                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PUBLIC INTEGRITY ALLIANCE, INC.,         No. 15-16142
an Arizona nonprofit membership
corporation; BRUCE ASH, an
individual; FERNANDO GONZALES,              D.C. No.
an individual; ANN HOLDEN, an            4:15-cv-00138-
individual; LORI OIEN, an individual;         CKJ
KEN SMALLEY, an individual,
                Plaintiffs-Appellants,
                                           OPINION
                  v.

CITY OF TUCSON, a chartered city of
the State of Arizona; JONATHAN
ROTHSCHILD, in his capacity as the
Mayor of the City of Tucson;
REGINA ROMERO, in her capacity as
a member of the Tucson City
Council; PAUL CUNNINGHAM, in his
capacity as a member of the Tucson
City Council; KARIN UHLICH, in her
capacity as a member of the Tucson
City Council; SHIRLEY SCOTT, in her
capacity as a member of the Tucson
City Council; RICHARD FIMBRES, in
his capacity as a member of the
Tucson City Council; STEVE
KOZACHIK, in his capacity as a
2      PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

 member of the Tucson City Council;
 ROGER RANDOLPH, in his capacity as
 the Clerk of the City of Tucson,
                Defendants-Appellees.


         Appeal from the United States District Court
                  for the District of Arizona
         Cindy K. Jorgenson, District Judge, Presiding

                   Argued and Submitted
         August 11, 2015—San Francisco, California

                    Filed November 10, 2015

    Before: Alex Kozinski and Richard C. Tallman, Circuit
    Judges, and Lawrence L. Piersol,* Senior District Judge.

                   Opinion by Judge Kozinski;
                    Dissent by Judge Tallman




 *
   The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
      PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                      3

                           SUMMARY**


                            Civil Rights

   The panel reversed the district court’s judgment in favor
of the City of Tucson in an action challenging the
constitutionality of Tucson’s hybrid system for electing
members of its city council.

    Tucson is divided into six wards of approximately equal
population, and each ward is allotted one seat on the city
council. Under the first step of the hybrid system each ward
holds its own primary limited to residents of that ward. The
winners of the ward primaries advance to the general election,
where they compete against the other candidates nominated
from that ward. In the general election, all Tucson residents
can vote for one council member from each ward that held a
primary during the same election cycle.

    The panel first held that in determining the system’s
constitutionality, the primary and general elections must be
considered in tandem as two parts of a single election cycle,
rather than two separate contests judged independently of one
another.

    The panel determined that the practical effect of the
Tucson system is to give some of a representative’s
constituents—those in his home ward—a vote of
disproportionate weight. That is the very result the Supreme
Court’s one person, one vote jurisprudence is meant to

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

foreclose. The panel held that every otherwise eligible voter
who will be a constituent of the winner of the general election
must have an equal opportunity to participate in each election
cycle through which that candidate is selected.

    The panel rejected Tucson’s argument that the hybrid
system is a reasonable “residency restriction” on the right to
vote. The panel held that when two groups of citizens share
identical interests in an election, the city may not use a
residency requirement to exclude one group while including
the other. The panel concluded that excluding out-of-ward
voters from the primary election discriminates among
residents of the same governmental unit in violation of the
Equal Protection Clause of the Fourteenth Amendment.

    Dissenting, Judge Tallman stated that the Constitution
does not require Tucson to draw its district borders in a
particular way for different local elections. He concluded that
Tucson’s hybrid system is constitutional, and the majority
erred in holding otherwise.


                         COUNSEL

Kory A. Langhofer (argued), Thomas J. Basile and Roy
Herrera, Jr., Brownstein Hyatt Farber Schreck, LLP, Phoenix,
Arizona, for Plaintiffs-Appellants.

Michael G. Rankin, City Attorney, Dennis McLaughlin
(argued), Principal Assistant City Attorney, Office of the
Tucson City Attorney, Tucson, Arizona, and Richard
Rollman, Gabroy Rollman & Bosse PC, Tucson, Arizona, for
Defendants-Appellees.
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON             5

                         OPINION

KOZINSKI, Circuit Judge:

    We consider the constitutionality of Tucson’s unusual
system for electing members of its city council.

