Arizona Eagletarian

Arizona Eagletarian

Tuesday, December 27, 2011

Redistricting -- next meeting in the New Year

When the Arizona Independent Redistricting Commission last met (last week), members discussed the possibility they would meet this week. If they did, it would be Thursday (Dec 29). To do so, the AIRC needed to post notice today.

No notice was posted. The next time the commission actually needs to meet is when the Voting Rights Act analysis is complete. That will not be this week. At this time, likely dates for the next meeting include Tuesday (Jan 3, 2012) or Thursday (Jan 5). When they do reconvene, it will probably be at the Fiesta Resort in Tempe.

Besides the highly anticipated racial analysis, Ex. Dir. Bladine expects to have updated information on IRC expenditures to date, including a better idea on total legal fees incurred to defend against the last month's GOP power grab.

On November 22nd, state Rep. Daniel Patterson requested public records (from the governor) disclosing Brewer's expenditures on legal fees for court fights related to controversial public policies (i.e. SB1070 and the attempted decapitation of the AIRC and more). Thus far, Patterson says Brewer's office has only minimally complied with the request. When I get more information on the cost of Brewer's legal misadventures, I will let you know.

Monday, December 26, 2011

Redistricting -- Gerrymandering? Really? UPDATED 11:30pm MST, 12-26-11

It's fair to say that whenever the redistricting process becomes independent and public, like it has in Arizona, it will be controversial. Reflecting back to the hot summer of 2011, Arizona learned a new definition of controversial. We know this because hindsight is 20/20. To really grasp the intensity of the Arizona redistricting controversy, review this blog's posts over the last year. After all, politics is not for the faint of heart*. Courageous populist activists throughout the nation will learn from our experience.

A most obvious a source of contention, naysayers have -- on everything they do not like about any given map proposal -- cavalierly labeled the lines and the maps as "gerrymandering."
In the process of setting electoral districts, gerrymandering is a practice that attempts to establish a political advantage for a particular party or group by manipulating geographic boundaries to create partisan, incumbent-protected districts. The resulting district is known as a gerrymander; however, that word can also refer to the process.
In comments at the end of this recent Politico story on last week's wrap up, Goldwater Institute economist Byron Schlomach, pitifully attempted to rebut a comment I made, asserts just such a claim.
This is a stupid statement. What Muratore pointed out is CLASSIC district packing - i.e., gerrymandering for a particular party. Gerrymandering is most successful when one party is a huge majority in very few districts while the favored party is a small majority in many districts. What he did not state is that [sic] that Democrat registration is significantly lower than Republican, lying by omission. 
Now, the Old Testament (Ecclesiastes Chapter 1) says there is no new thing under the sun. I believe there are no new concepts "under the sun." Especially when it comes to politics.

But there ARE new houses, new roads, new electronic gadgets, exploration of new frontiers, etc. As Buzz Lightyear would say, "To infinity and beyond!" My point? Controversy over redistricting is certainly nothing new. However, this year the intensity of the conflict reached new levels. With the increased controversy has come hefty doses of propaganda. This is what Schlomach wants people to believe I was doing with the comment to which he replied.
First, Kirkpatrick is NOT a lock to win the Democratic primary. Indeed, Gosar will have an uphill battle either way. As for Quayle and Schweikert, it couldn't have happened to two nicer guys. But really, I think they'll find a way not to have to face each other anyway. The FACT is that Republicans have 4 strong majority districts. That's 44 percent of the 9 districts. Given that they only have 35 percent of the voter registration in the state, I'd say the map is overly generous to THEM. And Lauren Kuby is correct. The way you constructed this story, it IS slanted. Arizona citizens are poised to WIN in this one.
He claims I omitted something. But did I? Arizona's Republican Party has, according to the tentatively final Congressional map approved last week, four districts with strong registration advantage. Four out of nine is 44 percent. But the AZ GOP, according to the latest figures posted by Secretary of State Ken Bennett,  has 35.58 percent of the registered voters in the entire state. Please, tell me what I've left out. Perhaps that Democrats only have two Congressional districts with strong voter registration advantage? Two out of nine is 22 percent. But 30.7 percent of Arizona voters are registered Democrats. Tell me what I've left out. Please.

That leaves three Congressional districts that are arguably up for grabs. Fully one-third of Arizona's representatives in Congress next fall will have to win their seats based on the strength of their ideas. That is, IF you have more than strong candidates that effectively campaign on issues. Competitive districts alone do not guarantee a clean fight. Can we predict whether those campaigns will be clean and on issues?

Drawing district lines according to the mandate of Arizona voters in 2000 -- to establish fair and competitive districts -- does NOT give advantage of any political party. Except from a perverse perspective that argues Republicans are owed advantage in EVERY district except Voting Rights Act districts.

What does genuine gerrymandering look like? Here's something from Pennsylvania. Look at the orange and the deepest purple districts for the most extreme example. Each of those two districts are contiguous ONLY at ONE point. That means that there are separate sections of those districts that touch at ONLY ONE point.

To fully disclose, I'm not sure whether that is a final map, that has been or will be in use. However, this one is apparently the recently proposed final PA Congressional map. Districts 16 and 13 appear to be pretty extreme examples.

Arizonans may also be aware of Phoenix city council district 6. It contains a good bit of east Phoenix and Ahwatukee and looks like a barbell. Nothing in Arizona this cycle (2011) looks anything like those PA or Phoenix city council examples. For the last decade, Congressional District 2 was cited as a classic example of what a gerrymandered district can look like. That was instituted to resolve a dispute between Hopi and Navajo Native American Nations.

Now that a few days have elapsed since the Arizona Independent Redistricting Commission approved the tentative final maps for the next ten years, some of the ramifications may start to come into focus.

Blogger AZ Blue Meanie published an initial look at southern Arizona legislative district races today.

The Payson Roundup reported last week on state Sen. Sylvia Allen's (R- 6,000-year old Earth) pep rally with some Gila County Tea Partiers. The new LD6, which includes Allen's home in Snowflake, also includes Flagstaff. Adding Flagstaff's more Democratic voters may spell the beginning of the end of Ms. Allen's tenure as a lawmaker.

The Green Valley News reported that it expects new legislative representation after the next election,

Green Valley, Sahuarita and Nogales will likely have new state legislators next year because their current lawmakers — all Republicans — live outside the newly drawn district approved by the Independent Redistricting Commission last week. 
The next lawmakers are likely to be Democrats in the new Legislative District 2, which runs from 22nd Street in Tucson to the Mexico border in Nogales. The new LD 2 has an estimated Democratic party-registration edge of 42 percent to 25 percent for Republicans and 33 percent for others. 
The new map could go into effect for fall’s election unless it is drawn into a lengthy court battle. If that happens, the current districts would be used until 2014. Green Valley and Sahuarita are currently in LD 30.
The Arizona Republic did some initial analysis on the potential Congressional races, speculating on the options for Phoenix area Congressmen Ben Quayle and David Schweikert, Flagstaff Dentist turned Congressman Paul Gosar, the new Phoenix area competitive CD (which may feature a Democratic primary with two or more strong candidates).

TriValleyCentral.com described the geographic impact on Pinal County but did not speculate on the political implications.

YourWestValley.com (covering Glendale, Surprise and Sun City) let its readers know that Debbie Lesko (R-ALEC state chair) is sorely disappointed to have been cut out of the legislative district that includes Sun City.

“I’m bummed,” Lesko said. “Until this new map, I thought I was going to have Sun City.”
As Lesko sees it, she has three options: She can stay in her current district, which she said is “totally different;” move into an area included with the Sun City district; or possibly move into the Sun City West and Sun City Grand district, which includes some of her current constituents and would be familiar territory.
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In the upcoming spring session, the extent of "reforms" the Republican legislative supermajority dares to propose (for the AIRC) will be a point of contention. Right-wing bloggers in Arizona have already begun tilling the field for repeal of Prop 106. Several GOP motor mouths (including Frank Antenori and Proud Terri) have been highly critical of the AIRC and have not been shy about wanting to eliminate the independent process. Any change, however, would have to be approved by Arizona voters.

