Arizona Eagletarian

Arizona Eagletarian

Thursday, August 8, 2013

Catching up -- Redistricting

Last week, the Arizona Independent Redistricting Commission filed its response to the Harris (Cantelme) supplemental brief as ordered by District Court Judge Roslyn O. Silver last month.
Plaintiffs have from the beginning alleged that their case would show that the Commission created minor population deviations for impermissible partisan reasons. When Plaintiffs failed to establish evidence of partisan motivation, they shifted their theory to a referendum of the Commission’s compliance with the Voting Rights Act, including the Commission’s efforts to ensure that the redistricting plan obtained preclearance from the Department of Justice. But Plaintiffs’ claim fails on the facts and the law for the reasons set forth in Defendant’s Post-Trial brief (Doc. 219). 
Plaintiffs cannot rely on Shelby County to rescue their case. Plaintiffs never plead or argued that the constitutionality of Section 4(b) or 5 of the Voting Rights Act was an issue in this case, despite that Shelby County was pending and fully briefed at the time of trial. Instead Plaintiffs claimed that partisanship was the sole motivation for the minor population deviations and that every possible justification—including compliance with the Voting Rights Act—was a pretext. Plaintiffs have not met their burden, and Shelby County provides them no help. 
In any event, the Court’s decision in Shelby County both supports the Commission’s defense and confirms that, to the extent there is anything to dispute at all, the dispute belongs in Arizona’s courts. [...]
Whether the Commission misinterpreted the Voting Rights Act, or whether it is obligated to seek preclearance, does nothing to show that the Commission was putting up pretexts to hide partisan ends (assuming partisan ends are of constitutional concern in political redistricting). Plaintiffs ask for nothing short of an invasive second-guessing of the Commission’s legislative action, a result that encourages federal court actions challenging state redistricting plans and does nothing to preserve districting as “primarily the duty and responsibility of the State.” Id. (quoting Perry, 132 S. Ct. at 940); Cox v. Larios, 542 U.S. 947, 951-52 (2004) (Scalia, J., dissenting) (observing that challenges to legislative maps with deviations under 10% based on “impermissible political bias” are “more likely to encourage politically motivated litigation than to vindicate political rights” (emphasis in original)). [...]
For the foregoing reasons, the Commission respectfully requests that this Court uphold the constitutionality of the legislative map. If the Court needs to resolve any state-law issues prior to reaching its final determination, the Commission respectfully requests that it abstain under Pullman, so that the parties may promptly seek a state law determination in state court.
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Additionally, the Navajo Nation filed an amicus curiae brief that includes some intriguing insight on why the US Supreme Court Shelby County ruling is of no consequence to Cantelme's complaint.
Shelby County does not affect the issues presented by the Plaintiffs in this case. Plaintiffs claim that the Legislative Plan violates the one person, one vote principle set forth in the Fourteenth Amendment and ask this Court to interpret the meaning of the equal population requirement in the Arizona Constitution. Dkt. 55 at 38-41. Plaintiffs did not, however, bring a claim under the Voting Rights Act, 42 U.S.C. § 1973, specifically they did not bring a declaratory action claiming that either Section 4 or Section 5 is unconstitutional; therefore, Shelby County has no impact on this Court's decision. In addition, this Court should abstain from interpreting Arizona's constitutional equal population provision.
In other words, as significant as the Supreme Court ruling that Arizona is no longer required to seek preclearance for changes to voting laws or procedures (including redistricting) is, that's NOT what the Harris case was about. And oh, by the way, Judge, since you're also thinking about whether a federal court should rule on this matter in the first place, we believe it's an eleventh amendment issue that should be left to the state courts. The Navajo Nation brief concludes:
The issue in this case is whether the Legislative Plan is constitutional. Shelby County does not impact this Court's analysis in that regard. The Commission was required to comply with the Fifteenth Amendment, which is enforced through the preclearance mechanism of Section 5. The facts demonstrate that the Commission considered numerous factors under state and federal law. Nothing in Shelby County bolsters Plaintiffs claims or impacts this Court's ability to review the federal constitutional question under the Fourteenth Amendment. The Legislative Plan is presumptively valid and Plaintiff's failed to rebut this presumption. Because the plan does not violate the federal constitution, this Court should follow Arizona's interpretation that the equal population requirement mirrors the federal requirement for legislative plans and deny Plaintiffs' request for relief. (emphasis mine)
Of course, Plaintiffs' request for relief was for the court to declare the legislative district map unconstitutional.