                           FACTS

    Tucson’s elections are ordinary in many ways. The city
is divided into six wards of approximately equal population,
and each ward is allotted one seat on the city council. A
candidate for city council must run for the seat in the ward
where he resides. See Tucson City Charter ch. III, § 1; ch.
XVI, §§ 5, 8, 9. From there, things take an odd turn.

    In some American cities, council seats are filled at large,
with the entire city voting for each seat in the primary and
general elections. In other cities, council members are
nominated and elected by the residents of particular districts.
Tucson splits the difference: Since 1930, the city has used a
“hybrid system” that combines ward-based primaries with at-
large general elections.

    The first step in the hybrid system is a partisan primary.
Each ward holds its own primary limited to residents of that
ward. The winners of the ward primaries advance to the
general election, where they compete against the other
candidates nominated from that ward. In the general election,
all Tucson residents can vote for one council member from
each ward that held a primary during the same election cycle.
See Charter ch. XVI, § 9. Thus, a resident of Ward 1 can’t
vote in the Ward 2 primary, but can vote for one of the Ward
2 candidates in the general election. The parties agree that,
6       PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

once elected, council members represent the entire city, not
just the ward from which they were nominated. See City of
Tucson v. State, 273 P.3d 624, 631 (Ariz. 2012) (“Tucson
council members, although nominated by ward, represent the
entire city, just as do council members elected at large in
other cities.”); see also Dallas Cty. v. Reese, 421 U.S. 477,
480 (1975) (“[E]lected officials represent all of those who
elect them . . . .”); Fortson v. Dorsey, 379 U.S. 433, 438
(1965) (similar).

    Council seats are filled in staggered elections, with three
council members elected every other year. Once elected, a
council member serves a four-year term. See Charter ch.
XVI, §§ 3–4. The council members from Wards 1, 2 and 4
will be elected in 2015, and the council members from Wards
3, 5 and 6 will be elected in 2017. Because only half of the
council seats are up for election in any given year, only half
of Tucsonans can vote in a primary in each election cycle.
And approximately 83 percent of the electorate that votes for
any given council seat in the general election has no say in
selecting the nominees competing for that seat.

    Plaintiffs are five Tucson voters and a non-profit
corporation called the Public Integrity Alliance (collectively
“PIA”). PIA concedes that the city could use ward-based
primaries and ward-based general elections without offending
the Constitution. Similarly, the city could use at-large
primaries and at-large general elections. But PIA argues that
combining these two options into a hybrid system violates the
federal and Arizona Constitutions1 by depriving Tucson


    1
       PIA alleges that the hybrid system violates the Free and Equal
Elections Clause of the Arizona Constitution. Ariz. Const. art II, § 21.
We have been cited no authority indicating that the rights guaranteed by
      PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                    7

voters of their right to vote in primary elections for
individuals who will ultimately serve as their at-large
representatives. PIA sued the city seeking to enjoin the
hybrid system and secure a declaration that the scheme is
unconstitutional. The district court ruled in favor of the city.
We have jurisdiction under 28 U.S.C. § 1291.

                          DISCUSSION

    We start by resolving a dispute between the parties that
has a substantial bearing on our analysis and, ultimately, on
the result we reach: Are Tucson’s primary and general
elections two separate contests, each governed by rules that
must be judged independently of one another—as the city
contends? Or are they two parts of a single election cycle,
which must be considered in tandem when determining their
constitutionality—as PIA claims? The difference matters a
great deal. If the two elections were separate, PIA’s
constitutional objections would largely evaporate and this
would become a simple case. This is so because there would
be no mismatch between the voting constituency and the
represented constituency in the two elections. It’s only if we
view the two elections as one that serious constitutional
doubts arise.

     Unfortunately, the easy solution is not available because
it is perfectly clear that the two contests are not independent.
Instead, they are complementary components of a single
election. Although the two contests are separated in time by


that document differ from those guaranteed by the federal Constitution.
Because PIA did not develop any state-law arguments in its appellate
briefing, we consider the state-law claims abandoned. See Greenwood v.
F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
8    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

ten weeks, they are entirely co-dependent. 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.” United States v. Classic, 313 U.S. 299, 319 (1941).
Thus, the Supreme Court has held that the primary and
general elections are a “single instrumentality for choice of
officers.” Smith v. Allwright, 321 U.S. 649, 660 (1944); see
Newberry v. United States, 256 U.S. 232, 284–86 (1921)
(Pitney, J., concurring in part) (noting that the primary and
general elections are “essentially but parts of a single
process”).