Right-wing blogger Shane Wikfors has already signaled that he will advocate for a Prop 106 repeal. Wikfors also posted the ProPublica story calling out California Democratic Congressional representatives. However, a California Democratic Party official called the article "complete bullshit." Wikfors coyly declines to report the Arizona parallel to the claims made by ProPublica. Fair Trust and GOP activists (though very likely not directed by the AZ GOP officially) put on a full court press to influence this year's AIRC. (Described in several previous Arizona Eagletarian posts)

Last evening, on the Huffington Post, bloggers Phil Rounstine and Jerry Roberts incisively dissected the ProPublica story. So, while there probably was behind the scenes jockeying on the part of some elected officials, the premise -- that Democratic members of California's Congressional delegation had exerted undue, unseen influence on the newly enacted California Citizens' Redistricting Commission -- is patently false.

Wikfors also tweets and promotes other articles he finds to try to convince people of the "evils" of independent redistricting.

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Expect much more speculation regarding potential Congressional and legislative races over the next couple of months. When the GOP dominated Arizona Legislature returns (January 9th, for its 2012 regular session), expect more grousing over the maps as well as about the independent process.

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*A couple of examples of efforts and adventures "not for the faint of heart" include:

Volcano boarding in Nicaragua

Not for the Faint of Heart: My Journey to Manhood in the Santa Clara Vanguard 

UPDATE

From Tony Sissons:


Just a clarification about Phoenix Council District 6: It was drawn that way 20 years ago by consultant National Demographics Corporation, and again that way by my company 10 years ago. Why? First, the area south of South Mountain is too small to be a separate council district (unless the City decides to go to 18 council districts!). So, the Ahwatukee-Foothills area has to be joined to some other part of Phoenix--but where? The two council districts adjoining the Ahwatukee area are both minority majority districts. Adding largely Anglo Ahwatukee to either district would probably dilute their minority proportions in violation of the Voting Rights Act. Nevertheless, we prepared, for public comment, an alternate plan that tied Ahwatukee to a portion of South Phoenix. Phoenix residents detested the plan.

We also proposed a plan that widened the connecting neck. The problem there is that the wider neck took many African-American residents out of the only district with a large African-American proportion--again, a movement that would not pass DOJ scrutiny. So, the barbell configuration has been unavoidable for two decades. Is it still? We are analyzing that right now. District 6 is not a gerrymander because it was not created for the purpose of giving advantage to any political party or candidate. Shape alone does not signal a gerrymander. It is possible to create a political advantage with a perfectly circular compact district. 

Not for the faint of heart: Volcano-boarding in Nicaragua

Read more here: http://www.mcclatchydc.com/2011/11/11/130088/not-for-the-faint-of-heart-volcano.html#storylink=cpy
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So, similarly to the 2001 Arizona Congressional Map which drew a bizarre district for the Hopi Nation in NE Arizona, there was justification for the Phoenix City Council District 6 barbell shape.

Not for the faint of heart: Volcano-boarding in Nicaragua

Read more here: http://www.mcclatchydc.com/2011/11/11/130088/not-for-the-faint-of-heart-volcano.html#storylink=cpy


Not for the faint of heart: Volcano-boarding in Nicaragua

Read more here: http://www.mcclatchydc.com/2011/11/11/130088/not-for-the-faint-of-heart-volcano.html#storylink=cpy

The latest on Daniel Patterson UPDATED 11:00pm MST 12-26-11

When news came to me last night that an arrest warrant for state Rep. Daniel Patterson had been issued by the Tucson Police Dept. -- for violation of court orders regarding child custody -- I knew there would be more to the story than I could find out at that time. So, I waited on it, hoping to get more information or a resolution before writing about it.

Before any resolution however, responding to a blog post by Three Sonorans which had reported the incident, Patterson tweeted:
Morales is wrong again. I'm enjoying a family vacation. Happy Holidays to all.
Neither Patterson nor Morales gave the whole story.

I replied to Patterson's tweet asking if he was certain there was no arrest warrant out on him. Thus far, I have received no response. He called me.

Here are the facts as I understand them at this time:

  • Schaffer called Tucson Police who came to her home, filed a report (TPD report number 1112250552) and (according to Schaffer) issued an arrest warrant for Patterson. Schaffer said she understood the charge would be domestic violence related. I did not see how it could have been a domestic violence charge.
  • Tucson blogger Three Sonorans reported the situation as he understood it, but it was still dramatically premature.
  • Three Sonorans told me he intended to get a copy of the police report, but because of budget cut related furloughs, TPDs records office was not open today. Patterson also tried to contact TPD and could find no one who knew anything about the situation. Which could have been a function of the furlough/holiday or that there was not any warrant to begin with.
  • Patterson tweeted (as cited above) that Three Sonorans was wrong, but instead of addressing the issues raised, indicated he was enjoying a family holiday.  There's not much more you can say in a tweet.
  • The family holiday -- a trip to California for several days -- was authorized and coordinated with Schaffer (she acknowledged this to me this morning). but he unilaterally decided -- contrary to court orders -- to skip the part where their daughter was to spend Christmas night with her mother.  

Based on conversations with other Tucsonans who know both Patterson and Schaffer, the general perception is that Patterson intends to portray the incident as an overreaction by Schaffer to a situation that should not have been any concern. Having endured an acrimonious divorce and several years of custody related drama myself, I can relate to what Schaffer experienced yesterday. I can also relate to the frustrations Patterson had to deal with. As was the case for me, I believe there are issues on both sides in yesterday's Patterson/Schaffer conflict. Nevertheless, that does would NOT excuse Patterson for violating court orders or interfering with the other parent's custodial arrangements. [Patterson says he has NOT violated ANY court order. It is up to the Family Court, not me or any blogger, to sort it out.]

One had to hope that after his divorce was final (last spring), the Democratic state lawmaker would settle down and conduct his affairs with a view toward his public responsibility to his constituents. He has a reputation as an avid environmental advocate in the Arizona House of Representatives. But he joins several members of the GOP majority in having plenty of public drama.

The bottom line is that there are questions [for] Daniel Patterson.  is hoping to deflect long enough so that he does not have to address them head on. I appreciate his environmental advocacy. Potentially, there are other Democratic politicians who can take his place and advocate effectively, if necessary. But other Tucson Democrats gave me similar insight on both Patterson and Schaffer. I hope recommend Mr. Patterson is able to keep his eye on the ball, rather than on the emotional drama he engages in by antagonizing with his ex-wife.

UPDATE

Daniel Patterson called me this evening to discuss this situation. He assured me that he is in full compliance with the court ordered custody plan. He also showed me that he IS willing to deal with things head on. As long as he is in full compliance with court orders, he has a right to not have to deal with the ongoing conflict in the media or on the internet.

He explained other details of the situation to me and asked that I respect his privacy.

In my childhood, my brother and I were separated in age by only 15 months. There was plenty of sibling rivalry. My parents often told me that it takes two to tangle. I believe that to also apply with Patterson and Schaffer.

My hope is that the two of them can successfully work out any additional necessary details of their co-parenting arrangements with either Pima County Conciliation Court or a private mediator. Patterson says he's willing. It also takes two to work out ongoing disagreements.

Saturday, December 24, 2011

Merry Christmas and don't miss out...

In case you missed it, Sen. Bernie Sanders (I-Vermont) is coming to Arizona in February.



The theme for the dinner is Reclaiming government for the People. The dinner will benefit the Arizona Advocacy Network and the Arizona C4 Coalition. 