Plaintiffs (our good buddy Wes Harris and his merry band of malcontents, with David Cantelme as lead counsel) will now be allowed to respond to the AIRC (and perhaps also the Navajo Nation) briefs. The deadline for that final filing is this Friday (August 9) and the brief is supposed to be limited to 10 pages.

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The Yellow Sheet Report (8/6) noted trends in Arizona's voter registration numbers.
It has been clear for some time that, while Republican registration is increasing slowly, Dem registration is declining and the pool of voters registered as something other than Dem or Republican has grown dramatically. The last two years or so, since the IRC established a baseline voter registration mark on which it based the new maps, are no exception. Since the IRC’s snapshot of the voter rolls (which seems to have been taken around July 2011, given historical voter registration numbers), Republican registration has increased by 3,189, Dem registration has gone down by 21,462 and OTHER registration, including independents and minor parties, has increased by 35,834, a full order of magnitude more than the growth in GOP voters. In that time, the gap between Republican and OTHER registration has shrunk from 55,760 to 23,115 voters. If the trend continues, OTHER registration threatens to intersect and exceed Republican registration in the near future. If the average rates of change for the three voter registration categories over the past four years holds true ... Republicans will be outnumbered by OTHERs within the next six months. 
Here's a graph they presented showing the trends:


While it's an unpleasant reality that Democratic voter registration has been falling, willfully choosing to not come to grips with it will solve nothing. Figuring out why it's been moving in that direction is probably important. However, going forward, it will be even more important to understand how and why voters vote the way they do.

Let's hope somebody has been working on that research.

However, that brings up the issue of how elected lawmakers vote on issues presented to them. There have been a number of recent votes by Arizona's Congressional representatives that rightfully make us wonder if they actually Represent US.

This is particularly irksome for those representing competitive Congressional districts. Press releases follow disappointing and controversial votes presenting rationalizations and justifications for not taking bold stands. One case in point is the recent vote on the Amash amendment to limit National Security Agency spying on American citizens. Arizona's Republican Congressmen, except for Franks, voted to limit the NSA domestic spying activity, as did Democrats Grijalva and Pastor. However, Barber, Kirkpatrick and Sinema wimped out and voted against the measure.

My hunch is that those three votes were made as a triangulation maneuver.

How does this relate to voter registration and redistricting?

In each case where the voter registration for an Arizona Congressional district is not competitive, the Member of Congress was free of worry about the 2014 election consequences and voted predictably as one would expect based on their history. Trent Franks, being generally a fan of government intrusion into the moral (including bedroom) decisions of Americans -- most notably his alignment with Cathi Herrod and her brand of right-wing political extremism -- predictably would favor spying on Americans as a routine matter.

Messrs Salmon, Gosar, Schweikert, Grijalva and Pastor, on the other hand predictably favor civil liberties and enjoy adequate registration advantages to discourage big money donors from challenging them in next year's election.

However, the closely competitive balance of Arizona's First, Second and Nineth Congressional Districts means Democrats Kirkpatrick, Barber and Sinema respectively can reasonably expect intense campaigns and challenges from Republicans. Big Money/Special Interests WILL be lustfully eyeing all three of those seats in the US House of Representatives. Therefore, while a bold vote in favor of civil liberties might be privately preferred by those Special Interests, they want the seats and will fund the most divisive and nasty campaign to unseat the Democratic incumbents as they possibly can.

Which takes us back to Represent.US and the American Anti-Corruption Act which will eventually and ultimately get multi-partisan support. But not from the corporate interests that have had a stranglehold on Congress for as long as we can remember.

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