    Because the primary and general elections are two parts
of a “unitary” process, Allwright, 321 U.S. at 660–61, a
citizen’s right to vote in the general election may be
meaningless unless he is also permitted to vote in the
primary. If a voter’s preferred candidate is defeated in a
primary from which the voter is excluded, the voter would
never have the chance to cast a ballot for his candidate of
choice. Cf. Morse v. Republican Party of Va., 517 U.S. 186,
205 (1996) (invalidating registration fee for Virginia
senatorial nominating convention because the fee limited
voters’ “influence on the field of candidates whose names
[would] appear on the ballot” and thus “weaken[ed] the
‘effectiveness’ of their votes cast in the general election
itself”); Bullock v. Carter, 405 U.S. 134, 146 (1972) (“[T]he
primary election may be more crucial than the general
election . . . .”); Classic, 313 U.S. at 319 (observing that “the
practical influence of the choice of candidates at the primary
may be so great as to affect profoundly the choice at the
general election”); Ayers-Schaffner v. DiStefano, 37 F.3d
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                9

726, 728 n.5 (1st Cir. 1994) (noting that “the ability to vote
in the general election [is not] a satisfactory alternative for
those voters not allowed to vote in the primary, as the
candidate of their choice may have been excluded in the
preliminary election from which they were barred”).

    This case illustrates the point. Although Arizona as a
whole generally votes Republican, Tucson generally votes
Democratic. This means that the Democratic nominee from
each ward will likely win the general election regardless of
whether the ward from which he was nominated is principally
Republican or Democratic. Indeed, the city’s current mayor
and all six council members are Democrats. See Tucson City
Council Democratic Incumbents Re-Elected, Arizona Public
Media (Nov. 6, 2013), available at https://goo.gl/oMkOxi. In
most cases, then, the Democratic ward primary is the only
election that matters; the general election is a mere formality.
Even if electing the Democratic nominee is not automatic,
there is no dispute that the Democratic nominee enters the
general election with an enormous advantage. Thus the vote
in the primary—and particularly the Democratic primary—
has a commanding influence on the outcome of the general
election. Yet 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.

    The Supreme Court has indicated that, “[o]nce 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” no matter where “their home may be in that
geographical unit.” Gray v. Sanders, 372 U.S. 368, 379
(1963). Gray defines the “geographical unit” by reference to
the constituency of “the representative to be chosen.” Id. at
10    PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

379; see id. at 382 (Stewart, J., concurring) (“Within a given
constituency, there can be room for but a single constitutional
rule—one voter, one vote.” (emphasis added)). All parties
before us agree that the constituency of each Tucson council
member is the entire city. Thus, the relevant geographical
unit is the city at large. Because the constituency of the
representative to be elected remains static throughout the
election process, the geographical unit must also remain static
throughout that process.2

    If the city were permitted to change the geographical unit
between the primary and general elections, it could decouple
the representative to be elected from his constituency. For
example, Tucson could decree that only voters living on Main
Street are eligible to vote in primaries, thereby forcing the


  2
        We are not persuaded by the city’s reliance on two decades-old
district court opinions that dealt with hybrid systems for judicial elections.
Holshouser v. Scott and Stokes v. Fortson involved challenges to state
laws providing that judges would be nominated from their districts but
elected statewide in the general election. In both cases, three-judge
district courts ruled that the principle of one person, one vote is not
applicable to judicial elections. Both courts went on to observe that, even
if that were not the case, the hybrid schemes would not violate one person,
one vote because they didn’t involve dilution or an unequal counting of
votes. See Holshouser, 335 F. Supp. 928, 930, 933 (M.D.N.C. 1971);
Stokes, 234 F. Supp. 575, 577 (N.D. Ga. 1964). The city argues that the
Supreme Court’s summary affirmance in Holshouser, 409 U.S. 807
(1972), is a ruling on the merits that requires us to uphold Tucson’s hybrid
system. But a “summary affirmance without opinion in a case within the
Supreme Court’s obligatory appellate jurisdiction has very little
precedential significance.” Dillenburg v. Kramer, 469 F.2d 1222, 1225
(9th Cir. 1972). It does not enshrine as Supreme Court precedent every
stroke of the pen in the district court’s opinion. The summary disposition
in Holshouser was likely intended to affirm the proposition that one
person, one vote does not apply to judicial elections, as the Court
eventually held in Chisom v. Roemer, 501 U.S. 380, 402–03 (1991).
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON             11