Linda Brown and Sam Wercinski of AzAN are working to obtain underwriters for the dinner to reduce ticket prices. I hope to have additional information on that situation shortly after the New Year.

In the meantime, this is a DON'T MISS event.




Happy Holidays from the Arizona Eagletarian!

Wednesday, December 21, 2011

Redistricting -- how final is "tentatively final?"

After the final vote last night by the Arizona Independent Redistricting Commission, to approve the legislative map for the next step (Voting Rights analysis), an enormous sense of relief and finality swept over the members, staff and some of the diehard followers. While I share the relief and commend the Commission, perception of having reached the goal still eludes me.

Until "the 99 percent" have the ability to wrest control, for every state in the Union, of the redistricting process from the hands of parochial interests, I will not be satisfied. Today Arizona voters reached an important milestone. But we are still FAR from the goal.

Because of the significance of this moment, coverage by corporate media was more extensive. I intend not to duplicate their efforts. As far as they go, their coverage will help you get the picture on where we are now and what the next step may entail. But as you know, I am interested in uncovering what is beneath the surface. That is no less true today than it has been over the last year.

So, what can I tell you about the last couple of days at the AIRC?

Last Friday, during the cantankerous deliber-ations over the new CD 9, with Stertz calling in from Tucson, Freeman began getting serious about his complaints that this district split HIS community of interest. That evening, as Capitol Times reporter Jeremy Duda tweeted,
This sounds ominous: Stertz says "we will have a lively discussion" about Mathis' proposed CD combo map at Monday's #AIRCmeeting.
Well, the subject did not come up at all on Monday. Deliberations focused that day on the legislative map. It did come up yesterday.

Freeman's again cited two major concerns. He was clear and emphatic that he did not like HIS community of interest being split. And that is what he believes the new, competitive CD 9 does. His other concern is that the maps should have been developed solely on the basis of equal population, compactness and natural boundaries. That is, without any consideration at all for the political consequences of any of the lines or districts. More than once, he said he believes justification for districts was written after the lines were drawn.

Stertz' contributed to the lively discussion but also ended up helping bring it all to a vote.

Several times early in the meeting on Tuesday, Stertz tried to get someone (other commissioners) to go on record to state some (potentially illicit?) rationale for putting Marana, Oro Valley and Saddlebrook in the sprawling rural CD1. He said (several times) that he believed the people from those communities had been "pulled out of Tucson" even though they want to be in a Congressional district with urban Tucson. Today, Blog for Arizona's AZ Blue Meanie rebutted that claim.

Nevertheless, McNulty eventually responded saying that nobody was "pulled out" of anything and that all we are doing is establishing lines for balanced districts.

Stertz' final argument on that specific point came in pointing out that there are roughly 300K voters in the Marana, Oro Valley and Saddlebrook communities and that while Flagstaff has been the "hub" for CD1 over the last decade, that is likely to change with this map.

Nobody jumped on his bandwagon right away (or in public comments anytime yesterday). During breaks I asked a couple of people interested in the maps from a Flagstaff perspective what they thought about that particular point. Nobody seemed to think it was significant. But one person mentioned to me that Stertz' likely had an ulterior motive for his push to include those NW Tucson communities in CD2.

Supposedly, the idea was to facilitate former Republican Congressional candidate Jesse Kelly having a rematch with Gabby Giffords in 2012. Indeed, Kelly's address near Marana, as listed at Dexknows.com puts him in CD1. The change Stertz wanted would have shifted that address to CD2. That's as far as that notion goes.

When I mentioned the scenario to Stertz, he quickly shot it down by informing me that the 2010 tea party candidate had moved to Texas. A freelance reporter covering yesterday's meeting for southern Arizona newspapers told me he had heard (previously) that Kelly did move to Texas. Stertz said the reason for the move was that there had been threats on Kelly's life. Threats that, according to Stertz, the FBI considered credible.

This leads me to my next point, still about Stertz. Besides a comment or two that readers have either posted or emailed to me (and that I've quoted) about him, he had a significant and important role to play in the entire scheme of things this year. Clearly, his application (to become a redistricting commissioner) contained false statements. The Arizona Democratic Party, at one point filed a complaint with the Attorney General and two county attorneys over those misrepresentations. Nothing came of that complaint and ultimately, nothing but huge legal service bills came out of the tea party complaints over Colleen Mathis' application.

A discussion of Stertz' role is significant for a couple of reasons. First, the dynamics of the open deliberations are worthy of examination. Second, a look at the impact of the outside activity (i.e. disclosure to the Attorney General in response to the investigative demands) on the timeline, litigation and other interactions of the AIRC could be instructive.

From one angle, both Stertz and Mathis have been viewed as polarizing figures in this year long melodrama. But are either one of them really all that polarizing? I don't think so. Both brought their bottom-line genuine selves to the process. [note: I hope to more extensively interview and explore the roles of all five AIRC members in development of my book. I plan to write it about Arizona's experience with this year's independent redistricting.]

The most obvious comparison and contrast between the 2011 AIRC and that from ten years ago is in the openness with which this Commission conducted its business. The irony is incredibly thick, given all of the hubbub over allegations of violations of the Open Meeting Law.

But I digress.

Anyway, yesterday in a move consistent with a statement he made last week, Stertz said that out of respect for Commissioners McNulty and Herrera, he would not oppose the Maricopa County competitive CD9, though he did have changes he wanted otherwise. When he recognized and openly acknowledged he was not going to win any more concessions, he again suggested they not waste any more time and get the motion made and vote taken.

Howie Fischer, ever the one to stir things up, did his best to stoke controversy with his write up. Fischer wrote:

Stertz read a letter from the Oro Valley Town Council saying it feared the town's 41,000 residents would get little or no attention from a Congress member who also has to represent that vast rural district.
Not that Fischer's story is inaccurate, as Stertz did read said letter. BUT Fischer's drive-by reporting apparently missed the part where Stertz tried to scare northern Arizona citizens by saying the 300,000 people in the NW Tucson suburbs could possibly elect someone in that district. His story is blatantly misleading but I doubt it was intentionally so. 


Other stories on yesterday's meeting mentioned the 3-2 vote on both maps and that the three and the two were different on each vote. But WHY was the vote different?

Freeman voted no on both. Mathis and McNulty voted yes on both. Stertz voted no on the Congressional map but ended up being the tiebreaker in favor of advancing the legislative map. Herrera vote yes on the Congressional map but no on the legislative.  So, the Congressional map 3-2 vote was consistent with the voting pattern since last spring.

The legislative map, as approved yesterday, presents (arguably) 16 solid Republican districts, 10 solid Democratic districts and 4 competitive districts. However, I'm not ready to argue that one. Based solely on a comparison of the number of Democratic and Republican voters in each district, only two LDs give a solid appearance at being competitive. But that is a very limited measure that does not give a fair picture of the likely performance of a given district.

The potential hold up last night was that Herrera wanted one more competitive legislative district. Tons of drama, for not necessarily much substance. As much as Freeman wanted to play the victim, and Stertz just wanted to play (until it really was apparent that taking more time would not produce any different result), the two did a good job of making Herrera look like the bad guy. McNulty and Mathis did not help Herrera out in that regard, at all.

Herrera's biggest problem yesterday was that he was swimming upstream. Perhaps he can relate more now to Democratic 2001 AIRC member Andi Minkoff's testimony last June. She expressed her frustration from the previous decade's redistricting effort in trying to establish competitive districts.

As always, I have plenty more to write about this process and will do so in time. But we can reasonably expect to read about -- in the corporate media -- all the hypothetical match ups between Republicans and Democrats and which incumbents will be "blessed" to have to face each other in order to keep a seat. I'll keep my ear to the ground and let you know of significant developments as I learn of them.

