Arizona Eagletarian

Arizona Eagletarian

Tuesday, September 11, 2012

Redistricting -- Litigation update

On Friday, September 7, the Arizona Independent Redistricting Commission filed a response in support of its Motion to Dismiss the lawsuit brought in federal court by the Legislature which seeks to get the entirety of Independent Redistricting in Arizona declared unconstitutional.

Previously the AIRC, in its Motion to Dismiss, cited case law showing that the Elections Clause in the US Constitution has been construed by federal courts to mean the legislative process including citizen initiative and referendum. This latest brief expands on that point.
...the Supreme Court long ago, however, established that the Elections Clause does not impose restrictions on a state’s lawmaking process. Smiley v. Holm, 285 U.S. 355, 367-68 (1932). Instead, the Elections Clause gives states broad authority to regulate federal elections, while also establishing Congressional authority to preempt state requirements. Gonzalez v. Arizona, 677 F.3d 383, 391 (9th Cir. 2012) (en banc) (citing Colegrove v. Green, 328 U.S. 549, 554 (1946)). Because the Elections Clause does not favor a state legislature over decisions of its citizens, or other lawmaking processes established in a state constitution, the Legislature’s claim should be dismissed.
-- snip --

Despite the Legislature’s argument to the contrary, the Supreme Court has never held that the Elections Clause’s use of the term “Legislature” grants exclusive authority to each state’s legislative body to draw congressional lines. Rather, the Court has held that this term refers to the state’s legislative process, as defined by its constitution, and that a state retains authority to define the lawmaking process it will use to regulate the times, places and manner of congressional elections in accordance with the Elections Clause. Smiley, 285 U.S. 355; Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). As the exclusive source of legislative power, the Arizona Constitution serves as a blueprint for the exercise of legislative authority.
In Arizona, the people vested legislative authority in the Legislature, but also reserved for themselves the power to enact laws and constitutional amendments independently of the Legislature. Ariz. Const. art. 4, pt. 1, § 1(1); see also id. art. 2, § 2 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”). The Legislature is but an instrumentality created by the Arizona Constitution to exercise a part of its sovereign prerogatives, namely, the lawmaking power. State ex rel. Jones v. Lockhart, 76 Ariz. 390, 395, 265 P. 2d 447, 452 (1953). By reserving the power to amend the Constitution themselves, the people retain the power to alter and reshape the legislative power of the state and the processes by which legislative enactments become law. The citizens exercised this authority in 2000 to create the Commission and did so in compliance with the Elections Clause. (emphasis mine)
The Commission exercises its legislative power pursuant to procedural and substantive requirements established by the voters. Ariz. Const. art. 4, pt. 2, § 1(14)-(17). Moreover, the Commission remains accountable to the people – the source of its delegated power – because its power can be removed through a voter initiative or a measure referred to the people by the Legislature. Ariz. Const. art. 4, pt. 1, § 1(2); id. at art. 21, § 1.1 Indeed, the Arizona Supreme Court has definitively held that the Commission acts as a legislative body under Arizona law, through delegation of legislative power from the people. Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 220 Ariz. 587, 594-95 ¶ 19, 208 P.3d 676, 683-84 (2009). The Legislature’s argument that this interpretation was made in deciding the state court’s standard of review does not alter the nature of the Commission’s constitutional authority.
The Legislature relies almost exclusively on a sentence in Smiley, which says the term “Legislature” means the state’s representative body, but neglects to cite the following sentence which states that “[t]he question here is not with respect to the ‘body’ as thus described but as to the function to be performed.” 285 U.S. at 365. Thus, the Court held a functional analysis must be performed when construing the term “Legislature” under the Elections Clause. Id. The functional analysis applied by the Court in Hildebrant and Smiley, and recognized in Hawke v. Smith, 253 U.S. 221 (1920), does not require redistricting to be performed solely by the Legislature but rather pursuant to the state’s legislative process, which in Arizona, includes the citizen initiative. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (“The States possess a broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.”).
Significantly, Smiley and Hildebrant demonstrate that the Elections Clause does not exempt state legislatures from the normal course of regulation by state constitutions. Smiley, 285 U.S. at 365. Where the U.S. Constitution calls upon the state legislature to engage in lawmaking, a state constitution’s supremacy as to legislative authority remains intact. Id. at 365-69; see also People ex rel. Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003) (the U.S. Constitution does not grant redistricting power to the state legislatures exclusively and the state may draw congressional districts via any process it deems appropriate), cert. denied sub nom. Colo. Gen. Assembly v. Salazar, 541 U.S. 1093 (2004). (emphasis mine)