entire city to choose among nominees selected by a tiny
minority of residents. Or the State of New York, in an effort
to cap its number of city-slicker senators, could limit the
primary for its junior senator to Manhattanites and the
primary for its senior senator to the rest of the state. We do
not believe that such mismatches between voters at different
stages of a single election cycle are constitutionally
permissible.

    Given the city’s concession that each council member
represents all of Tucson, it’s clear that the representational
nexus runs between the city and the council member, not
between the ward and the council member. But the hybrid
system makes the tenure of each at-large council member
largely dependent on the preferences of voters of his home
ward; without their support, a council member could not be
nominated (or re-nominated) in the first place. Given that
reality, each council member will be disproportionately
responsive to voters from his home ward, especially those of
his own party. The city claims that this is a redeeming
benefit of its hybrid system. The exact opposite is true. The
practical effect of the Tucson system is to give some of a
representative’s constituents—those in his home ward—a
vote of disproportionate weight. 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. 533, 560–64
(1964). We cannot endorse an election system that
encourages at-large representatives to prioritize kissing
babies and currying favor in their home wards over the
interests of their constituents who happen to live in other
parts of the city. As the Supreme Court itself has noted, an
at-large representative “must be vigilant to serve the interests
of all the people in the [city], and not merely those of people
in his home [ward].” Fortson, 379 U.S. at 438.
12   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

    We hold that every otherwise eligible voter who will be
a constituent of the winner of the general election must have
an equal opportunity to participate in each election cycle
through which that candidate is selected. Just as the city
could not exclude a resident of Ward 1 from voting in the
general election for his council member from Ward 2, so the
city may not exclude that resident from a primary election for
the same official. See Allwright, 321 U.S. at 664 (“[T]he
same tests to determine the character of discrimination or
abridgement should be applied to the primary as are applied
to the general election.”); Classic, 313 U.S. at 318 (“[The]
right of participation [in the nominating process] is protected
just as is the right to vote at the election. . . .”).

    The city’s final argument is that the hybrid system is a
reasonable “residency restriction” on the right to vote. But
when two groups of citizens share identical interests in an
election, the city may not use a residency requirement to
exclude one group while including the other. See Town of
Lockport v. Citizens for Comm. Action at the Local Level,
Inc., 430 U.S. 259, 268 (1977) (residency requirements must
be premised on a “genuine difference in the relevant interests
of the groups that the state electoral classification has
created”); id. (excluded group must be permitted to vote if it
has “substantially identical interests” as included group);
Evans v. Cornman, 398 U.S. 419, 422–26 (1970) (residents
of federal enclave within Maryland couldn’t be excluded
from the franchise because they had “a stake equal to that of
other Maryland residents”); see also Holt Civic Club v. City
of Tuscaloosa, 439 U.S. 60, 72 n.8 (1978) (suggesting that a
city might be required to enfranchise non-residents if it were
“exercising precisely the same governmental powers over
[them] as it does over those residing within its corporate
      PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                   13

limits”).3 In this case, the out-of-ward Tucsonans who are
excluded from the ward primaries have precisely the same
interests in those primaries as do the ward residents who are
permitted to participate. The nominees selected in the ward
primaries will advance to the general election; if elected
there, they will represent the entire city. Because all
Tucsonans have an equal interest in determining who the
nominees will be, the city may not exclude 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 challenge to South
Dakota’s scheme for governing its unorganized counties. The
residents of the unorganized counties were governed by
elected officials in the nearest organized county, but only the
residents of the organized county were allowed to vote for
those officials. The state defended this scheme as a
reasonable residency requirement. Id. at 1255. In its view,
the residents of the unorganized counties (who were mainly
Native Americans) did not share the same interests in the
elections as did the residents of the organized counties. The
Eighth Circuit rejected the argument. Citing Cornman, that


