City of Tucson v. State

ESPINOSA, Judge,

dissenting in part and concurring in part.

¶ 29 I respectfully disagree with my colleagues’ narrow and, in my estimation, somewhat parochial view of what constitutes a legitimate statewide interest with regard to the integrity of Arizona’s elections, as well as its conclusion that § 9-821.01(C) does not advance that interest and the requirements of the federal Voting Rights Act (VRA). Due to past voting inequities, Arizona is a “covered jurisdiction” under Section Five of the Act and is one of only nine states subjected to additional scrutiny by the United States Department of Justice (DOJ). See 28 C.F.R. pt. 51 app. Accordingly, as a covered jurisdiction, before any law, ordinance, or regulation affecting voting in any of its political subdivisions may be enacted or repealed, the state must either file a declaratory judgment action in United States District Court for the District of Columbia or submit a copy of the enactment to the United States Attorney General, along with explanations, statements, and information required and suggested by 28 C.F.R. § 51.27, and then wait for approval or denial. 42 U.S.C. § 1973c.7 As the majority acknowledges, in order to be exempted from this preclearance requirement under the so-called “bailout” provision of 42 U.S.C. § 1973b, the state would be required to demonstrate that, for the last ten years, neither it nor any of its political subdivisions had engaged in any discriminatory voting practice, § 1973b(a), and that it had “eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process,” § 1973b(a)(1)(F).8

¶ 30 The majority does not truly dispute that satisfying the requirements of the VRA would constitute a valid state interest. And it acknowledges that at-large elections in other jurisdictions have been associated with voting abuses, including vote dilution and voter discrimination. My colleagues conclude, however, that our legislature’s expression of the state’s interest, § 9-821.01(0, does not “meaningfully support” the state’s concern because it is not “a blanket prohibition on at-large elections,” but rather is tailored to only one type of at-large election.

¶ 31 In my view, this reasoning disregards the preventative obligation imposed both by *482our state constitution and the VRA and thus misconstrues the state’s interest here. As noted above, in order to be relieved of the federal preclearance requirements by way of the bailout provision, the state must demonstrate that neither it nor any political subdivision had engaged in any discriminatory voting practice and show it has “eliminated voting procedures and methods of election which inhibit or dilute equal access to the electoral process.” §§ 1973b(a), 1973b(a)(1)(F). Here, through § 9-821.01(C), the legislature has responded to the only method of at-large voting in the record, which is the method employed in Tucson. In so doing, it has acted to preempt any finding that Tucson has engaged in any discriminatory voting practice through its at-large voting system, a finding that would jeopardize the state’s compliance with the Act and eligibility for relief from the preclearance requirements of § 1973c. See § 1973b(a). In addition, the legislature has acted to “eliminate[ ] voting procedures and methods of election which inhibit or dilute equal access to the electoral process,” consistent with article VII, § 12 of the Arizona Constitution, which provides: “There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise” (emphasis added), and the showing required under the bailout provision. § 1973b(a)(1)(F).

¶32 Although the legislature could have prohibited other hypothetical types of at-large voting in addition to addressing an actual situation, it was not required to take such steps under the mandates of the Act. See §§ 1973b(a), 1973b(a)(1)(F). Indeed, the scrutiny federal authorities have given various at-large voting schemes in other states was based on actual voting systems currently in place. See, e.g., Charleston County, 365 F.3d at 343 (federal suit brought against Charleston County’s at-large elections of county council members; voting method alleged to have diluted minority voting strength); Blaine County, 363 F.3d at 900 (government alleged Blaine County’s “at-large voting system for electing members to the County Commission prevented] American Indians from participating equally in the County’s political process”); Vill. of Port Chester, 704 F.Supp.2d at 416 (federal suit alleged Village of Port Chester’s at-large voting system for electing members of Port Chester Board of Trustees denied Hispanic population equal opportunity to participate in political process and elect representatives of their choice).