I expect to receive, within the next few days, a document listing each lawsuit, its current status and what due dates and hearing dates have been set for each. Currently, a hearing on the AIRC Motion to Dismiss the lawsuit where the poor, downtrodden Arizona Republicans claim that their vote has been diluted will take place on October 31 at the Sandra Day O'Connor federal courthouse in downtown Phoenix.

Three documents were filed by counsel for plaintiffs (first named plaintiff is our good friend Wes Harris) in that case on Friday, Sept 7. 
  • Response to Motions to Dismiss (68 pages, including a "Plan X," sample maps and 13 pg resume for and two affidavits from a Republican redistricting consultant whose claims Harris et. al. rely on for their "heart rending" story of why they are having their political voice/vote diluted) Essentially attacking Strategic Telemetry and claiming all decisions were made strictly for partisan purposes. 
  • Response opposing request for judicial notice previously made by the IRC and proposed intervenors (4 pages). "In their motion, the IRC seeks judicial notice of the truth of cherry-picked statements recorded in hearing transcripts." Cantelme apparently thinks this will prejudice his case and since he disagrees with the items about which the IRC seeks judicial notice, he cries, "not fair."
  • Plaintiff Rule 56 motion asking the court to deny the IRC motion to dismiss (three pages). Language in this document seems like a Hail Mary pass to me, hoping to get the court to order that Cantelme and Liburdi get to proceed with discovery. If I recall correctly, one of the things they want to be able to do is to get recorded depositions from the five commissioners in their desperate hope of finding something (fishing expedition) on which they can point and say, "AH HA! We knew it!"
My overall impression from a quick overview look at these three documents from Harris and company is that somebody has put a helluva LOT of money into this. Which takes us back to UNfair Trust. The lobbying group reportedly comprised of GOP leadership of the Arizona Legislature, the AZ GOP Congressional delegation and undisclosed money sources (one of which that had been potentially identified as early as February or March 2011 was Arizona Diamondbacks' General Partner Ken Kendrick).

The legal and geographic information system consulting costs on these documents alone has to have been enormous. So, we are back to the influence of DARK MONEY on Independent Redistricting in Arizona for the current cycle.

Here's a Bill Moyers program from a few months ago on that subject. It's long, but if you want insight on DARK MONEY influence in this process, it might be worth your time.

There is also NO QUESTION in my mind that before ANY map drawing took place in 2011, David Cantelme had already plotted with somebody (whoever is supplying the funding for this outrageous quest) to proceed with the attack on the process that we see in the documents filed last Friday.

Recall that Cantelme verbally assaulted me in July 2011 with what amounts to a blatant and brazen disclosure of this strategy.
However... Cantelme revealed much more than he wanted.
After expressing his outrage that I swore at him by calling his client unFair Trust, he began an aggressive verbal attack aiming to get me to engage on his terms.  He repeated his attack, rapid fire, for what seemed like a couple of dozen times.  I never took the bait.  But I did repeat, as many times as he attacked, that I refused to engage on his terms and would not take his bait.
What was he trying to get me to do or say?
He asked repeatedly if I was against allowing Latino voters to be protected by the Voting Rights Act.  When I refused to answer his question he alternately said it was because: I was afraid; or I did not want Latinos to be protected by the Voting Rights Act.
I have to give them credit (or blame) for not giving up. But I have not given up either.


When I receive the chart or list of hearing dates and filing due dates, I will post them.

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