Arizona Eagletarian

Arizona Eagletarian

Friday, April 12, 2013

Redistricting -- What's in the final briefs?

If THIS is the best he can come up with, David Cantelme has been wasting a whole lot of time and a whole lot of taxpayer and Republican special interest money over the last two years.

Plaintiffs' opening brief has two pages of Table of Contents, two more pages at the start for a Table of Authorities and then the narrative starts like this:
The IRC diluted Plaintiffs’ votes. No legitimate interest of the State of Arizona justified or compelled the vote dilution. To this end, Plaintiffs have alleged that the IRC:
     systematically overpopulate[ed] Republican plurality districts and
     systematically underpopulat[ed] Democrat plurality districts with no
     lawful state interest justifying such deviations from equality of population
     among Arizona legislative districts.
Opening with the conclusion they HOPE the three-judge federal court panel will agree with them on. The Republican National Committee (who footed the bill for Cantelme's "expert" witness and who knows how much more) and others spent an awful lot of money on a hope and a prayer. But they certainly did not prove any factual basis for those allegations.

Ultimately, this appears to be about questions of law. I can't claim any degree of insight on how those questions will be parsed and answered, but it really appears to me that the bottom line was to discredit the entire process of Independent Redistricting any which way they could. On that bottom line question, I can't see how they can get away with their fiendish plot.

Further, plaintiffs' brief says:
The United States Supreme Court stated the equal-protection test 49 years ago in Roman v. Sincock:
In our view the problem does not lend itself to any such uniform formula, and it is neither practicable nor desirable to establish rigid mathematical standards for evaluating the constitutional validity of a state legislative apportionment scheme under the Equal Protection Clause. Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination. (emphasis added)
Plaintiffs' citation (above) would seem to completely discredit any claim they would have regarding questions of law. Recall that the burden of proof in this case is completely on the plaintiffs to demonstrate that there was -- according to this case law -- any taint of arbitrariness or discrimination. Rather than argue on my own whether they succeeded (which I certainly do not believe they accomplished) I'll quote from the brief filed by the Arizona Independent Redistricting Commission in a moment.

At the end of their 46-page brief, here's what Cantelme and friends say they want the court to do:
Here, the Court should order the IRC to reconvene and begin anew the four-step process for redistricting Arizona’s legislative seats. ARIZ. CONST. art. 4, pt. 2, § 1(14). The order should direct that district boundaries should be adjusted only to satisfy the criteria set forth in Article 4, part 2, § 1(14) of the Arizona Constitution, and that the IRC make a good faith effort to avoid deviations in district population. It should not employ population deviations among districts unless doing so is an incidental result of applying the redistricting criteria set forth in § 1(14). Using population deviations to obtain preclearance under Section 5 of the Voting Rights Act is not permitted, and neither is using population deviation in order to create influence districts, cross-over districts and coalition districts. At a minimum, the Court should order that the IRC reverse the change made to LD 8 at its December 19, 2011 meeting that resulted in underpopulating that district and impacting the surrounding districts of 11, 12, and 16. See generally TE 405. See Department of Justice Redistricting Guidance at 76 FR 7470 at 7472 (“Preventing retrogression under Section 5 does not require jurisdictions to violate the one-person, one-vote principle.”) (citing 52 FR 488 (Jan. 6, 1987)). TE 34. The Court should set reasonable time limits on the IRC’s task to create a substitute plan. Should the Court determine that there is not sufficient time for the IRC to create a substitute plan in time to hold the 2014 primary elections, it may order the use of a temporary plan until the IRC is able to finalize and obtain preclearance.
And, oh, by the way, IF we win, we are going to ask the Court to make those mean people at the IRC pay us for all the time WE spent on this lawsuit. That, of course, is a HUGE "if." And I'm not sure how much hubris it takes for Cantelme and Liburdi to demand that Arizona taxpayers foot the bill for their quest to undermine independent redistricting, but it sure takes a lot of gall.

