The occasion was a hearing at the Sandra Day O'Connor Courthouse in downtown Phoenix on Cantelme's challenge to the legislative district map approved last January by the AIRC. The setting was the Special Proceedings Courtroom. Scott Freeman was the only sitting commissioner who attended this hearing. He was mostly standoffish with me and sat on the side of the courtroom with the plaintiffs.
photo courtesy Eric E. Johnson
The plan was for a three-judge panel (chaired by chief judge for US District Court for the District of Arizona, Roslyn O. Silver) to hear arguments for 30 minutes from each side. When AIRC cases were heard in the Arizona Supreme Court (or the Arizona Court of Appeals), time limits were strictly maintained. Not so in the federal court today.
O'Grady answered tough questions from all three judges for roughly an hour. The main take away was that the three judges were well prepared. Or at least had spent time reading the briefs in this matter as well as related case law.
Cantelme's grilling from the judges lasted substantially less time. He was quite deferential, indicating he recognized that he had made some whoppers of mistakes in the amended complaint and that he hoped the court would "grant him leave" to amend it again.
After Cantelme, Judith Dworkin, counsel for the Navajo Nation, which had filed a motion to intervene in the case and a proposed motion to dismiss the case, faced a seemingly even more intense grilling from the panel. Dworkin's main point was that by virtue of rules of procedure governing this case, the Navajo Nation had a right to intervene. The judges, however, wanted to know what the Navajo Nation could bring to the proceeding that would be different from what counsel for the AIRC brings.
They seemed very emphatic about insisting that in order for her motion to be granted, her client should have some additional interest. Otherwise, the Navajo Nation could simply file an amicus brief and consult with AIRC counsel during the course of the litigation.
After the panel finished grilling Dworkin, Judge Silver announced a potential trial date of March 25, 2013 and gave a deadline of November 7 (2012) for counsel to submit proposed trial management plans. Then she said -- that is, unless we decide to grant the motion to dismiss.
A couple of reporters waited just outside the courthouse to interview Cantelme. Before they did so, however, a few people exchanged some scuttlebutt guessing that the motion to dismiss would be denied by a vote of 2-1.
Cantelme, took the opportunity to spin the situation and the entire purpose of the lawsuit when he told Capitol Media Services' Howard Fischer:
In this case, though, attorney David Cantelme contends the Independent Redistricting Commission drew the lines solely to create Democrat-dominated districts with less population and Republican districts with more. He said that means those in the overpopulated districts have less individual effect on the outcome.O'Grady, on the other hand, reiterated what has consistently been the position of the People of Arizona (officially, that is, and specifically of the AIRC) also as reported by Fischer:
...attorney Mary O'Grady told the three-judge panel the commission HAD to make population adjustments to meet other criteria, including protecting minority voting strength. And she said the commission is entitled to flexibility in how it meets its goals without having the process second-guessed and micromanaged by the courts.In other words, partisanship was NOT a factor outside of the considerations stated in the language of Prop 106 (2000 general election).
If Cantelme wins, the people of Arizona lose... in more ways than one. Most immediately, litigation costs go up dramatically. And the AIRC would be forced to begin the process of drawing the legislative district map all over again.
The three-judge panel took the allegations seriously, at least enough to put a good amount of time and effort into preparing significant and probing questions for the attorneys. The issue, whether there has been a genuine violation of Constitutional protection of one person, one vote, is a serious one and deserves their careful consideration.
But given the language in the Constitution and related case law (Cantelme, by the way, admitted that he had NO case references that go directly and completely to the issues in this case), it has to still be possible that O'Grady argued persuasively and the motion to dismiss might be granted.