¶ 33 Moreover, contrary to the majority’s theory that the state cannot rely on an interest relating to the VRA because “the statute does not restrict the entirely aWarge elections that have been attacked as discriminatory by the DOJ,” there is no meaningful way to distinguish the potential discriminatory effect arising from entirely at-large elections from the type of at-large elections taking place in Tucson because they both employ the same potentially discriminatory method. See Growe v. Emison, 507 U.S. 25, 40, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (“We have ... stated on many occasions that ... at-large plans ... generally pose greater threats to minority-voter participation in the political process than do single-member districts....”). Significantly, voting systems similar to the one employed in Tucson have been the subject of VRA litigation. See, e.g., Badillo v. City of Stockton, 956 F.2d 884, 886-87 (9th Cir.1992) (city council voting system used single-district primary elections to advance two most successful candidates from each district to at-large general election where all city voters selected which of the two nominees from each district would serve on council; system “embod[ies] many of the classic devices for reducing a minority’s ability to elect representatives”).

¶ 34 Nor is the legislature prevented from later addressing other types of at-large voting that may be implemented by Tucson or other cities. Thus, contrary to the majority’s reasoning, that § 9-821.01(C) does not contain a “blanket prohibition” of at-large elections does nothing to undermine the fact that the legislation has furthered the state’s ability to guard against discriminatory election practices as well as comply with the Act and qualify for its bailout provision.9 Stated dif*483ferently, under the majority’s reasoning, the state cannot protect and further its own interest by addressing a specific potential harm of which it is aware unless, at the same time, it also addresses all types of other potential and theoretical types of harm as well.

¶ 35 Because I conclude § 9-821.01(C) furthers valid state interests, and because the majority does not reach the issue of whether the state’s compliance with the bailout provision is a legitimate statewide concern, I offer this additional discussion.

¶ 36 As noted earlier, both the Arizona Constitution and federal law serve as incentives to our state legislature to prevent voting abuses. See Ariz. Const, art. VII, § 12 (“There shall be enacted registration and other laws to secure the purity of elections and guard against abuses of the elective franchise.”); 42 U.S.C. § 1973b (outlining bailout standards). Were the state able to meet the terms and added requirements of § 1973b it could seek a declaratory judgment exempting it from the burdens of the preclearanee process required by § 1973c. See Nw. Austin Mun. Util. Dist. No. One, — U.S. at —, 129 S.Ct. at 2508 (observing preclearanee and bailout requirements impose “rigorous conditions”).10 I see no reason why the state legislature, acting pursuant to its state constitutional duty to protect elections, need wait for a challenge or pronouncement from the federal government that the at-large voting system as practiced in Tucson is discriminatory and constitutionally deficient before forbidding it. Indeed, in light of the purposes of, and consequences under, the VRA, see 42 U.S.C. §§ 1973, 1973a, restricting the state from enacting targeted legislation to prevent such a finding before it occurs seems counterproductive and at odds with the spirit of federal and state efforts to protect voting rights. Although the majority relies heavily on Strode, when there is a valid statewide concern, as I believe to be the ease here, Strode mandates that the statute supersede the conflicting city charter.11 72 Ariz. at 363, *484236 P.2d at 50; see also City of Tucson, 191 Ariz. at 438, 957 P.2d at 343.

¶37 Because the at-large voting prohibition in § 9-821.01(0) was enacted pursuant to a strong statewide interest informed by federal law and state constitutional mandate, Tucson’s city charter does not trump § 9-821.01(C). Accordingly, the trial court did not err in so finding and I would affirm this portion of its order granting summary judgment.

. Sections 51.27 and 51.28, 28 C.F.R., identify eighteen items that must be submitted, including statements related to purposes and likely effects of proposed changes, and eight supplemental submissions that are "most likely to be needed with” complex proposals. The supplemental list includes, inter alia, demographic information, records of media coverage, and specific election returns.