  3
       Nothing we say has any bearing on the city’s existing candidate-
residency requirement, which requires each council member to run for the
seat from the ward in which he resides. See Tucson City Charter ch. XVI,
§§ 5, 9. The Supreme Court has twice upheld similar schemes. Dusch v.
Davis, 387 U.S. 112, 114–16 (1967); Dallas Cty. v. Reese, 421 U.S. 477,
480–81 (1975). In light of Dusch and Reese, the city argues that we are
bound to approve the voter-residency requirements imposed by the hybrid
system. But, despite the similarity in names, candidate-residency
requirements are quite different than voter-residency requirements.
Neither Dusch nor Reese requires that the same constitutional principles
governing candidate-residency requirements also apply to voter-residency
requirements. See Dusch, 387 U.S. at 115–16.
14   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

court held that a state may not use a residency requirement to
prevent citizens from voting for “those who will function as
their elected officials.” Id. at 1258. The court applied strict
scrutiny and invalidated the scheme. Id.

    The fact that two groups live on opposite sides of a
political boundary does not necessarily mean they can be
treated differently for voting purposes. This is the teaching
of Little Thunder. 518 F.2d at 1256; see English v. Bd. of
Educ. of Town of Boonton, 301 F.3d 69, 77, 79 (3d Cir.
2002); United States v. South Dakota, 636 F.2d 241, 245 (8th
Cir. 1980); see also Holt Civic Club, 439 U.S. at 81, 86
(Brennan, J., dissenting) (cautioning against “ced[ing] to
geography a talismanic significance”). If two groups are
represented by the same politician, they are necessarily part
of a “single unit of local government.” Little Thunder, 518
F.2d at 1256. Any boundary that purports to sub-divide that
single unit is hopelessly arbitrary, and any “residency
restriction” that disenfranchises citizens based on where they
live in relation to that arbitrary boundary cannot stand.
Excluding out-of-ward voters from the primary election
discriminates among residents of the same governmental unit
in violation of the Equal Protection Clause of the Fourteenth
Amendment.

     REVERSED.



TALLMAN, Circuit Judge, dissenting:

   There are certain times when a federal court may tell a
municipality how to run its local elections. This is not one of
them. Tucson’s hybrid election system does not invidiously
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON              15

discriminate against voters based on their race, ethnicity,
gender, or wealth. Rather, plaintiffs argue—and the majority
agrees—that Tucson unconstitutionally denies its citizens the
right to vote by setting different geographical units for its
councilmanic primary and general elections. Because I
conclude that the Constitution does not require Tucson to
draw its district borders in a particular way for different local
elections, I respectfully dissent.

                               I

    “The Constitution grants States broad power to prescribe
the ‘Times, Places and Manner of holding Elections for
Senators and 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 recognized that government
“is the science of experiment” and that states are “afforded
wide leeway when experimenting with the appropriate
allocation of state legislative power.” Holt v. City of
Tuscaloosa, 439 U.S. 60, 71 (1978) (citing Anderson v. Dunn,
6 Wheat. 204, 226 (1821)). However, a state’s power over its
electoral procedures is not absolute and “must pass muster
against the charges of discrimination or of abridgment of the
right to vote.” Moore v. Ogilvie, 394 U.S. 814, 818 (1969).

                               A

    Conspicuously absent from the majority’s opinion is any
mention of the appropriate standard of review. In Burdick v.
Takushi, 504 U.S. 428, 434 (1992), the Supreme Court
announced the standard for evaluating laws respecting the
right to vote. Although we typically invoke strict scrutiny to
evaluate state laws that implicate fundamental rights, Burdick
16   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

requires courts to apply a more deferential level of scrutiny to
most state election laws that abridge the fundamental right to
vote. Id. at 433; Dudum v. Arntz, 640 F.3d 1098, 1113 (9th
Cir. 2011) (recognizing that Burdick creates a sliding scale
standard of review). Courts determine the appropriate level
of scrutiny to evaluate a state election law by examining the
burden the law imposes on voters’ rights and then weighing
that burden against the state’s legitimate interest in
maintaining the law. Burdick, 504 U.S. at 434 (citing
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)); Lauren
Watts, Reexamining Crawford: Poll Worker Error as a
Burden on Voters, 89 Wash. L. Rev. 175, 180 (2014)
(discussing the Anderson/Burdick framework).