Tuesday, December 20, 2011

Redistricting -- well, it's final... tentatively! UPDATED 11:45am 12-21-11

Meeting for nearly nine hours today, the Arizona Independent Redistricting Commission tentatively approved Congressional and legislative district maps -- subject to analyses for compliance with the Voting Rights Act. In a process that began when citizen volunteers submitted applications to become commission members, more than a year ago, a major milestone was reached today on a pair of 3-2 votes.

The first vote, on Congressional maps, had the expected nay votes from Freeman and Stertz. However, this evening, after deadlocking 2-2-1 (Mathis/McNulty - Y, Stertz/Freeman - N, Herrera abstained) on the first try at adopting the legislative map, Mathis, McNulty and Stertz voted Aye, Freeman and Herrera voted Nay and the deed was done.

The Arizona Republic's Mary Jo Pitzl and Capitol Media Services' Howie Fischer covered the meeting, so look for their write ups. In the meantime, I will write more tomorrow. The maps as adopted will also be posted and available for review by tomorrow afternoon along with demographic and voter registration data for each set (to calculate how competitive each map is).

UPDATE

The maps, entitled "Tentative Final Maps" can now be found on the Arizona Independent Redistricting Commission's website. The maps can be viewed in Google Earth (KMZ files) or on PDF or JPG files. Several related reports are also available in Excel spreadsheet or PDF format and several data files for use with Maptitude or other mapping/GIS tools.

Monday, December 19, 2011

Redistricting -- Groundhog's day?

Yes, the Arizona Independent Redistricting Commission has been aiming all month at the goal of having the final maps completed by Christmas. No, they are not going to get the job done. But how close will they get?

Well, if today's deliberations are any indication, not very.

One observer called it a "loop." Another mentioned Groundhog's Day.

Here's how it goes:

Democratic IRC Commissioner Jose Herrera mentions the word "competitiveness." As soon as he is finished making his point, Freeman turns his mic on and says, "Madam chair." Mathis says, "Mr. Freeman."

Freeman, like today, says something like that the (Arizona) Constitution does not tell us to make competitive districts... then cites the 2009 Arizona Supreme Court ruling and recites his point about competitiveness being the only one of the six criteria that is conditional.

As soon as Freeman is done, McNulty will say, "Madam chair." Mathis then says, "Ms. McNulty." McNulty then addresses the point Herrera had made and thoughtfully rebuts Freeman. Last Friday, it was in one of the iterations of this loop that McNulty put her thoughts about the proposed Phoenix area competitive Congressional district (CD9) on the record.

These deliberations, as I have mentioned before, can be like watching paint dry. But by golly, they are making progress... I think. The saddest part of this loop, in my view, is that Freeman has gotten into what could become (if it has not already) a habit of making his criticism of Herrera into something personal. Previously, I've mentioned that he and Stertz have baited Herrera. But really, it is clear that Herrera has gotten under Freeman's skin and his retorts really have gotten personal. And that's unfortunate.

Anyway, today the Commission met from 9:30am until after 6pm trudging along toward the goal. Even if they get all the deliberation done by the time they adjourn on Tuesday (the last day they will meet this week), the best they'll do is to have two tentative maps (one for Congressional districts, one for legislative) prepared for the analysis Harvard Professor Gary King will conduct on Voting Rights Act issues (racially polarized voting). No district lines have yet or will be finalized until after that analysis is complete.

Event then, Dr. King may be performing parallel track analysis on multiple options for certain parts of the state, like Guadalupe. You may recall that last week, a good bit of public testimony was given by residents of the largely Hispanic and Native American enclave that's nestled between South Phoenix and Tempe.

During a mid-afternoon public comment period, Gila County resident Shirley Dye took a few minutes to calmly describe her desire to be following along with the discussions. However, her recent experience is that it has been very difficult because they don't have the files posted timely so people can follow along. She really does have a point. It is one that I've made a time or two since the post-apocalyptic (after the Supreme Court reinstated the Chair) deliberations have resumed.

The AIRC reconvenes at 1pm on Tuesday, at the Fiesta Resort. Live streaming video will be available at azredistricting.org.

Andrew Thomas discipline case -- final arguments

Final arguments were filed today by the Independent Bar Counsel John Gleason as a result of the investigation and disciplinary hearings conducted regarding violations of Rules of Professional Conduct committed by former Maricopa County Attorney Andrew Thomas, and Assistant MCAs Lisa Aubuchon and Rachel Alexander.

Bar counsel said that Thomas and Aubuchon MUST be disbarred and that the Alexander's license to practice law should be suspended.

Read the 34-page final arguments and 156-page listing of proposed findings of fact and conclusions of law.

According to Jennifer Liewer, Chief Communications Officer for the Arizona Supreme Court,

These documents stand as Independent Bar Counsel’s Closing Arguments and Finding of Fact and Conclusions of Law. They will be officially filed with the Clerk of the Office of the Presiding Disciplinary Judge tomorrow when the court is in receipt of a paper copy of the documents, which I am told, IBC has FedExed from Colorado.
 Respondents Counsel has until Jan. 16, 2012 to provide their response.
 A reply to that response by IBC is then due no later than Jan. 31, 2012.
 The Disciplinary Hearing Panel then has 30 days to file their Order (decision) in the case.


Saturday, December 17, 2011

Redistricting -- Friday Night Lights

The Arizona Independent Redistricting Commission met on Friday evening in Tempe to resume deliberations on making adjustments to the Congressional and legislative draft maps. Four Commissioners attended in person. Stertz phoned in for part of the meeting. The audience, at its peak, had barely a dozen individuals present. By the time the meeting wound down -- after 9pm -- only three or four remained.

Freeman got the discussion started on proposed changes to the Congressional draft map. An AP report described the discussion:

The commissioners commented a day after Republican Rick Stertz offered a compromise. It includes a Democratic-backed new competitive district in the Phoenix area and a Republican proposal to have a Tucson-centered district extended into southern Pinal County.
Republican Scott Freeman criticized the idea of a compromise. He said the commission should just apply constitutional mapping criteria, and he called the Phoenix-area competitive district contrived.
Democrat Linda McNulty said having only one competitive district in the Phoenix area was a compromise. She also said Stertz's proposal fails to reduce the size of a predominantly rural district in northern and eastern Arizona.
While the AP report is accurate as far as it goes, Freeman set the tone for the evening by saying he was not there to defend Stertz' so-called compromise map and would have preferred having Stertz attend to do so himself. Freeman expounded on what he means by "just applying constitutional mapping criteria" and letting the chips fall where they may. He said that his view is to draw lines without regard for the political implications at all. He took a few swipes at competitiveness in the process, and CD9 in particular. CD9 is the competitive Congressional district in the Phoenix area on the draft and working maps.

Freeman claims CD9 is not compact and that the notion of a Community of Interest centered on the Light Rail line cannot be justified. Stertz offered -- in direct contrast to his comments on Thursday regarding the compromise plan he offered -- that he believes justification for such a Community of Interest is "thin." Freeman went so far as to claim that in order to benefit from the Light Rail, one must live within walking distance from a terminal. Neither of the two cited ANY data whatsoever to justify their claims.

McNulty responded to them by saying she had some things she needed to put on the record about CD9. She read from her notes on the subject for close to ten minutes.

During the Call to the Public at the end of the meeting, I took the opportunity to rebut the specious claims made about CD9 by Freeman and Stertz. The essence of my comments was to indicate that as someone who lives about three miles from the Light Rail, I can and do either "park and ride" or ride my bicycle to catch the train. I do so to participate in various cultural events/activities in Phoenix and to go to the VA Medical Center for appointments.

What I did not think to say then, but recall now, is that when there are major cultural and sporting events in downtown Phoenix, MANY people "park and ride" the Light Rail.