-----

The AIRC brief, 42 pages long, begins:

Plaintiffs cannot prevail without proof that the minor population deviations in the legislative map resulted solely from the promotion of an unconstitutional or irrational state policy. Before trial, Plaintiffs promised the Court that they would prove that “a policy of increasing the Democratic Party’s strength” (i.e., partisanship) was the cause of the minor population deviations and that a broad conspiracy drove the process and dictated the outcome. (See Doc. 176 at 2.) Yet by the end of the trial, lacking any direct evidence of bad intent, they now urge the Court to strike down the legislative map because the Commission did more than Plaintiffs say was required to comply with the Voting Rights Act; because an unnecessary exercise of discretion, even for a constitutionally valid purpose, is enough to infer an improper motive; and because the final population and registration numbers, despite explanations throughout the record of their causes, lead directly to the conclusion that compliance with the Voting Rights Act and other constitutional requirements was nothing more than a pretext for creating a Democratic map. As the trial has shown, however, Plaintiffs’ theory is contrary to the clear facts, decades of case law, and well-established principles governing redistricting and the proper role of courts in the process. More specifically, Plaintiffs’ claims fail because (i) they cannot overcome the accepted presumption of constitutionality for legislative plans within a ten-percent deviation; (ii) the record of Commission proceedings, clearly the best evidence of the Commissioners’ intent, explains all of the decisions made, the permissible reasons for such decisions, and the effect of those decisions on the final map; (iii) ignoring the record and relying only on their characterization of the final population figures, Plaintiffs cannot satisfy their burden to show that the Commission acted with a discriminatory purpose; (iv) absent a radical departure from governing law, the Commission’s good-faith efforts to satisfy the Voting Rights Act constitute legitimate reasons for the minor population deviations; and (v) the notion that the final map is evidence of a Democratic conspiracy is viable only if the Court concludes that the alleged conspirators were inept and sought to guarantee their entrenchment as the minority party in Arizona for as long as the map remained in effect. Plaintiffs did not meet their burden. (emphasis added)
As if that wasn't enough,
Plaintiffs’ “pretext” claim is fatally weakened by a second critical fact. The Court must not look at discriminatory impact from only one angle, but instead must evaluate the complete picture to see whether there truly is a discriminatory impact. Viewed objectively, the legislative map is a Republican friendly map, with Republicans winning 17 out of 30 senate seats and 36 out of 60 house seats in 2012. (Ex. 549.) Republicans are overrepresented relative to their two-way registration. (Exhibit 448 ¶ 12; Exhibit 447 ¶ 37.) And the Republicans will likely retain control of the legislature for the decade. (Trial Tr. at 327.) The idea that the Commission would overpopulate Anglo Republican districts for the purpose of invidious discrimination, yet create a map that ultimately over represents Republicans in the Legislature makes no sense unless it was part of a wholly illogical Democratic scheme to entrench itself as the minority party.
That paragraph also goes to my belief that this entire lawsuit was about nothing more and nothing less than undermining the concept and practice of independent redistricting. Further, taken in the larger context of Republican efforts (in Arizona AND other states) to undermine the Voting Rights Act make this whole scenario into theater of the absurd.

The lessons of American history are smacking us upside the head pretty hard right now. From the start, enshrining civil rights in the founding documents has been one thing, but adapting everyday life something different altogether. My only consolation in this lawsuit is that in the event plaintiffs prevail and the current legislative district map is invalidated, a MORE competitive and more balanced map that doesn't so blatantly favor Republicans can be fought for and enacted.

Getting to the conclusion (also from the AIRC brief),
This Court determined this was an “extraordinary” case and allowed discovery of the Commissioners and staff on issues central to the federal claim. See Arlington Heights, 429 U.S. at 218. Plaintiffs have had unprecedented discovery yet have been unable to find their “smoking gun.” This should support a strong inference of the absence of discriminatory intent. In sum, Plaintiffs have failed to prove that the Commissioners purpose was to harm Republicans rather than to achieve preclearance. 
CONCLUSION
For the foregoing reasons, the Commission respectfully requests that the Court dismiss Plaintiffs’ claims and enter judgment in the Commission’s favor.












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