I only made it in time for the last twenty minutes (or so it seemed), well after all of the AIRC commissioners had finished giving testimony, after presentation of closing arguments and during the last bit of questions posed to each side from Judges Wake and Clifton. Judge Silver did not attend this afternoon's proceedings because she was scheduled to swear in another federal judge this afternoon.
The tone of questions from the two judges could be used -- I believe improperly so -- to guess how they were inclined to rule. Of course, some of that kind of prognostication occasionally takes place with corporate media after oral arguments before the Supreme Court of the United States in high profile cases. Further reading in Law School Undercover sheds light on why, in most cases, this is not a reasonable way to predict the ultimate outcome.
Professor "X" describes strategies for success on law school exams by spelling out how exam questions are developed and different ways students prepare for and answer those questions when the time comes. From pages 103 - 106:
As one might expect, the most common question law professors get from students is how to prepare for the examination. What they really want to know, of course, is what will be the questions on the exam, but those we can't share....
Short of this, students want to know what they can do now, a week or two prior to the exam. They want to know if they should review purchased outlines, drill themselves with the help of memorization flash cards, review computerized multiple choice questions, or do something else... Their notes most likely consist of mere recitals of facts and information: they have duly recorded the class information, but have not processed it, at least not in the dynamic, active way [Professor "X"] described [previously in his book]... They probably have an outline, but it is not an outline that was created to help them see the doctrinal structure of the class or further their understanding of the connections of the course....
To earn a superior grade, the student must know what to do with all that information. The exam questions will not demand an information download. Instead, they will ask the student to put the course materials together in a way never discussed in the classroom. They will demand that students make connections between cases and doctrines, and use those connections to fashion arguments to achieve desired ends.
To prepare for this kind of exam, the student needs to begin making the needed connections as soon as possible. In other words, the student needs to know what's on the exam and what the answers will be before even setting foot in the exam room.
The best law students are the best because they know the exam questions ahead of time. That's right! They study and rehearse answers to the exact issues the exam will present to them.
They don't cheat; they anticipate....
Obviously, no student could possibly anticipate the details of this long, fictional narrative [that the author of the exam questions sets before the student]. Yet, the narrative is not the question; indeed, the narrative is designed to obscure the real questions by cloaking them in a convoluted, confusing set of circumstances, some of which are entirely irrelevant. It is the student's job -- the easy part of the student's job -- to dispel this confusion and to reshape the morass of facts and circumstances into tidy legal questions that are amenable to a logical, legal analysis. In other words, the narrative is not the question; the real question starts once the narrative is stripped to its meaningful, relevant elements.This description also exquisitely described the entire trial. Quite a bit of what plaintiffs' counsel filed in briefs and presented with witnesses was likely completely unrelated to the bottom line legal issues and questions the three-judge panel will thoughtfully consider and rule upon in due course. In contrast, the questions each judge posed was a signal -- not necessarily as to how they will ultimately rule -- instead, letting parties and observers know what they believe are the issues on which they have to ruminate and ponder.
Judge Wake cited a book, Whose Votes Count? by Abigail Thernstrom, that he believes gets at the essence of the Voting Rights Act. Amazon.com describes the book:
The Fifteenth Amendment to the Constitution of the United States guarantees that all citizens have the right to vote without regard to their "race, color, or previous condition of servitude." For almost a century the Fifteenth Amendment was a dead letter. Throughout the South millions of nonwhite Americans were excluded from the political process by poll taxes, literacy tests, and other devices. The landmark Voting Rights Act of 1965 sought to end that injustice.
In this absorbing book, political scientist Abigail Thernstrom analyzes the radical transformation of the Voting Rights Act in the years since its passage. She shows how a measure carefully crafted to open the polling booths to southern blacks has evolved into a powerful tool for affirmative action in the electoral sphere--a means to promote black and Hispanic officeholding by creating "safe" seats for minority candidates. What began as an effort to give minorities a fair shake has become a means of ensuring a fair share.
Thernstrom demonstrates how voting rights have created a "political thicket" in which Congress, the courts, and the justice Department have been lost. Why this should be true, how small statutory changes led to large and unexpected results, how civil rights groups prevailed against a conservative Senate, how Republicans have benefited from gerrymandering to increase black officeholding--these stories are all part of Thernstrom's well-told tale.
