections.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 22

I n asserting the contrary , the majority misreads Gray a nd views the case in a vacuum. Since Gray
, the l a w o n “one
person, one vote” h a s d e alt almost ex clusively with

co n g r essional redistricting a nd malapportionment, see, e.g. , Reynolds v

. Sims
, 377 U .S

. 533, 557 (1964), principles that

are not at issue here. A n d, the Supreme Court h as squarely rejected the notion that an individual has a rig ht to vote in any election that mig ht impact her life and livelihood. See Holt

, 439 U .S. at 6 9 ( “ N o d e cision of this Court has ex tended the ‘one man, one vote’ principle to individuals residing bey ond the g e og raphic co n f

i n es of the g o vernmental entity concerned, be it the State or its political subdivisions.”).

Gray d oes not deprive states of their broad a uthority to set the g eog raphical unit from which a r epresen t a t i ve is to be elected. See Holt , 439 U.S. a t 68–69 (holding that city need
not e x tend the franchise to the c iti z e n s of b ordering

m u n i c ipalities, even thoug h those citiz ens are subject to the city ’s criminal law ju r i s d i ction); see also Green v. City of Tucson
, 340 F .3d 8 91, 8 9 3 ( 9 th Cir. 2003) (upholding Ariz ona’s a

nnex a tion law that “draws ge o g raphical distinctions” between voters l iving in unincorporated communities); City of

H erriman v. Bell

, 590 F .3d 1 176, 1185 (10th Cir. 2010) (“[ T] he state has the rig ht to draw different b o u ndaries for voting p urposes—and we g enerally defer to thes e d e lineations—as long a s the separate units f urther reasonable g overnment objectives.”). Simply put, G ray does not reach as far as the majority mig h t wish.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 23

III

A

F rom this it follows that Tucson’s hy brid primary sy stem does not “ severely burden ” the Plaintiffs’ rig ht to vote. During Tucson’s primary election, the law ensures that each elig ible voter within the relevant g eog raphical unit—the ward—has an equal rig ht to vote. The same holds true f or the
g eneral election: Each e lig ible voter within th e relevant
g eog raphical u nit—the city —has a n equal r ig ht t o v ote. Thus, the Plaintiffs are only entitled to v o t e i n the primary election of the ward in which they reside. B ut, their rig h t to

v o t e i n their w ard primary is not burdened in any way

. S e e Holt , 439 U.S. at 68–69.

The majority finds that “the practical effect of the T u cson sy stem is to g ive some of a representati v e ’ s constituents— those in his home ward—a vote o f disproportionate weig ht.” Not so. W h ile a City Council member, once elected, is likely
to be alert to the particular needs o f his home ward, every sing le vote in Tucson’s election s a r e w eig hted the same. I n fact, the hy

brid sy stem’s a

bility to f oster a ttentiveness to local needs is precisely the reason it was created in the first place: the ward-based primary helps to ensure that each ward has a nominee for City Council who is awar e o f that w ard’s particular needs.

B

W h en a state election law places no sev e re burden on voters’ rig h ts, “a [ s] tate’s important reg ulatory interests will usually be enoug h to just i f y r easonable, nondiscriminatory restrictions.” Clingman

, 54 4 U .S. at 593. Tucson h as aP U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 24

leg itimate interest in ensuring g eog r ap hic diversity o n the City Council, and the hy brid sy stem fairly a d v a n c es this leg itimate interest. Specifica l l y , Defendants p ersuasively
assert:

H av i ng nominations throu gh p r i m a r y elections in each ward, using separate ballots for e ach party , a ll o w s the party electorates in each of those wards to make their own choice of a nominee, and simultaneously acts as a g uarantee f

or the City elec t o rate as a whole that each ward’s n ominee actually has support among the party members wit h i n that ward. Moreover, since nominees compete in the
g eneral election only ag ainst other candidates nominated in the same ward, see Compl. ¶ 24, ward nominations a lso help assure that e ach ward h as a local representative on the council, and conversely

, that the f ull May or a

nd Council has members who are aware of e ach

w a rd’s issues, problems, and views

. . . . Th e principal and adequ a t e r eason for providing for the election of one councilman from each boroug h is to a ssure that th er e w ill be members of the City Co u n c i l with some g eneral knowledg e of rural problems to the end that this heterog eneous city w ill be able to g ive some due consideration to questions presented throug hout the entire area.

This important reg ulatory interest is sufficient to justify any burden the hy

brid sy stem p l a ces on Plaintiffs’ rig ht to vote.P U B L I C I N T E G R I T Y A L L I A

N C E V

. C I T Y O F T U C S O N 25

IV

Tucson’s hy

brid sy stem is constitutional, and the majority

errs in holding otherwise. Supreme Court precedent teaches

us that a municipality ha s b road authority to establish the relevant g eog r aphical u nits f or its elections. See Holt

, 439 U.S. at 68–69. F urthermore, the majority points to no case that requires a municipality to use the same g eog r aphical unit for b o th its primary and g eneral e lections, cf. Gray
, 372 U.S.
at 381, and the majority ’s holding to the c ontrary stretches the “o n e person, one vote” principle bey ond its traditional application. F inally

, b e c ause primary and g eneral elections

are not constitutionally equal, see Balsam

, 201 5 W L 1544483, at *3, state la w s may narrow the franchise in a primary election without ru n n i n g a foul of the F ourteenth Amendment, see Ziskis

, 47 F .3d at 1 0 0 5

– 0 6

. See a lso N.Y

. State Bd. of E lections v. Lopez Torr es , 552 U.S. 196, 206 (2008) (permitting nomination by party convention). I n short, the Constitution permits Tucson to set different g eog raphical units for its primary

and g eneral elections.

I respectfully

dissent.