. Contrary to the majority's assertion, the federal bailout provision was not merely an unheralded "after-the-fact justification by skillful counsel,” but instead was prompted by this court's preliminary draft decision, distributed to the parties in advance of oral argument, in which it was observed that only the city, not the state, would be subject to a federal action for a violation of voting rights perpetrated by the city. Moreover, although the state may not have used the word "bailout” in its answering brief, it clearly referred to the preclearance requirement of the Voting Rights Act (VRA) and Arizona’s interest in complying with that law.

. As the majority decision recognizes, whether the legislature articulates a specific interest, or, *483as in this case, one that is sufficiently specific, is not dispositive of whether the legislation in fact furthers a valid state interest. See City of Tucson, 191 Ariz. at 439, 957 P.2d at 344; cf. Lerma v. Keck, 186 Ariz. 228, 233, 921 P.2d 28, 33 (App.1996) (in determining whether legislation advances legitimate interest for purposes of equal protection challenge, court may consider not only legislature's articulated purpose, but any hypothetical basis for enacting legislation). Furthermore, while the majority gleans from the legislative history a comment of one sponsor that appears to undermine the expressed purpose of the statute’s declaration of intent, it ignores the statements of another, whose exhortations to legislative committees went to the heart of the issue here, specifically invoking the potential for voting abuses under at-large elections and the VRA. See Hearing on S.B. 1123 Before the H. Comm, on Judiciary, 49th Leg., 1st Reg. Sess. (Ariz. June 25, 2009), http://azleg.granicus.com/MediaPlayer. php?view_id=16&clip_id=5817, at 2:28-2:30 (statement of Sen. Jonathan Patón, co-sponsor of S.B. 1123); Hearing on S.B. 1123 Before the S. Comm, on Judiciary, 49th Leg., 1st Reg. Sess. (Ariz. June 8, 2009), http://azleg.granicus.com/ MediaPlayer.php? view_id=16&clip_id=5557, at 6-7 (same).

. The majority's discovery of an unrelated 2009 amicus brief in which the former Arizona Attorney General joined in describing the federal preclearance process as "not placing] an onerous burden on states" in view of its "allowing our Nation to make substantial progress toward eliminating voting discrimination” in no way diminishes the validity of this compelling state interest. Brief for the States of N.C., Ariz., Cal., La., Miss, and N.Y. as Amici Curiae Supporting Appellee, Nw. Austin Mun. Util. Dist. No. One, - U.S. -, 129 S.Ct. 2504 (No. 08-322), 2009 WL 815239, at *1. Moreover, whenever preclearance is required, there is potential for significant burden and delay. For example, in 2002, Arizona submitted a proposed redistricting plan to the Department of Justice (DOJ) for preclearance, but a decision was delayed for months by the DOJ’s request for additional information. See Navajo Nation v. Ariz. Indep. Redistricting Comm'n, 230 F.Supp.2d 998, 1002-04 (D.Ariz.2002). This meant that candidates, who faced imminent deadlines for collecting signatures, qualifying for public contributions, and filing petitions, did not know which district boundaries to use. Id. Affected parties and entities appealed to the state legislature for assistance, which responded by enacting an emergency measure addressing the situation. But this legislation also had to be submitted to the DOJ for preclearance, leading to litigation in federal court. Id. The DOJ ultimately denied the plan, and additional changes had to be adopted before it was finally approved. Id. at 1004.

. Although my colleagues repeatedly rely on our supreme court’s language in Strode that it could "conceive of no essentials more inherently of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected,” 72 Ariz. at 368, 236 P.2d *484at 54, this 1951 case was decided over ten years before the enactment of the VRA. Had this sweeping federal legislation, which made states accountable for the voting practices of their political subdivisions, been in effect at the time, it is possible, if not likely, the Strode court would have tempered some of its broad language. In any event, Strode supports the result reached by the trial court here in light of the legitimate state interest at stake. See id. at 363, 236 P.2d at 50. The majority’s additional citation to Triano, decided after passage of the VRA, is inapposite. Triano dealt with candidates' residency requirements and did not implicate the state’s compliance with federal law. 109 Ariz. at 508, 513 P.2d at 937.