    “Under this standard, the rigorousness of our inquiry into
the propriety of a state election law depends upon the extent
to which a challenged regulation burdens First and Fourteenth
Amendment rights.” Burdick, 504 U.S. at 434. Strict
scrutiny review is appropriate only if the burdens are severe;
otherwise, the state election law is constitutional so long as it
is justified by a state’s “important regulatory interests.” Id.

                               B

    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. See
Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665–70
(1966) (invalidating state poll 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
unconstitutional); Dunn v. Blumstein, 405 U.S. 330, 335
(1972) (states must show a “substantial and compelling
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON              17

reason” for imposing durational residency requirements).
But, the Supreme Court has applied a lesser burden when
evaluating the constitutionality of literacy tests, felon
disenfranchisement laws, and voter identification laws. See
Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45,
50 (1959) (upholding state statute that conditioned voting
eligibility on ability to read and write any section of the
Constitution); Richardson v. Ramirez, 418 U.S. 24, 56 (1974)
(upholding the ability of states to disenfranchise felons);
Crawford v. Marion Cty., 553 U.S. 181, 202 (2008)
(upholding constitutionality of state law requiring voter
identification). In other words, the Supreme Court counsels
us to approach the constitutionality of state election laws
through a deferential lens. See Burdick, 504 U.S. at 433
(“Common sense, as well as constitutional law, compels the
conclusion that government must play an active role in
structuring elections.”).

    Applying Burdick’s sliding scale of constitutional
scrutiny, we have “repeatedly upheld as ‘not severe’
restrictions that are generally applicable, even-handed,
politically neutral, and protect the reliability and integrity of
the election process.” Dudum, 640 F.3d at 1106 (citation
omitted). Indeed, we have said that “voting regulations are
rarely subjected to strict scrutiny,” and we are particularly
loathe to strike down as unconstitutional an entire election
system. Id. at 1106, 1114.

                               II

    The majority concludes that Tucson’s hybrid election
system for electing its city council violates the “one person,
one vote” principle announced in Gray v. Sanders, 372 U.S.
368, 380 (1963). According to the majority, Tucson’s system
18   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

violates equal protection principles by designating different
geographical units for its primary and general elections. The
practical effect of the majority’s decision today is the total
eradication of Tucson’s voting system, which has been in
place since 1930. Tucson is now forced to choose between an
entirely at-large method of election or a ward-only method of
election despite the fact that a majority of Tucson citizens
have twice before voted against adopting these election
systems. The Constitution does not require this sort of
judicial highjacking of state power. Accordingly, I conclude
that Tucson’s hybrid election system is constitutional.
Several principles inform this conclusion.

                              A

    Constitutional standards must be satisfied in primary as
well as in general elections. Smith v. Allwright, 321 U.S. 649,
661–62 (1944). However, individuals do not have an
absolute right to vote in a primary election. States may, for
example, host a “closed” or “semiclosed” primary, in which
only people who are registered members of a major political
party may vote. See Clingman, 544 U.S. at 584; Nader v.
Schaffer, 417 F. Supp. 837, 850 (D. Conn. 1976), aff’d mem.,
429 U.S. 989; see also Am. Party of Texas v. White, 415 U.S.
767, 786 (1974) (holding that states may establish waiting
periods before voters may be permitted to change their
registration and participate in another party’s primary). In
other words, the Constitution permits states to prohibit
qualified individuals who are registered Independents (or who
chose not to register as a party member) from voting in a
primary election.