Further, I mentioned my surprise that Stertz would suggest the rationale for a Community of Interest along the Light Rail line is "thin," given his back ground in architecture and real estate development. ALL along the rail line, from Mesa to ChrisTown in Phoenix, economic development and redevelopment of real estate is taking place. To me, the failure to cite any data (and there is plenty of data available, but it does not necessarily support their claim) emphasizes the partisanship that underscores the comments by Freeman and Stertz.

The bottom line, as Arizona Capitol Times reporter Jeremy Duda tweeted,
This sounds ominous: Stertz says "we will have a lively discussion" about Mathis' proposed CD combo map at Monday's meeting.
I'm not sure I agree that Stertz' declaration sounded ominous. But it did seem like a veiled threat. To what degree there can be anything more than the bitchiness we observed last Monday, I don't know.

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With former DOJ attorney Bruce Adelson in attendance last night, the AIRC responded to the previous day's public testimony about which legislative district in which to put the heavily minority populated Guadalupe. Previously, the Commission had -- on Adelson's recommendation to improve the minority demographics in the East Valley districts -- drawn Guadalupe with LD26 (mostly Tempe).

However, on Thursday, several people (including lawmakers) attended and spoke to implore the AIRC to keep Guadalupe with South Phoenix. The two areas have been in the same district (LD16) for the last decade. On Thursday, someone even made specific threats to file a complaint with DOJ if the request to stay with South Phoenix was not honored.

Friday's discussion on the issue explored multiple ways to shore up the Voting Rights Act numbers for LD26 if Guadalupe is put back with South Phoenix (in the new LD27). No decision was made but mapping consultant Strategic Telemetry will work up change reports based on a couple of those options. When the Commission reconvenes on Monday morning (9:30am, Fiesta Resort in Tempe), this discussion will again be taken up.

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From the start of Friday's meeting, it was clear that Freeman was "cranky." He took a few cheap shots at Herrera. For his part, Herrera did a good job of just letting those shots slide. A friend last night posited that Freeman's mood could have to do with personal stresses. Obviously, we do not know, but I still wish him the best in managing his career and family (with a three week old baby and other preschool children) and hope he has a robust personal support system.

Also yesterday, a reader sent me some feedback (by email) to the previous day's post where I had given Stertz credit for approaching deliberations (specifically that day) in good faith. This reader, however, took issue (beginning with a quote from my post):

Another indication of Stertz' intent to legitimately negotiate is that he probed (openly) for which districts and changes to districts proposed by McNulty and Herrera that those two feel most strongly about.

You seem to be convinced of Stertz’ genuineness.  I can understand why someone accustomed to the weasly, guilty behavior of the Republican leadership would be captivated by someone like Stertz who presents as someone with nothing to hide, someone with a clear conscience.  But the man _has_ no conscience.  He perjured himself in an orchestrated attempt to bring down the Commission, and would do so again in a heartbeat, if there were any law enforcement personnel left that would take him seriously.   If he is copping an attitude of negotiation, it is only because he hasn’t any alternatives left.  
Well, more than being convinced, I was hopeful. I am aware of Stertz' role in the turmoil experienced from June through November of this year. That Stertz views this strategy as a last resort in having any additional influence on the final maps does seem apparent. 

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Exec. director Ray Bladine mentioned, on the record, last night that he is working on scheduling post-Christmas meetings and needs to get availability information from each of the commissioners for the week between Christmas and New Year. If the AIRC does not get final maps approved for Professor King to perform the racial analysis by the end of Tuesday's meeting, they will need to meet after Christmas and as long as it takes thereafter. 


Friday, December 16, 2011

Redistricting -- day to day change

On Thursday, the Arizona Independent Redistricting Commission met in Tempe to further discuss potential changes to the Congressional and legislative district maps.

In dramatic contrast to the tone (bickering and frustration) of the deliberation on Monday, discussion on maps, though limited, was constructive. Commissioner Rick Stertz went through his proposed changes to the Congressional draft map. This time, he had the change report and explained where he made changes and why. Still, no map changes were voted on at this meeting.

Notably significant in this day's discussion, beyond the tone of civility, was that Stertz offered several indications of good faith in his willingness to compromise. Before the meeting was even over with, AP reporter Paul Davenport had posted a story about it.

Another indication of Stertz' intent to legitimately negotiate is that he probed (openly) for which districts and changes to districts proposed by McNulty and Herrera that those two feel most strongly about. Time ran out before they could answer, but it is still a significant development.

The two Democratic IRC members will still feel a need to hold their ground and press for more competitiveness in the final maps. However, they also will have to recognize Stertz' contributions in good faith and respond likewise in good faith.

There still have not been significant proposed changes to the legislative draft map to provide relief from the GOP supermajority in the state legislature.

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Other developments in Thursday's meeting included a Stertz motion to disclose transcripts from executive sessions conducted by this 2011 AIRC. However, counsel advised to wait until after the case ruled on last week by Maricopa County Superior Court Judge Dean Fink is ultimately resolved. While Fink's ruling is pretty clear and very specific, it is still subject to appeal.

By the way, AIRC Republican counsel Joe Kanefield also announced that they had come to an agreement with the county attorney's office on the proposed form to submit to Judge Fink for him to sign as the official order based on the ruling issued last week. The stipulated order was submitted on Thursday and becomes official as soon as Fink signs it. I imagine Montgomery will file his appeal shortly thereafter.

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Public comment at Thursday's meeting was also significant. More than half a dozen people, including officials from the Town of Guadalupe and Tucson lawmaker Sally Ann Gonzales (D-LD27) called on the AIRC to keep Guadalupe with South Phoenix on the final legislative map. One of those speaking on the topic threatened to file a complaint with the DOJ claiming the current plan to put Guadalupe with Tempe is retrogressive.

AIRC consultant Bruce Adelson had recommended putting Guadalupe with Tempe to strengthen Voting Rights Act numbers for the East Valley legislative district. Adelson is expected to attend Friday's meeting (Fiesta Resort in Tempe, starting at 4pm). No doubt this situation will come up for discussion at that time.

Additionally, our dear friends Lyn Breyer and Ann Heins, tea partiers and semi-official AIRC harassers, took their two minutes plus each to again harangue the commissioners. Breyer said that one of her friends was afraid to come and speak at AIRC meetings anymore because Herrera "intimidated" her. And Heins (who apparently wants to run for a seat on the Tempe City Council) closed her time by insulting "Empress Mathis." Do those two even think anyone should take them seriously?

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The Commission has meetings posted for today (Friday) and Monday (9:30am, also at the Fiesta Resort in Tempe). There are also plans to meet on Tuesday, though time and location have not been pinned down yet. If they expect to get the maps at least tentatively set before Christmas, they may push to have everything approved for submitting to the consultant (for final racially polarized voting analysis) by the time they adjourn on Tuesday. However, as slowly as deliberations go, that may still be more optimistic than realistic of a goal.

Wednesday, December 14, 2011

Redistricting -- Arizona's right wing propagandists speak

Well, they write anyway, and unconvincingly at that.

Since Maricopa County Superior Court Judge Dean Fink issued his six-page ruling slapping down Tom Horne's witch hunt against the Arizona Independent Redistricting Commission, the peanut gallery of voices claiming the mapping panel is now allowed to operate in secret has grown dramatically. Sadly.

Given the consistency with which Arizona Capitol Times axe grinder Christian Palmer has attacked the AIRC throughout 2011, his deceptive screed came as no surprise.

Maricopa County Superior Court Judge Dean’s Fink’s Dec. 9 ruling is being described as a victory for the Arizona Independent Redistricting Commission. Still, it’s not clear what Arizona residents, whom the commission is supposed to represent, have won.

