Arizona Eagletarian

Arizona Eagletarian

Wednesday, November 23, 2011

Redistricting -- Supreme clarification UPDATED 7pm MST

This afternoon, the Arizona Supreme Court issued an order in response to filings earlier this week from Gov. Brewer and House Speaker Andy Tobin. A brief summary follows.

The Court has received Respondents’ Joint Motion to Reconsider Order of November 17, 2011, Respondents’ Joint Motion for Expedited Consideration, Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending Reconsideration, and the Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. After consideration, the Court decides as follows: IT IS ORDERED granting Respondents’ Joint Motion for Expedited Consideration.
 IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending
Reconsideration. IT IS FURTHER ORDERED denying Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. The Court will treat the Motion as an amicus brief.
 IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Reconsider Order of November 17, 2011, except insofar as the motion seeks clarification of the Order. As the Order notes, the Court accepted jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution. The Court further concluded that the issues presented are not political questions committed by the Constitution to the unreviewable discretion of the other branches of government.
 IT IS FURTHER ORDERED clarifying the Court’s November 17, 2011 Order as it concerns the letter of November 1, 2011, from the Acting Governor to Colleen Mathis. The Order states that the November 1, 2011 letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution. Respondents seek clarification whether the Court’s conclusion was based on the format of the November 1, 2011 letter, which stated that the Governor had determined that Mathis had “failed to conduct the Arizona Independent Redistricting Commission’s business in meetings open to the public, and failed to adjust the grid map as necessary to accommodate all of the goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14).”
 The Governor’s November 1, 2011 letter constitutes her findings of grounds for the removal of Mathis. The Court’s conclusion that the letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” is based on the letter’s substance, not its format. The letter does not, as a matter of law, identify conduct that provides a constitutional basis for removal. One ground identified in the Governor’s letter is a failure to conduct the commission’s business in meetings open to the public. The Constitution directs that “[w]here a quorum is present, the independent redistricting commission shall conduct business in meetings open to the public, with 48 or more hours public notice provided.” Ariz. Const., Art. IV, Pt. 2, § 1(12). The statutory Open Meeting Law defines “meeting” in terms of a gathering of a quorum, A.R.S. § 38-431(4), and it directs that all meetings of public bodies shall be public meetings and that legal action of Supreme Court Case No. CV-11-0313-SA public bodies shall occur in public meetings. Id. § 38-431.01(A). A failure to conduct the business of the commission in meetings open to the public must at least involve violations of these laws for it to constitute “substantial neglect of duty” or “gross misconduct.” (We do not decide whether the constitutional provision preempts any statutory Open Meeting Law requirements, an issue that is being litigated in another forum.) There is, however, no allegation of any non-public meeting of a quorum of the commission in the Governor’s October 26, 2011 letter or in the responses thereto. Nor does the Governor’s November 1, 2011 letter find that a non-public meeting of a quorum of the commission occurred.
 With regard to preparing maps, the commissioners perform legislative tasks in which they must “balance competing concerns” and “exercise discretion in choosing among potential adjustments to the grid map,” Ariz. Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, 220 Ariz. 587, 597 ¶ 28, 208 P.3d 676, 686 (2009), and the commission’s adoption of final maps is subject to judicial review for compliance with the Constitution’s procedural and
substantive requirements. Id. at 596 ¶ 24, 208 P.3d at 685. The Governor’s disagreement with commissioners over whether they have properly considered constitutional criteria for adjusting the grid map before they have completed final maps is not, as a matter of law, a constitutional basis for removal.
 As noted in the Order, the Court in due course will issue an opinion more fully detailing its reasoning in this matter. 

The Arizona Supreme Court clarified that the issues are not exclusively political questions and therefore are subject to court review.

Further, the Court said there will be NO delay in reinstating Colleen Mathis to chair the AIRC; Andy Tobin will not be granted status as an intervenor; and there will be NO reconsideration of the overall decision to reinstate Mathis to the AIRC.

