Arizona Eagletarian

Arizona Eagletarian

Wednesday, September 25, 2013

Hubris, thy name is Andy Tobin UPDATED 3:50pm MST 9-26-13

Following up on my previous blog post on the contempt the Republican dominated Arizona Legislature has for Arizona voters, I am compelled to highlight the persistent nature of the willful judgment errors of certain GOP leaders.

Capitol Media Services reporter Howard Fischer quoted Speaker of the Arizona House of Representatives, Andy Tobin (R-LD1),

Tobin said Monday he envisions a special legislative session this fall to recraft the districts if the court sides with challengers.
He said the lawsuit has nothing to do with the outcome of the 2012 races using the lines the commission drew following the 2010 census. Tobin said he always has opposed the idea of the non-elected commission crafting boundaries, but was not in the Legislature in 2002 or in a position to contest what happened then.
But Tobin conceded there was little interest by Republicans in challenging the process at that time because the lines drawn a decade ago were probably more favorable to the GOP. The work of latest commission -- new members are named every decade -- was decidedly different.
"The truth is, this Independent Redistricting Commission was stolen,' he said.

Tobin also said his interest is unrelated to the fact he does not live in the congressional district where he wants to run, the one currently represented by Democrat Ann Kirkpatrick.
People who know Fischer recognize that even though he did report Tobin's denial of a connection between the 2012 Congressional election outcome and the lawsuit, he (Fischer) probably doubts the denial. Maybe it comes from viewing too many episodes of Arizona Horizon's Journalists' Roundtable, but I can see Fischer's face contorting* with that doubt very easily.

Fischer seems to imply that Tobin's motivation is related to his desire to run for Congress. Even if that desire is in the back of Tobin's mind, the bottom line issue is that Republicans are desperate to nullify Arizona's Independent Redistricting in any way possible.

That Tobin continues to hold to and speak forth the faulty claim that "this Independent Redistricting Commission was stolen" highlights his incredible arrogance. How many times has a court validated Tobin's claim? ZERO. And Republicans have tried to make the claim in court. How many times has a court declared that claim to be completely without merit? The Arizona Supreme Court did so in November 2011.

By the way, remember just a short time ago when the Arizona Supreme Court issued its opinion declaring this year's HB2600 unconstitutional and thereby completely striking it down?

This situation -- Andy Tobin seeking to rekindle the controversy from 2011 -- is a prime example of WHY the GOP dominated legislature seeks to politicize Arizona's judicial branch with bills like HB2600 and the 2012 general election ballot Prop 115. The People of Arizona resoundingly defeated Prop 115 and the Arizona Supreme Court struck down HB2600 for this very reason. Because, that is, self-serving Republican lawmakers (and yes, someday it might be the Democrats trying it, but they aren't now) make arrogant statements like Tobin did to Fischer even after the courts make it clear the argument is hogwash.

Further, Tobin knows full well that no court is going to grant the injunction he requested last week. There will be no special legislative session anytime soon wherein the legislature will get to redraw the Congressional district lines. The ONLY possibility of a GOP win in this lawsuit is if they succeed in getting the Supreme Court of the United States to grant a writ of certiorari.

For that to take place, the suit must go through the trial (US District Court) and appeals (9th Circuit Court of Appeals) courts. I can't imagine any way that will happen any time in 2013.


Note: * For an example of Fischer's "oh, sure" look, check the Arizona Horizon link at 4:00 until 4:20 into this video clip from the Friday, September 20 edition. Later in the clip (at about the sixteen minute mark) the discussion turns to Tobin's desire to run for Congress.


According to Loyola University Law Professor Justin Leavitt, in lawsuits like this one, when a three-judge panel is convened, the party which does not prevail is able to appeal directly to the US Supreme Court which must review the case. Leavitt also indicated, in an email that,
I think your assessment of the merits is about right. And it's entirely possible that they're just trying to get the case before SCOTUS. If so, they've got a good vehicle: there's a special procedure that's now really only used for a few types of redistricting and campaign finance cases -- constitutional challenges to statewide district plans (like the legislature's suit) are heard by panels of three federal judges, and are then appealed directly to SCOTUS. This isn't like SCOTUS's normal certiorari procedure, where they decide which cases they want to hear and which they don't -- it's a do-not-pass-go straight mandatory appeal to SCOTUS.
That means that SCOTUS has to deal with the question. Now, most of these cases receive just summary, one-word answers: "appealed" or "affirmed." And that's also what I'd expect here -- a one word "affirmed" for a district court decision tossing out the case...
I'd be surprised if four, much less five, of the current Justices agreed. For one thing, if the state's argument is right, it's not just about the power of the initiative -- it also means that governors have no power to veto any state legislative bills regulating aspects of federal elections. (It's even trickier if there's an omnibus bill -- the governor could presumably veto any part of the bill except the part affecting federal elections.) After all, "Legislature" means "Legislature." That's part of the reason why the Court didn't go there in the early 20th Century, and why I think it's really unlikely to do so now.
So, my description of the procedure whereby a party must seek a writ of certiorari is not correct. But that Tobin's hope is to get the Supreme Court to overturn settled law still applies.

1 comment:

  1. I think this is close to appreciation week and I want to say "thank-you".
    You always edify, Steve, and that is a very good thing.