Fink also ruled that the commission can go into closed-door executive sessions, even though such sessions are not addressed in the Constitution. Without being bound by open meeting laws, commission members are now free to deliberate their tasks in private, free to meet privately with each other to discuss commission business and free to corral votes outside the view of the public. All that is needed for the commission is to hold actual votes in public, and its members aren’t under any obligation to explain themselves.
I am not sure that this is a good thing, although arguably the ruling can be said to have the effect of leaving the commission truly independent from the Legislature (which Fink said could “harass and hamstring” the IRC with open meeting law legislation) and state and county prosecutors who could “intimidate” the IRC with investigations into potential violations of state open meeting laws. It is not clear to me how the Legislature would “harass” the IRC with open meeting laws, which, until July, when Attorney General Tom Horne began investigating the panel, IRC attorneys believed applied to the commission just like they apply to any other agency.
Any other agency except the Arizona Legislature, that is. That is, of course, to what "legislative privilege" refers.  

Mr. Palmer (isn't there a character on NCIS by that name?) is the one who is arguing here. Fink actually did specifically RULE that the intent of the Prop 106 language in the Arizona Constitution DOES make the AIRC independent from the legislature. Perhaps the reason he cannot see how the legislature would harass the IRC with open meeting laws is because he has scales on his eyes

It's not surprising he cannot recognize how Horne and Brewer, the state senate and various specific state lawmakers (remember Biggs(hot)'s drown them in paper strategy?) have been harassing the IRC over the last six months or so. After all, Mr. Palmer has been trying to gin this situation up as nefarious dealings, especially by Mathis, for quite some time.


One of Arizona's other wingnut pundits, Greg Patterson, gave Mr. Palmer credit for breaking the story of the alleged dirty dealings by the AIRC.
It was Capitol Times Christian Palmer who first broke the open meeting law story.  Mathis for her part came up with this "defense".However, in a somewhat contradictory rebuttal, Mathis said she spoke with Freeman and Stertz in an attempt to “pursue consensus among the commissioners” in her dual role as both chairwoman and the IRC’s chief procurement officer.Why did the reporter characterize the rebuttal as "somewhat contradictory"?  Because it's an admission!  She doesn't claim that she called the commissioners to inform them, or get their opinions.  She admits that she called them to "pursue consensus."  That's exactly what the open meeting law prohibits. 
An alternate reading of "why did the "reporter" characterize the rebuttal as 'somewhat contradictory'..."  is that said axe grinder was trying to stir up the controversy. Besides market development for his employer, perhaps Palmer's trying to make a name for himself as an investigative reporter. Maybe he wants to be the Arizona version of John Stossel.

The bottom line is that we DO or at least CAN know what Fink's ruling means for Arizona's voters.

It means that Colleen Mathis was NOT lying to anyone about her intent and did not believe she needed to deceive anyone. It means that, pursuant to the legislative privilege under which the AIRC operates, the members can conduct their business much the same way the state legislature does. OOPS!? But wait, don't state lawmakers (Frank Antenori) trade their votes among themselves and with Gov. Brewer? Well, yes they do. I've previously written about the practice of logrolling.

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Then there was the Arizona Republic. You might recall that its editorial board previously invoked a false equivalency argument, equating legitimate (but what they viewed as puzzling) decisions Colleen Mathis made as IRC chair with the brazenly self-serving actions taken by elected Republicans (i.e. Tom Horne's witch hunt and Jan Brewer's attempted decapitation of the AIRC) to subvert the intent of voters who passed Prop 106.


Mathis emphatically demonstrated her independence with votes for hiring Joe Kanefield instead of Lisa Hauser for legal counsel and the even more controversial hiring of Strategic Telemetry. The partisan pressure seeking to compromise Mathis' independence has come exclusively from Republicans.

On the other hand, pandering by the Arizona Republic to tea partiers and GOP activists has been incredibly blatant.

This week, the Republic's editorial board doubled down on it's willfully wrong claims (innuendo?) about the IRC.

But was it really the intent of voters to sever the public from oversight of the commission? Could it be that voters wanted a commission that could make crucial decisions on the alignment of legislative and congressional districts behind closed doors? (emphasis in the original)
Neither the voters, nor Judge Fink, either intended or claimed that the public was or would be precluded from oversight of the AIRC. IF the writer of that editorial had read the ruling instead of Mr. Palmer's deceptive screed, he would know that any and all citizens of Arizona have standing to bring a Special Action to compel compliance with the Open Meeting Clause. If that seems difficult, I would offer that only under very serious circumstances should such a course of action be undertaken.

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Could Mr. Palmer or the Arizona Republic's editorial board have inferred -- in claiming Fink's ruling circumvents public accountability for the Commission -- that the state legislature is not subject to enough public scrutiny?



Besides logrolling, state and Congressional lawmakers also engage in the the fine art of lobbyists buying favor. Excuse me, they buy ACCESS to lawmakers.  Be it the Fiesta Bowl or the 1990s AZSCAM* scandal, to lawmakers, campaign finance and gifts from lobbyists, are thought to be (sometimes but not always subtle) forms of bribery. Since AIRC commissioners are precluded from running for office for a LONG time, their own self-interest in drawing lines is in large part preempted.

Judge Fink made it clear that ANY Arizona citizen has standing to compel compliance with the Open Meeting Clause of the Arizona Constitution. So, claims made by Mr. Palmer, Greg Patterson, and others who have been following this year's redistricting are simply disingenuous.

Another irony with the opponents of this year's independent redistricting crying foul is in that the 2001 AIRC actually (reportedly) DID deliberate on district lines in executive session. Because the subject of executive session disclosure came up on Monday, discussion and a possible vote has been placed on the agenda for tomorrow's meeting (which starts at 1pm at the Fiesta Resort in Tempe). While Mr. Palmer is probably salivating at the idea of getting access to this year's executive session transcripts, I'm figuring that those from the 2001 AIRC will be more instructive, and other than that they are now a decade old, also more intriguing.

I suppose that, in concept, if you have commissioners who all conspire together to draw maps in secret, something unseemly could happen in the future. Maybe. But even in such a case, if there are people watching closely enough to understand the dynamics of the interactions as well as the demographic data being used -- and figure that technological advances in the next ten years will likely make it even easier to communication quickly and widely -- I still think it's a long shot.

Apparently today Maricopa County Attorney Bill Montgomery, during his weekly press briefing, reiterated his intent to appeal Fink's ruling, now specifically saying he intended to take it to the Arizona Supreme Court.

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* This online reference to AZSCAM is a sociology case study in the role of mass communications in "social control" (aka public accountability). This captured my attention because of something state Rep. John Kavanagh said to me a couple of months ago. Of course, he went around for some time trying to stir up the controversy against independent redistricting, speaking publicly and playing up the alleged violations of public trust by the members of the AIRC. He was among those who claimed, in an argument for repealing Prop 106, that there was no mechanism for holding the commissioners accountable to the voters of Arizona. He said to me, "what are you going to do, write something to embarrass them?" Or some very close expression to that effect.

Well, as the cited article on the AZSCAM case study suggests, mass communications (newspapers and broadcast media, the study was published in 1993, well before the proliferation of citizen journalists, bloggers and easy access to online news) -- can and do influence public behavior (just ask Frank Luntz). By the way, Kavanagh has been conspicuously silent lately. The last time I recall hearing anything from or about him was when Sen. David Schapira faced-off with him on Channel 12's Sunday Square Off sometime in November.

The Occupy Wall Street movement has spread throughout the US (and other countries). Together with the Arab Spring, citizen journalists, by way of social media, blogs and independent online news sites, have changed what people talk about and are -- perhaps slowly at first -- influencing what lawmakers and office seekers say and do.


Tuesday, December 13, 2011

Redistricting -- fireworks or just sparks?

Well, today was not the first time friction generated heat in deliberations over Arizona's redistricting process and potential new maps. But testiness seemed to reach new levels today when Redistricting Commissioners Scott Freeman and Rick Stertz engaged in some baiting to get Commissioner Herrera's goat.

