Arizona Eagletarian

Arizona Eagletarian

Tuesday, November 20, 2012

Redistricting -- Federal Court litigation

On Monday, news broke that US District Court Chief Judge Roslyn Silver had issued an order denying the Arizona Independent Redistricting Commission's motion to dismiss the lawsuit challenging the legislative district maps.

The Associated Press and Capitol Media Services have both reported on this story.

Exerpts from Silver's order:
Plaintiffs allege that the adopted legislative map violates the Equal Protection Clause of the Fourteenth Amendment by diluting the Plaintiffs’ votes through unequal population distribution in legislative districts for an impermissible purpose. A challenge to state legislative apportionment under the Equal Protection Clause presents a justiciable controversy.
...states may exercise some flexibility in constructing legislative districts. “So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible.” Id. at 579. Any divergence from equality among districts must therefore result from “factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. 695, 710 (1964).
A “maximum population deviation under 10%” does not, without more, make out a prima facie case under the Equal Protection Clause. Brown v. Thomson, 462 U.S. 835, 842 (1983). There is a rebuttable presumption that a population deviation less than 10% was the result of an “honest and good faith effort to construct districts . . . as nearly of equal population as is practicable.”
If the maximum population deviation in a legislative apportionment plan is less than 10%, the burden shifts to the plaintiff to prove that the apportionment was arbitrary or discriminatory. Daly, 93 F.3d at 1220. To meet that burden, a plaintiff must show any deviation is “an arbitrary or discriminatory policy.”
Further, the plaintiff must prove that “the asserted unconstitutional or irrational state policy is the actual reason for the deviation.”
Plaintiffs allege that the Commission systematically overpopulated Republican districts and under-populated Democratic districts for the sole purpose of maximizing Democratic Party strength in the state legislature. Their only federal challenge is that bare partisan political advantage is not a rational state policy justifying population deviation under the federal constitution and is a prohibited policy under Arizona law.
And here is the bottom line in all of the language in the 12-page order:
On a motion to dismiss, the facts alleged must be taken as true unless conclusory or implausible. Plaintiffs have alleged data, details, context, and motivations arguably inferable from conduct. Regardless of what they can prove at trial, Plaintiffs have sufficiently alleged that the Commission added to some people’s votes and diluted other people’s votes based only on their expected party preference. (emphasis added)
Silver also discusses the court's rationale for denying the Navajo Nation to participate in the trial as an intervenor (while inviting its participation as amicus curiae).

Silver also addresses scheduling issues:
Time is critical in this action, as it must be concluded with relief implemented or denied, and appellate review taken, without disrupting the 2014 elections. Six months have already passed, and the pleadings are not even closed. A trial must be had by March and a prompt ruling thereafter.
Therefore, all of the motions ruled on in this order, were denied.

Plaintiffs (represented by Cantelme) were allowed to amend the complaint with respect to allegations regarding Legislative District 8. Which they did (last Friday). I remember a good bit of consternation on the part of the Republican commissioners and Republican leaning members of the public who commented at IRC hearings and meetings about this district.

Right now, it appears that the LD8 senate seat is going to be won by Democrat Barbara McGuire. The race for LD 8 House seats appears to be going in favor of the two Republicans, Frank Pratt (an incumbent for the old LD23) and T.J. Shope. 

Distinguishing issues for those races include the fact that Republican senate candidate Joe Ortiz tried (unsuccessfully) to get assistance (Independent Expenditure money) from the PAC that outgoing Senate President Steve Pierce was raising money for; and that Shope leads Democrat Ernest Bustamante (who served one term in the House representing LD23 2003-2004). In 2010, he ran again and lost by a margin of several thousand votes. Right now, it appears Shope leads Bustamante by 844 votes. So, that's why Cantelme is all a twitter (so to speak) over LD8.

Anyway, Cantelme and friends filed a 43-page second amended complaint with 116 pages of exhibits hoping to bolster their claims, which still have to be proven in court in order to make anything change.

I've not gone through the second amended complaint or the new exhibits filing, but on first glance, the exhibits appear to again have plenty of non-relevant material.

Judge Silver's order sounds sufficiently non-committal but appropriately forward thinking about the need to not unduly disrupt future elections in Arizona. And again, legislative election results seem, on the surface, to indicate that it will be pretty difficult for Cantelme and friends to prove dilution of voting strength.

Ultimately, it appears the real issue Cantelme wants to argue -- the Prop 106 language of the Arizona Constitution (establishing the AIRC) specifying that COMPETITIVENESS is a required objective/goal of the process -- is UNCONSTITUTIONAL.

If he succeeds in doing that, does he plant the seeds for voters to repeal Independent Redistricting? 

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