Even though the concept of the right to vote retains an aura of moral simplicity, the issue of minority voting rights is perhaps the most complex, yet least studied, of all affirmative action issues. Whose Votes Count? should stimulate the overdue discussion that the subject deserves among all those concerned with American politics. (emphasis added)That Wake would bring this book into the case illustrates the complexity -- which is no doubt why the court decided that the case should be tried -- even though certain issues are blatantly obvious. No careful observer can deny that Republican Arizona voters claiming discrimination by way of vote dilution is patently absurd. And law and precedent established by prior litigation has been quite clear that population deviations of plus or minus 5 percent in state legislative redistricting is presumed to comply with the US Constitution provision for One Person/One Vote. But that presumption is subject to rebuttal and that is the case David Cantelme has set up for two years and presented over the last week.
This afternoon, the judges noted that they consider the partisan advantage alleged by plaintiffs to be real, secondary and possibly incidental even if not unlawfully intentional. So what they will ultimately say is whether the provisions Arizona voters codified into the state constitution with the passage of Prop 106 in 2000 is a lawful state interest.
To clarify the legal question further, the judges noted that the first of the criteria the AIRC must meet is to comply with the US Constitution and the Voting Rights Act. That criteria is NOT qualified by "to the extent practicable." So, bottom line, the court will declare whether the AIRC complied with the Constitution and the Voting Rights Act.
The ruling will take some time to develop. Both parties will file closing briefs not later than close of business on April
The only thing, I believe, that the judges were telegraphing to the attorneys arguing the case for each side -- with their questions -- was what to include in the closing brief.
Clearly, the stakes are incredibly high no matter which side wins. Politically, it seems quite obvious that if plaintiffs win, we face the prospect of more GOP supermajorities as early as January 2015. Not to mention that such a scenario means the AIRC will have to begin the process all over again. How many more millions of dollars will the legislature have to authorize spending to rehash all of the vitriol, the series of public hearings all over the state again?
Judge Wake wondered aloud this afternoon why the AIRC didn't just tell the Department of Justice to stuff it, so to speak, and demand preclearance on legislative districts based on exactly identical population. One could (if inclined to try to guess the outcome based on that question) read it as Wake being inclined to rule in favor of the plaintiffs.
The major difference in the process here, contrasted with oral arguments before the Supreme Court of the United States, is that here the attorneys get to file the closing briefs subsequent to the oral argument. So, it makes much more sense that Wake was suggesting that he wanted both sides to address that question in their final written documents.
The fact of the matter is that based on Arizona's history, specifically the most recent prior redistricting, is that the Steve Lynn chaired (with Lisa Hauser as lead counsel) AIRC tried to get DOJ to do that very thing. I don't know off the top of my head what the legislative district population deviations were, but I do know that DOJ very emphatically balked at approving the LD map the first time because they found the AIRC intended to retrogress.
Further, Judge Wake also mentioned the 2003 Georgia v Ashcroft case which he said was "a game changer" that was intended to make it easier to obtain DOJ preclearance. So, he clearly was looking for counsel to answer his questions on how that case relates to the AIRC map. From the wikipedia page on the 2003 Supreme Court ruling:
The [Supreme] Court held, however, that the district court failed to consider all the factors relevant to § 5 preclearance when it examined whether the 2001 state-senate redistricting plan resulted in a retrogression of black voters' effective exercise of the electoral franchise.Judge Clifton wondered (aloud) if the AIRC map would have been acceptable if it had been drawn by a partisan legislature, since legislatures make no pretext about seeking partisan advantage. As one would expect, Cantelme claimed it would still be overly problematic. Of course, if it was a Democratic legislative majority drawing this map, Cantelme would still litigate it. But Clifton's question suggests something AIRC counsel should consider addressing in the final brief.
I still have to think nullifying the current LD map is a longshot. But I don't base that opinion on any reading of the judges in this case.
What I do get by reading the judges is that they don't want to have their judicial legacy tainted by history recording that THEY failed to properly consider all the factors relevant to the claim that voting power of Republicans was diluted by the independent redistricting process. That, in my opinion, is the bottom line.