The bickering today appeared at the time to be frustration on the part of the Republican commissioners. Of course they all have personal lives and personal stresses, what with new babies and other young children, possibly lowered earnings at regular jobs because of the time they've had to sacrifice in order to participate as citizen volunteers, and extended families that may provide any number of difficult situations. These commissioners do not conduct the redistricting process or the deliberations in a vacuum.

Throw in the partisan pressures coming from all angles, and the recent court rulings -- both in Maricopa County Superior Court and in the Arizona Supreme Court -- and it is really no wonder tensions run high in AIRC meetings and discussions. Look at it this way, Arizona Republicans have approached the process, as far back as fall of 2010, as if they are behind the 8-ball. And court rulings as far back as they go for this redistricting cycle, have frustrated all (or at least MOST) of what they've hoped to do or even try.

What happens when someone is frustrated and feels powerless to control a situation? The first thing that comes to mind is the emotional "lashing out." There's all sorts of ways that can be expanded upon and scenarios drawn out. But that's not what I want to do with this space. But frankly, I think that the bickering today can fairly be characterized as verbal "lashing out."

When it was going on, it was sometimes jaw dropping and sometimes almost amusing. But the entire time it was riveting as I wanted to follow the verbal volleys, mainly to understand the interpersonal dynamics. As I described yesterday in putting Stertz' whistle-blowing to Atty Gen Horne in perspective, I see genuine positive aspects to the potentially indiscreet disclosures he made when he gave his deposition. So too in Monday's deliberation, I see genuine positives that can come from the seemingly childish verbal barbs exchanged between Stertz/Freeman and Herrera.

The blog cited above Deliberative IDEAS, in the post entitled Powerless and Frustrated says, in pertinent part,
An email exchange today focused my attention on some statements that have become too familiar: “It’s already been decided.” I’ve been moderating a series of community conversations on California water priorities across the five Delta counties. Several people have voiced the same opinion…“It’s already been decided.” And the email writer today…she seemed at first to be totally beside herself as an angry and frustrated and powerless citizen. When important civic issues are technically still open for public conversation and input…but it’s obvious to the participants that the decisions have already been made, no one can plan well, nor can they respond well. All they can do is watch in horror as decisions that totally change their lives move closer and closer.
Today, Rick Stertz lashed out -- and offered a motion to just adopt the working maps as of December 8 (which motion Freeman seconded, but the motion failed 1-3 as Freeman voted with Mathis and Herrera) because (he told me) he did not want to waste his time if it was all a done deal anyway. As the AP recounted, Stertz was comforted that the motion failed. Regardless, the situation still sounded most of the day like frustrated people trying to figure out ways to effectively deliberate.

Now, ONE source of frustration Stertz spelled out is that he believes Herrera has shot down or dismissed every idea he (Stertz) has presented for making adjustments to the draft maps. I'm not sure that's a fair assessment for Stertz to have made. I do know that a motion he made to have his proposed changes to the Congressional draft map was defeated 2-3, with both Herrera and McNulty (who attended part of the meeting by phone) emphatically opposing.

Mathis, however, was clear in saying that she wanted to see the data/change reports or some other kind of backup documentation showing how his proposed changes would impact the rest of the Congressional districts. At NO time today did Stertz give any indication that he had any of that data available or even prepared for anyone to review. But Mathis said she was willing to revisit that motion when the data was available. And she listed a few aspects of Stertz' proposed changes that she likes already, notably the way he addressed the concept of having three border Congressional districts.

I don't know how much more independent the INDEPENDENT chair can reasonably be expected to be in that kind of situation. Really!

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Apart from my assessment of the overall dynamics of Monday's meeting, I wanted to note one specific observation about Stertz' comments. First, some perspective.

Since the day Andy Biggs(hot) had me thrown out of the hearing of the Joint Legislative Committee on Interfering with Independent Redistricting, he and I have been in the same room a handful of times. At not ONE of those events/meetings/hearings has Biggs(hot) demonstrated the capacity to look me in the eye.

Stertz, on the other hand, doesn't present himself as a bigshot and has shown, MANY times, intellectual consistency and honesty in advocating for the perspective he represents. And he has no problem, even though he knows I criticize him on this blog, shaking hands, making eye contact or engaging in discussions, asking me questions or assertively telling me what he thinks. And while I disagree with him on many things, I heartily respect him.

On Monday, while making one of his points and expressing his frustration, he consciously decided to invoke the expression "hyper-packing of Republicans." You know, for the purpose of establishing competitive districts. When he did so, he looked me straight in the eye. We exchanged raised eyebrows and smirks. He clearly is not intimidated by being criticized. And I think that's a very good thing. It makes him, among other things, capable of successfully deliberating. He's capable of give and take, even if he has not yet indicated anything on which he's been willing to give ground.

By the way, another point of contention today was when my good friend Mr. Stertz defined gerrymandering as drawing lines to achieve any given outcome. On that, I believe he is dead wrong.

Look long and hard enough and one can find a very broad range of definitions for the word. However, the most common aspects of the differing definitions are: unfairness or manipulating for one's own advantage. Now, I'm quite confident that Stertz can argue forcefully that drawing lines to increase the number of competitive districts, or to increase the competitiveness of one or more given districts is for "one's own advantage." But really, the key aspect of competitiveness is that it REDUCES any one person or group's advantage.

I know, there have been people citing, in public testimony before the IRC, that competitiveness is "code" for advantage to the Democratic Party. But really, is that a legitimate argument?

Realistically, only in the mind of frustrated partisans who feel powerless to persuade the voting public of the merits of their positions.

Sunday, December 11, 2011

Redistricting -- more on the Open Meeting ruling

On Friday, Maricopa County Superior Court Judge Dean Fink issued a six-page ruling that spelled out, in exquisite detail, that the Arizona Independent Redistricting Commission is subject to the Open Meeting Clause in the Arizona Constitution, rather than the statutory Open Meeting Law (A.R.S.§ 38-431 et seq).

The ramifications of the ruling are dramatic and far reaching. Opponents of Independent Redistricting, at least from the peanut galleries* of the online comment forums of newspaper websites, have already taken to complaining this ruling means the AIRC can conduct its business in secret. That is specifically precluded by any and every legitimate interpretation of this court order.

The substantive and salient points of law made in Fink's ruling go well beyond beating back a partisan attack on Democratic (and INDEPENDENT) commissioners. Parallel to the way the Supreme Court cited the intent of the Prop 106 drafters in its interpretation of terms such as "gross misconduct" and "neglect of duty," Fink cites:
The rule relevant here, which governs the conduct of its business, is set forth at § 1(12): “Three commissioners, including the chair or vice-chair, constitute a quorum. Three or more affirmative votes are required for any official action. Where 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.” (To distinguish this from the Open Meeting Law, the Court will refer to it herein as the “Open Meetings Clause,” or simply the “Clause.”) There is no dispute that the Clause is binding on the IRC. The question is whether the legislature may bind the IRC to rules more stringent than those in the Clause.
Fink goes on to answer that question:
The Court can only conclude that, while openness was important as reflected by the inclusion of the Open Meetings Clause, more important was insulating the IRC from interference by the political branches.
 Applying the Open Meeting Law to the IRC would subject it to political influence from two sources. The first source, obviously, is the legislature. If the legislature can, through its plenary legislative power, dictate how the IRC is to conduct its business and impose penalties for non-compliance, that power cannot be limited to open meetings; it can be used to harass and hamstring the IRC. The second source is the executive, specifically prosecutors such as the Attorney General and the various county attorneys, all of whom are empowered to investigate alleged Open Meeting Law violations. The threat of prosecution, even a baseless one, can be reasonably expected to intimidate its target. (emphasis mine)

But what about claims by foes of INDEPENDENT redistricting that this ruling means the AIRC can do whatever it wants, without public scrutiny? Well, one current member has openly indicated he believes sunlight is the best disinfectant. That Commissioner (Stertz) blew the whistle for Arizona Attorney General Tom Horne.