The Court DID, however, clarify last week's order. The problem with the October 26 AND November 1 letters is that NO finding of gross misconduct or substantial neglect of duty were cited. Citing problems with the draft maps as grounds for removal is just WRONG. And NO finding that IRC meetings had been conducted outside of the public or in violation of open meeting provisions of either the Arizona Constitution or Arizona Revised Statutes were cited.

What this ultimately means is that if Brewer and the senate again try to oust Mathis, it WILL be reviewable by the Supreme Court and that if they want the Court's blessing, they will have to demonstrate substantively MORE than simply what the governor or Sen. Biggshot decide constitutes gross misconduct.

It would still be incredibly naive for us to expect this to be the last we've heard of any attempts by Arizona GOP elected officials to interfere with independent redistricting.


The Arizona Independent Redistricting Commission has scheduled three meetings next week, all at the Fiesta Resort in Tempe.

Among the items for discussion, a presentation by county elections officials to put the time frames in perspective; presentation by Strategic Telemetry on the public input received during the course of the second round of hearings; presentation on racially polarized voting; adjustment of draft maps; calls to the public and more.


Arizona Capitol Times writer Jeremy Duda today reports that a top senate staffer and some GOP senators claim Brewer broke a promise to bring the legislature back into special session to put a repeal of Prop 106 on the ballot for the GOP Presidential Preference Primary in February.

There are still 18 votes in the Senate to set a special election on Prop. 106 for Feb. 28, the day of Arizona’s presidential preference election, Antenori said, and he believes there are at least 31 votes in the House. The measure would only need a simple majority. 
Antenori believes, according to the story, that Brewer is intentionally stalling so that the deadline for getting the measure on the February ballot (November 30) passes before anything can be accomplished. The ACT story, by the way, is not behind a pay wall at this time.

The story concludes by indicating the governor wants the guidance from the court before decided what to do. Now that Janice has her guidance, I wonder what she will do?


Happy Thanksgiving!

Are you thankful?  I am.


  1. Legal language can be rather dry, but in this case, the language couldn't have been more emotive. IMHO, I read this as a heavy smack down of Governor Brewer and her fellow co-conspirators. Of course, I wouldn't be surprised if conspirators didn't attempt to impeach one of the justices to try and take the AZ Supreme Court out of the picture.

    Either way, I am thankful the AZ Supreme Court didn't just punt.

    Happy Thanksgiving!

  2. I'm sure Brewer and company will come up with something equally as objectionable as everything else they've done thus far.

    I'm thankful too. :)

  3. Call me naive, but I think this might be the end of the road for Brewer and GOP trying to tamper with the AIRC. The SC essentially has taken off the table both of Brewer's allegations possible reasons for removing Mathis again. There isn't anything else to use. If open meetings and "unconstitutional" maps are not a basis for removal as a matter of law, that's check and mate to any further attempts to remove Mathis.

    I suppose it is possible that Brewer and GOP will just engage in some good-old-fashioned character assassination and try to get the voters to eviscerate the AIRC with a Referendum measure, but I think that they've shot their wad and have nothing left for another round of rogering the AIRC.

  4. Maybe you're right, but I just don't see the GOP/TP giving up. There's already been several GOP state legislators practically demanding the governor call a special session so they can put a repeal of Prop 106 on the ballot for the February Presidential Preference Primary.

    However, Brewer -- in spite of claiming not to have given the possibility of a recall any thought -- has to know that calling a special session now might be THE straw that breaks the camel's back... or breaks Camelback, or something like that.

    At minimum, expect the vitriol to continue from the Right (which is REALLY wrong) and if not before the 2012 regular session begins, we will almost certainly see a matching HRC/SCR to eliminate the IRC.

  5. I think we can expect the Republicans to distort/misrepresent the AZ Supreme Court's ruling to argue that Prop 106 must be -- at a minimum -- amended to lower the standard by which a member may be removed.

    According to the Capital Times article you link above, even the GOP poll numbers indicate that only 36% of respondents would support overturning Prop 106. I agree with you Steve that Brewer appears (appropriately) concerned about the "backlash" -- and is moving at least a bit more cautiously.