Sparks City Council Meeting 2/8/2016 2:00:00 PMMonday, February 8, 2016 2:00 PM
Council Chambers, Legislative Building, 745 Fourth Street, Sparks, NV
General Business: 9.2
A Business Impact Statement is not required because this is not a rule.
The Ninth Circuit Court of Appeals recently held that hybrid electoral systems that restrict primary election participation on the basis of geographic location violate the Equal Protection Clause of the Fourteenth Amendment. The City of Sparks utilizes such a system when electing City Council Members. The City Council must decide whether to employ the electoral system described in the City Charter or default to state law for the City's 2016 election.
On November 10, 2015, the United States Court of Appeals for the Ninth Circuit decided Public Integrity Alliance, Inc. v. City of Tucson, No. 15-16142, 2015 WL 6875310 (9th Cir. Nov. 10, 2015), a case involving a constitutional challenge to a local electoral scheme wherein participation in a primary election is limited on a ward-by-ward basis while participation in a general election is open to every resident of the city. The Court determined that this "hybrid" system is unconstitutional: "[e]xcluding 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." The matter is presently subject to en banc review by the Ninth Circuit, presumably before being appealed to the Supreme Court of the United States. As such, it remains the law in our location.
Because the City of Sparks uses a nearly identical process to elect its City Council, the ruling is of particular concern and urgency. See Sparks Charter § 5.020(1) (“Candidates to represent a ward as a member of the City Council must be voted upon by the registered voters of the ward to be represented...”) and § 5.010(8) (“All candidates at an election that is held pursuant to this section must be voted upon by the registered voters of the City at large.”). However, the City Charter contains a severability clause that automatically invalidates an unconstitutional or otherwise illegal provision. See Sparks Charter § 10.020. That said, when analyzing the City’s electoral scheme in light of the Public Integrity Alliance case, either of the provisions governing primary and general elections might be considered to be unconstitutional when applied in conjunction with the other. By striking only one part of the hybrid scheme and adopting uniform voter eligibility standards the constitutionality of Article 5 of the City Charter is saved, making the relevant question: Should the City use ward-only voting for both primary and general elections in contests for City Council positions, or should the five seats become “at-large”? Because the City Council lacks the authority to affirmatively amend the Charter, this question will ultimately need to be resolved by the Nevada Legislature in a formal amendment to the Charter. Due to the Legislature’s biennial schedule, the immediate issue confronted by the Council is the manner in which the City should conduct its upcoming elections which occur in advance of the next regular session of the Legislature.
Charter § 5.030(1) explains that elections in Sparks are governed by state law so long as the statutes are not inconsistent with the Charter. Nev.Rev.Stat. § 293C.175(3) requires that all candidates in a primary election be “voted upon by the electors of the city at large.” Where this statute previously conflicted with the City Charter, it may be fairly argued that it now controls the format of primary elections for Sparks City Council. By rendering Sparks’s electoral process procedurally uniform, the constitutional issue decided in Public Integrity Alliance is avoided and the City may lawfully elect and seat council members in 2016 without legislative change to the Charter.1 On the other hand, the Public Integrity Alliance decision could be overturned on further appeal. Primary elections are nearly always conducted with some restriction on voter participation (e.g. party affiliation) prior to a general election, and have occurred in this fashion for a long enough time that such restrictions are almost certainly constitutionally permissible. Whether the restriction can be based on geographic location or not is particularly interesting not because of the Equal Protection Clause – as posited by the Ninth Circuit – but because in certain specific circumstances, “at-large” electoral systems have been struck down as violative of the Voting Rights Act. See Rogers v. Lodge, 458 U.S. 613 (1982).
City Staff is seeking direction from the Council as to its preferred path forward for the City’s 2016 elections: continuing to utilize the Charter or defaulting to state law.
1 The City Council would be required to pass an ordinance detailing the process. See Sparks Charter § 5.030(2); Nev.Rev.Stat. § 293C.110(1); Nev.Rev.Stat. § 293C.175.