Redistricting -- Litigation Update; Recent Mtg; Rules of Decorum

Late last week, the Arizona Independent Redistricting Commission filed a new motion to dismiss the amended complaint filed in federal court in the case claiming the voting rights of Republicans is wrongfully diluted in the new legislative district map.

The 18-page motion starts by noting

Consistent with the deference routinely and properly accorded by courts, where the maximum population deviation between state legislative districts is less than 10%, the deviation is considered “minor,” and the Court presumes that the legislative map satisfies the one-person, one-vote principle. E.g., Brown v. Thomson, 462 U.S. 835, 842-43 Case 2:12-cv-00894-ROS-NVW-RRC (1983). This presumption can be rebutted only if Plaintiffs show that the population deviations at issue result solely from an unconstitutional or irrational state policy.

This reiterates what's been said before on this issue. However, additional insight may be found in this quote from the motion:

It is fundamental that Plaintiffs are required to plead “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory allegations are insufficient to state a claim.

And concludes with:

As Justice Scalia aptly observed, challenges to legislative maps with deviations under 10% based on “impermissible political bias” are “more likely to encourage politically motivated litigation than to vindicate political rights.” Cox, 542 U.S. at 951-52 (Scalia, J., dissenting) (emphasis in original). The Complaint alleges nothing more than political bias based on speculation and alleged conspiracies. For the foregoing reasons, the Commission respectfully requests that this Court dismiss Plaintiffs’ First Amended Complaint with prejudice.

And the Associated Press reported yesterday that the three judge panel had set the matter for hearing on October 31. Though nearly three months from now, holding the hearing just days before the general election could raise interest in the hearing or in the election or both.

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Last Friday, the AIRC met for three hours to discuss (bicker) about the terms of contract extensions for legal services (for Ballard Spahr as well as Osborne Maladon) and for the mapping consultant, Strategic Telemetry. Since I was otherwise occupied that afternoon (grandchildren and their birthdays take precedence, in my book), I was not able to catch more than a few minutes of the meeting when it was streamed online that day.

Even now, I've not listened to the entire recording, so I cannot report all of the details. My understanding, however, is that rates for the two law firms were "harmonized" (made equal). Though attorney fees were harmonized, relations between the opposing partisans among the commissioners were not.

The bickering we saw then as an expression of the frustration of coming to mapping decisions on which not every commissioner agreed this time seemed less restrained than it had been before.

In a moment when the proverbial light bulb lit up in my mind, it occurred to me that legislatures throughout the country provide for that kind of dynamic. After all, there has never been a time when politics has seen the absence of conflict. In more than 200 years of history and now 50 state legislatures (most of which have two chambers, an Assembly or House of Representatives and a Senate), it only now, nearly a year and a half after this body of five commissioners began its deliberations, occurred to me to look at legislative rules of decorum. The Congressional Republican Caucus states it thus:

Categories of Unparliamentary Speech

• Defaming or degrading the House

• Criticism of the Speaker’s personal conduct

• Impugning the motives of another Member 

• Charging falsehood or deception 

• Claiming lack of intelligence or knowledge 

• References to race, creed, or prejudice 

• Charges related to loyalty or patriotism

Rules of Decorum in the Arizona House of Representatives include this language:

When a member desires to speak in debate or deliver any matter to the House, or make a motion, he shall rise and address himself to the Chair, and on being recognized may address the House. He shall confine himself to the question and avoid personalities. No member shall impeach or impugn motives of any other member's argument or vote.

Rules of the United States Senate include this language:

No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator. 

Does any of that prevent criticism of ideas or disagreement on the substantive matters on which the AIRC must deliberate? I don't think so. But it DOES accomplish something very important, namely to establish boundaries within which the deliberation can be constructive and productive while accommodating, or in spite of, disagreement.

As a case in point, recently Sen. Bernie Sanders (I-Vermont), spoke for forty minutes on the floor of the US Senate -- in painstaking detail -- establishing that he personally had profound admiration and respect for his colleague, Sen. James Inhofe (R-Oklahoma). However, the point of that speech was to -- also in painstaking detail -- make the case that Inhofe's public stance on the issue of climate change is "dead wrong."


I include the clip of Sanders' speech as a case in point. You may or may not want to take the 40 minutes to listen to the entire speech. But even in the first few minutes you can get a very good feel for the boundaries within which Senator Sanders, I think, very persuasively argued his point -- without being ruled out of order even once.

So, ultimately my point is that the 2021 AIRC should be counseled by review of the record of the current redistricting cycle to adopt rules along these lines. It will perhaps require more diligent preparation and presentation by the commissioners, but I think it will make deliberations markedly more productive during meetings.