Now, if I were to view this situation entirely along partisan lines, I would use different expressions to characterize Stertz. And maybe I have done so already. However, at this moment, I do believe that a lot of the partisan rancor we've seen in the last six months would not have been as intense if Stertz had exercised more discretion in his disclosures. I have (and still do) criticize him for doing so. After all, don't "they" say that discretion is the better part of valor?

Nevertheless, if we had not had the litigation and subsequent rulings this year, the threat of litigation would have been hanging around the necks of the commissioners indefinitely. So, ultimately, rather than blame Stertz, I'll be thankful that we have a JUST system to clarify the issues. For redistricting this year and in the future. Stertz actually helped catalyze the situation, bringing it to a head, sooner perhaps than would have otherwise been the case.

Despite the partisan clamoring from Andy Biggs(hot), Frank Antenori, John Kavanagh, Proud Terri, "Captain Al" Melvin and others of their ilk, INDEPENDENT redistricting will not go away anytime soon. Not even in the next decade.

To the contrary, I believe what we are doing in Arizona will spread rapidly. California conducted a similar, voter mandated, redistricting this year, having taken the hint from Arizona's 2001 effort. In 2010, Director Jeff Reichert released Gerrymandering - The Movie. In 2011, perhaps nothing brought more national attention to the issue than Jan Brewer's failed attempt to decapitate the AIRC.  It can only grow from here and spread further throughout the United States.

But I digress.

While Fink's ruling precludes legislative inter-ference and executive branch prosecution, it set forth that any Arizona citizen has standing to bring a Special Action in court to compel compliance with the Open Meeting Clause.

The Court therefore concludes that the Open Meeting Law, A.R.S. § 38-431 et seq., cannot be applied to the Independent Redistricting Commission. This leads to a second question: does the prosecutorial authority of the State extend to enforcement of the Open Meetings Clause, beyond the authority possessed by any citizen of Arizona to compel compliance by filing a special action?


The other major point (and precedent) Fink makes is to clarify that "legislative privilege" extends to the official acts (and votes) of the members of the AIRC.


...the doctrine of legislative immunity protects the official acts of the IRC and individual commissioners.  The doctrine of immunity for the performance of legislative acts is one long predating statehood. See Gravel v. United States, 408 U.S. 606 (1972) (outlining its history in common law). It applies to “actions that are an integral part of the deliberative and communicative processes utilized in developing and finalizing a redistricting plan, and when necessary to prevent indirect impairment of such deliberations.” Arizona Independent Redistricting Comm. v. Fields, 206 Ariz. 130, 139 ¶ 24 (App. 2003) (internal quotation marks omitted). Contrary to the State’s argument, the choice of a consultant is a legislative, not an administrative act, even though some preliminary and follow-up work may be delegated; the allegation here is that three commissioners improperly agreed on the choice of consultant, not on the application process or the contractual compensation of their choice. See id. at 140 ¶ 29-30. The “deliberative and communicative processes” involved in choosing the consultant are therefore necessarily privileged.
On Friday, shortly after first reading Fink's ruling, I engaged in a brief online chat with a friend who also has been following the AIRC. When I attempted to explain parallels I see between this situation and what the Arizona Legislature has done recently regarding the Commission, he chided me on the "but they do it too" appearance of my argument. Of course, I understand that claiming something is acceptable just because "they do it too" (whoever "they" may be) is a logical fallacy. But that's not what is going on here.

When Frank Antenori grouses about Brewer failing to honor the deal he believed she had made with the senate, we (you, me and anyone else) has every right to call attention to the hypocrisy, the vote trading (which more than one senator acknowledged took place) and the political logrolling. But we do not have the right to prosecute them in court for it.


Likewise, nobody can prevent GOP activists or tea partiers from complaining about the AIRC decision to hire Strategic Telemetry as its 2011 mapping consultant. But that does NOT give them standing to legitimately claim "gross misconduct" or "substantial neglect of duty," occurred, even though they tried like the Dickens to get everyone to believe it did.

This ruling also puts in perspective what some who were close to the 2001 Arizona redistricting process say were mapping deliberations conducted in executive session. (I cited this sometime last summer, though I do not have the specific dates at this time).

The State’s argument that immunity would open the door to evils like bribery and embezzlement is not persuasive. [**]Legislative privilege does not shield those who misuse public office for personal gain. But no such accusation has been made against any of the IRC commissioners. The allegations against them are that they failed to perform their official legislative acts in the proper manner. This is fully within the scope of the privilege.
           
Therefore, the Court finds that the Open Meeting Law, A.R.S. § 38-431 et seq., does not apply to the IRC, which is governed instead by the open meetings language of Article IV Pt. 2 § 1(12) (the Open Meetings Clause). It further finds that neither the Attorney General nor the Maricopa County Attorney may proceed in their investigation, except as provided by the Rules of Procedure for Special Actions.
For the foregoing reasons, as well as others expressed by the IRC and the individual commissioners in their briefing and argument, the Motion for Summary Judgment filed by the IRC and joined by Commissioners Mathis, McNulty, and Herrera is granted. The State’s Cross-Motion for Summary Judgment is denied. 
So, ALL of the relief requested by the AIRC was granted. NONE of what Tom Horne requested -- which was to compel Mathis, McNulty and Herrera to respond to his subpoenas and for a ruling that they had violated the Open Meeting Law -- was granted.

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By the way, on the issue of Colleen Mathis' vote to hire Joe Kanefield and Ballard Spahr as opposed to Lisa Hauser to be Republican counsel for the IRC, Fink addresses what I believe to be the fulcrum in showing her independence:


When interpreting a constitutional provision, the Court’s “primary purpose is to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it.”  Heath v. Kiger, 217 Ariz. 492, 495 ¶ 9, 176 P.3d 690, 693 (2008) 
Remember that in EVERY high profile case, since that vote, on election related litigation (Pearce recall and AIRC matters), Hauser has advocated specifically and emphatically AGAINST the intent of the electorate and/or the drafters of the laws in question. Hauser tried to get the Pearce recall stopped on technicalities, will of the voters be damned. And Hauser (along with that other superb legal mind, Sen. Andy Biggs(hot)), of course, claimed that "gross misconduct" is whatever the governor and the state senate wants it to mean.

The Arizona Supreme Court, unequivocally, shot down Hauser's argument then, and Judge Fink shot down that same "logic" on Friday.

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* delluser says: So you think is a good thing that they can do whatever they want behind closed doors and not be held accountable. I can't believe how stupid you liberals are just because this is happening to the Republicans. You think everything is fair. Things like this set precedents, in the future this could happened to the Democratic Party; would you think it is fair then?
Delluser, this is NOT happening to Republicans. This is happening to Arizonans. Indeed, litigation like we've observed this year has set precedents. Important precedents that will govern how Independent Redistricting is carried out in Arizona and perhaps other states in the next cycle (2021). While it's a fair bet that the structure of the AIRC will be changed by then (more commissioners, with more Independents and perhaps specifying rural representation), whichever political party dominates Arizona in ten years (if any do) will seek to exploit any remaining vulnerabilities in the Commission.

While I am currently registered as a voter with the Democratic Party, I am not blind to the potential for (not so innocuous) hijinx from either party. Which is the very reason I applaud Judge Fink's ruling. Not because it is a victory for Democrats but because it is a victory for INDEPENDENT redistricting. I stand with the drafters of Prop 106 in that regard. When the tide turns (and it WILL turn), if it goes too far and presents Democratic office holders in Arizona with too much temptation to avoid, I will be in favor of openness and accountability for them too.

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** Remember AZSCAM.