    In fact, we have upheld Arizona’s “closed primary”
system in the face of a Fourteenth Amendment challenge
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON                19

similar to Plaintiffs’ challenge here. In Ziskis v. Symington,
an independent voter “could not vote in the Arizona state
primary election . . . because [Arizona law] denies any voter
not affiliated with a political party the opportunity to vote in
that party’s primary.” 47 F.3d 1004, 1004–05 (9th Cir.
1995). Ziskis sued the state in federal district court alleging
that the law violated his Fourteenth Amendment right to vote.
Id. at 1005. On appeal, we ruled in favor of the state. We
held that the law did not overly burden Ziskis’s right to vote
because Ziskis could access the ballot by associating with a
political party, and if Ziskis chose not to register, “his right to
vote in the general election is unaffected.” Id. at 1006. The
Third Circuit recently resolved a similar Fourteenth
Amendment challenge to New Jersey’s closed primary
system. See Balsam v. Sec’y of N.J., No. 14-3882, 2015 WL
1544483, at *3 (3d Cir. Apr. 8, 2015). The court reasoned
that voters do not “have a constitutional right to unqualified
participation in primary elections,” and the burden the closed
primary system placed on plaintiff’s rights was minor
compared to the state’s interests. Id. at *4–5.

    While Ziskis and Balsam do not resolve the exact
constitutional question presented here, they do counsel that
primary and general elections are not on the same
constitutional footing. See 26 Am. Jur. 2d Elections § 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 general election, in that it is a
competition for the party’s nomination, no more, no less, and
does not elect a person to office but merely determines the
candidate who will run for the office in the general
election.”). Primary elections in Tucson are, in short, nothing
more than the means political groups use to choose the
standard bearers who will face off in the general election.
20   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

                              B

    The majority finds it to be “perfectly clear” that Tucson’s
primary and general elections are not independent and “must
be considered in tandem when determining their
constitutionality.” Yet, the cases the majority cites do not
establish that primary and general elections must always be
considered together. For instance, United States v. Classic,
was an election fraud case where the federal government
prosecuted certain state election commissioners for allegedly
falsifying ballots in a Democratic primary. 313 U.S. 299,
307–08 (1941). Classic held that the Constitution secures the
right to have one’s “vote counted in both the general election
and in the primary election.” Id. at 322; see also Smith, 321
U.S. at 664–65 (holding that a political party may not create
a “whites only” primary). However, Classic explained that
the right it recognized only applied to voters who were
“qualified” to cast votes in the state’s Democratic primary.
313 U.S. at 315. Notably, Classic did not decide who was
“qualified” to vote in the Democratic primary and left that
distinction up to the state. See id. at 310–11.

    Classic teaches us that Tucson cannot 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. Thus, Classic does not preclude
Tucson from setting up ward-based primaries whose
“qualified” voters are limited to the residents of that
particular ward.

    The majority cautions that “if the city were permitted to
change the geographical unit between the primary and general
elections, it could decouple the representative to be elected
from his constituency.”        The majority creates two
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON              21

hypotheticals to illustrate its point: First, Tucson could decree
that only voters living on Main Street are eligible to vote in
primaries. Second, the State of New York could limit the
primary for its junior senator to Manhattanites and the
primary for its senior senator to the rest of the state.

     But, an application of Burdick’s sliding scale of
constitutional scrutiny reveals that neither of the majority’s
fictional state election systems would pass constitutional
muster. First, both of these hypotheticals eliminate large
swaths of city residents from voting in any primary, which
would likely be considered a “severe burden” on voting rights
and subject to strict scrutiny under Burdick. And second, the
states would have an extremely difficult time articulating any
sort of legitimate state interest in defense of these election
systems. Unlike the majority’s hypothetical state election
laws, Tucson’s hybrid system gives each citizen the right to
vote in her respective ward primary, and Tucson has
articulated an “important regulatory interest” to support its
hybrid system.

                               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 election schemes so that one person’s vote
is weighed more heavily than another person’s vote. Id. at
380–81. And, let there be no doubt about this—“[o]nce 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.” Id. at 379. However, the Supreme Court has
never before held that the same geographical unit must apply
to both the primary and general elections.
22   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

    In asserting the contrary, the majority misreads Gray and
views the case in a vacuum. Since Gray, the law on “one
person, one vote” has dealt almost exclusively with
congressional redistricting and malapportionment, see, e.g.,
Reynolds v. Sims, 377 U.S. 533, 557 (1964), principles that
are not at issue here. And, the Supreme Court has squarely
rejected the notion that an individual has a right to vote in any
election that might impact her life and livelihood. See Holt,
439 U.S. at 69 (“No decision of this Court has extended the
‘one man, one vote’ principle to individuals residing beyond
the geographic confines of the governmental entity
concerned, be it the State or its political subdivisions.”).

