Redistricting -- why I think AIRC lawsuit loss is longshot

In the final PRE-trial order issued by the three-judge panel, a number of things are worth reflecting on now that the trial over and done.

First, let's consider what the plaintiffs had to prove in order to prevail. Plaintiffs' bottom line concern and the crux of the issue before the court:

This is an action brought by Plaintiffs for alleged dilution of their votes by unjustified population deviations in legislative districting for the sole purpose of partisanship, in violation of the one-person/one vote principle of the equal protection clause of the Fourteenth Amendment to the United States Constitution.... (emphasis added)

I believe plaintiffs failed to prove the essence of this concern.

Each of the current plaintiffs resides within a district the population of which exceeds the ideal population of an Arizona legislative district of 213,067. Plaintiffs are registered Republicans. The legislative districts in which they reside are as follows: Wesley W. Harris, District 20; LaMont E. Andrews, District 17; Cynthia L. Biggs, District 12; Lynne F. Breyer, District 23; Beth K. Hallgren, District 16; James C. Hallgren, District 16; Lina Hatch, District 17; Terry L. Hill, District 6; Joyce M. Hill, District 6; Karen M. MacKean, District 6; and Sherese L. Steffens, District 11

Let's see to what extent these voters' votes were diluted.
LD20 (Wes Harris) is now represented by Republicans Carl Seel and Paul Boyer in the House; and Republican Kimberly Yee in the Senate.

LD 17 (LaMont Andrews and Lina Hatch) is represented by Tom Forese and JD Mesnard in the House; Steve Yarbrough in the Senate, all Republicans.

LD12 (Cynthia Biggs) is represented by Eddie Farnsworth and Warren Petersen in the House; her HUSBAND Andy Biggs in the Senate, all Republicans.

LD23 (Lynne Breyer) is represented by Michele Ugenti and John Kavanagh in the House; Michele Reagan in the Senate, all Republicans.

LD16 (Beth and James Hallgren) is represented by Doug Coleman and that powerhouse of mental acuity, Kelly Townsend in the House; Rich Crandall in the Senate, all Republicans.

LD 6 (Terry and Joyce Hill and Karen MacKean) are represented by Brenda Barton and Bob Thorpe in the House; Tea Potter Chester Crandell in the Senate, all Republicans.

LD11 (Sherese Steffens) is represented by Tea Potters Steve Smith and Adam Kwasman in the House; Captain Al Melvin in the Senate, all Republicans.

You would THINK these people would be happy they were able to elect candidates of their choice. But NO, they won't be satisfied until they have a say in who EVERYBODY elects and then making sure there are TOO FEW Democrats to have an influence on state lawmaking and public policy.

THAT is the bottom line in this case. Cantelme's written pleadings and questioning of witnesses focused on the partisan advantage that was (allegedly) intentionally built into the legislative district map. The irony not only is seeping out between the cracks but is freely flowing like a fountain through the gaping holes in Cantelme's case.

Namely, irony that Cantelme's brazen bullying for the last two years to get the Arizona Independent Redistricting Commission to ensure full and aggressive compliance with the Voting Rights Act, especially Section 5. And irony the first AIRC effectively diluted the voice of minority voters in the state legislature by making VRA districts so safe that Democratic voters could not have a voice in election of adjacent districts (regardless of the population deviation) -- such that the 50th Arizona Legislature developed a Republican supermajority. That supermajority resulted in numerous radical right-wing bills passing and becoming law.

By the way, I live in a legislative district that has a population deviation which, according to Cantelme, diluted my vote. LD26 has a higher population than the ideal. He has emphasized that LD26 is one of a handful about which he is most upset. You see, I was among those who successfully elected candidates of OUR choice. They are all three Democrats, one of whom is Hispanic. But Cantelme won't be happy until he wipes out OUR ability to elect the candidate of OUR choice.

In the 50th Legislature (2011-2012) Arizonans elected 19 Democrats to the House of Representatives (out of 60 seats) and 9 Democrats to the Senate (out of 30 seats). In the current Legislature, Democrats hold 24 seats in the House and 13 seats in the Senate. Republicans STILL choose who chairs committees and which bills get heard. So, the net effect of the alleged vote dilution is that Republicans have to conduct themselves with just a tad more decorum and a smidgen less hubris in promoting their radical right-wing agenda.

Back to the final pretrial order:

The following are disputed questions of fact to be tried:
1. Whether the IRC’s sole reason for the population deviation was partisan advantage and other asserted reasons were pretextual or not in good faith. Subsumed in this:
a. Whether the IRC had actual partisan bias.
b.  Whether the IRC gave Voting Rights Act districts population deviations to improve the minority ability to elect candidates of choice or strengthen other Voting Rights Act districts.
c. Whether the IRC adopted the population deviation to comply with the Voting Rights Act § 5.
d. Whether the IRC adopted the population deviation for any other legitimate state purpose.

2. Whether the IRC made a good faith attempt to minimize population deviation.

3. Whether Districts 2, 3, 4, 7, 8, 19, 24, 26, 27, 29, and 30 are or may be properly considered a majority-minority, coalition, or cross-over district, or none of the foregoing, when determining whether the IRC plan retrogressed or could be counted toward satisfaction of the Voting Rights Act § 5.

I firmly believe that plaintiffs failed to make their case on any of these questions of fact.

The following questions of law may be decided:

1. Whether the equal protection clause of the Fourteenth Amendment prohibits deviation from equal population in legislative districts done only for partisan purposes.

2. Whether the Voting Rights Act § 5 requires or authorizes population deviation in legislative districts to comply with the Act.

3. If the Voting Rights Act § 5 does not require or authorize population deviation in legislative districts to comply with the Act:
a. Whether Arizona Constitution, art 4, pt. 2, § 1(14) limits the policy goals for which the IRC could make adjustments to detriment of equality of population to the five other criteria stated therein.
b. Whether a good faith but mistaken attempt to comply with the Voting Rights Act is a legitimate state interest justifying population deviations, even if it results in partisan advantage.
c. Whether population deviation to benefit protected minorities that is not authorized by the Voting Rights Act § 5 is racial discrimination prohibited by the equal protection clause.
d. Whether strict scrutiny applies to such population deviation.

4. Whether the Eleventh Amendment bars reliance on or resolution of state law necessary to deciding the federal claims.

5. Whether relief may include instructions to avoid violation of the equal protection clause in a revised plan and court adoption of a constitutional legislative plan in time for the 2014 election, if the IRC cannot do so.

6. If Plaintiffs prevail, whether they are entitled to an award of costs and attorneys’ fees against the IRC pursuant to the 42 U.S.C. § 1988.

I cannot say on which of these questions the court will or will not rule. But these questions of law are those which have and will cause all three judges to give very thoughtful consideration to the outcome they ultimately impose on the citizens of Arizona.

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Actually, the one public policy issue on which the decreased Republican control of the legislature matters most on is the implementation of the federal government's Medicaid Expansion pursuant to the Affordable Care Act. As things stand right now, since there are too few Republicans to override a veto of any bill, Gov. Brewer (who wants to see the Medicaid expansion enacted in Arizona) holds substantial leverage in bargaining with lawmakers. The 2011-2012 legislature would have likely completely ignored Brewer's demand on this issue.

So, I have to believe, based on this macro level look at the lawsuit, the trial and the ramifications, that nixing the current map is a longshot.