    Gray does not deprive states of their broad authority to set
the geographical unit from which a representative is to be
elected. See Holt, 439 U.S. at 68–69 (holding that city need
not extend the franchise to the citizens of bordering
municipalities, even though those citizens are subject to the
city’s criminal law jurisdiction); see also Green v. City of
Tucson, 340 F.3d 891, 893 (9th Cir. 2003) (upholding
Arizona’s annexation law that “draws geographical
distinctions” between voters living in unincorporated
communities); City of Herriman v. Bell, 590 F.3d 1176, 1185
(10th Cir. 2010) (“[T]he state has the right to draw different
boundaries for voting purposes—and we generally defer to
these delineations—as long as the separate units further
reasonable government objectives.”). Simply put, Gray does
not reach as far as the majority might wish.
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON               23

                               III

                               A

    From this it follows that Tucson’s hybrid primary system
does not “severely burden” the Plaintiffs’ right to vote.
During Tucson’s primary election, the law ensures that each
eligible voter within the relevant geographical unit—the
ward—has an equal right to vote. The same holds true for the
general election: Each eligible voter within the relevant
geographical unit—the city—has an equal right to vote.
Thus, the Plaintiffs are only entitled to vote in the primary
election of the ward in which they reside. But, their right to
vote in their ward primary is not burdened in any way. See
Holt, 439 U.S. at 68–69.

    The majority finds that “the practical effect of the Tucson
system is to give some of a representative’s constituents—
those in his home ward—a vote of disproportionate weight.”
Not so. While a City Council member, once elected, is likely
to be alert to the particular needs of his home ward, every
single vote in Tucson’s elections are weighted the same. In
fact, the hybrid system’s ability to foster attentiveness 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 aware of that ward’s
particular needs.

                                B

    When a state election law places no severe burden on
voters’ rights, “a [s]tate’s important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory
restrictions.” Clingman, 544 U.S. at 593. Tucson has a
24   PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON

legitimate interest in ensuring geographic diversity on the
City Council, and the hybrid system fairly advances this
legitimate interest. Specifically, Defendants persuasively
assert:

       Having nominations through primary
       elections in each ward, using separate ballots
       for each party, allows the party electorates in
       each of those wards to make their own choice
       of a nominee, and simultaneously acts as a
       guarantee for the City electorate as a whole
       that each ward’s nominee actually has support
       among the party members within that ward.
       Moreover, since nominees compete in the
       general election only against other candidates
       nominated in the same ward, see Compl. ¶ 24,
       ward nominations also help assure that each
       ward has a local representative on the council,
       and conversely, that the full Mayor and
       Council has members who are aware of each
       ward’s issues, problems, and views . . . . The
       principal and adequate reason for providing
       for the election of one councilman from each
       borough is to assure that there will be
       members of the City Council with some
       general knowledge of rural problems to the
       end that this heterogeneous city will be able to
       give some due consideration to questions
       presented throughout the entire area.

This important regulatory interest is sufficient to justify any
burden the hybrid system places on Plaintiffs’ right to vote.
     PUBLIC INTEGRITY ALLIANCE V. CITY OF TUCSON             25

                              IV

    Tucson’s hybrid system is constitutional, and the majority
errs in holding otherwise. Supreme Court precedent teaches
us that a municipality has broad authority to establish the
relevant geographical units for its elections. See Holt, 439
U.S. at 68–69. Furthermore, the majority points to no case
that requires a municipality to use the same geographical unit
for both its primary and general elections, cf. Gray, 372 U.S.
at 381, and the majority’s holding to the contrary stretches the
“one person, one vote” principle beyond its traditional
application. Finally, because primary and general elections
are not constitutionally equal, see Balsam, 2015 WL
1544483, at *3, state laws may narrow the franchise in a
primary election without running afoul of the Fourteenth
Amendment, see Ziskis, 47 F.3d at 1005–06. See also N.Y.
State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 206
(2008) (permitting nomination by party convention). In short,
the Constitution permits Tucson to set different geographical
units for its primary and general elections.

   I respectfully dissent.
