Arizona Eagletarian

Arizona Eagletarian

Saturday, December 7, 2013

Redistricting Update -- Smacking GOP Legislature's Hubris UPDATED Noon 12-7-13

On Thursday, longtime social justice advocate Tim Hogan filed an Amicus Curiae brief with the federal court in the state legislature's lawsuit seeking to kill the Arizona Independent Redistricting Commission. The brief, on behalf of Dennis Burke, Bart Turner and three citizen advocacy groups (including the Intertribal Council of Arizona) begins,
This lawsuit is an attempt by the Arizona legislature to circumvent the will of the people of Arizona as expressed in two constitutional provisions that were approved by voters. These constitutional provisions are the Independent Redistricting provisions, Ariz. Const, Art. 4, Pt. 2 § 1, and the provisions enacted through the Voter Protection Act, Ariz. Const., Art. 4, Pt. 1, § 1, (6)(B) and (C).
Other Amici supported the enactment of Proposition 106 on numerous grounds, including that it would open the redistricting process to public scrutiny and remove the responsibility for redrawing district boundaries from legislators who have “the ultimate conflict of interest” in doing so. Arizona Sec’y of State, 2000 Publicity Pamphlet, p.57 (2000), available at (Argument for Proposition 106 by Miriam Neiman, Treasurer, Arizona Common Cause, Sun City and Dennis Burke, Executive Officer, Arizona Common Cause, Phoenix). (emphasis mine)
The individuals and organizations that appear as Amici in this case do so not only to defend Proposition 106 but also to vindicate the Voter Protection Act (Proposition 105) which was approved by Arizona voters in 1998. The Voter Protection Act amended the Arizona Constitution to establish that Arizona initiatives approved in the 1998 election or thereafter could not be repealed by the Arizona legislature, nor could they be amended unless the amendment furthered the purposes of the initiative and was passed with a three-fourths vote in each house of the Arizona legislature. [...] (emphasis mine)
Arizona law requires that Legislative Council prepare an analysis of each proposition approved for the ballot. A.R.S. § 19-124(B)*. If there had been any question about the constitutionality of Proposition 106, it would have been identified by Legislative Council. However, no such issue was ever identified by Legislative Council. Nor was the Election Clause issue, now advanced by the legislature, ever mentioned or discussed in the Publicity Pamphlet for the 2000 election or at any time during the campaign prior to the election.
Defendants [AIRC] have more than adequately addressed the Elections Clause argument advanced by the legislature in this case and Amici will not duplicate that discussion. Instead, Amici address issues of Arizona constitutional law that divest the Arizona legislature of the authority to even pursue its claim in this case.
In a Capitol Media Services story posted to the East Valley Tribune this (Friday) afternoon,
Peter Gentala, an attorney for the Republican-controlled state House, acknowledged that the U.S. Supreme Court has ruled that individuals have no legal standing to sue over constitutional questions of federal election laws. If the Arizona Legislature cannot sue, then no one can.
But Gentala said he doubts it will come to that. He said Hogan's claim is based on a false premise that somehow Arizona voters — and the state constitutional provision known as the Voter Protection Act — can keep the Legislature from asserting rights it has under the U.S. Constitution.
Did you catch that? House Speaker Andy Tobin's attorney boiled the lawsuit down to whether the VOTERS can "keep the Legislature from asserting rights IT has" under the US Constitution.

Let us refresh our memory about the bottom line regarding the US Constitution.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
I'm fairly confident that "our posterity" does not equate to "our corporations," or even "our state legislatures."


Since Gentala thinks the purpose of the US Constitution is to establish rights for our state legislature to assert, let's just consider an example of what the legislature has done recently to establish justice, insure domestic tranquility, promote the general welfare and/or secure those blessings of liberty to our posterity.

In this case, consider insuring domestic tranquility.

The seventh bill passed in the 2013 regular session, HB2317 provides a "work around" to people with an expired fingerprint clearance card to get a new one so they can get (or keep) a job working in schools. A fingerprint clearance card is intended to provide employers (and the people they are supposed to keep safe) assurance that the cardholder has not been convicted of certain crimes.

In HB2317, our ELECTED lawmakers are rolling the dice, laying down a bet. NOT equivalent to insuring anything. Rather, it's about taking risk and hoping they don't have to either payout huge sums of money or suffer prolonged public shaming in the event they lose the bet. For perspective, recall the Yarnell Hill fire. Somebody took a risk. 19 firefighters lost the bet.

In this case, the legislature bet they can keep our children safe even though they consistently (over the years) have declined to adequately fund the Department of Public Safety's fingerprint clearance card processing unit so that applicants can get their cards on a timely basis.

Shall we reflect back just a few days on the fact that more than 6,000 reports of child abuse or neglect were summarily ignored, swept under the rug? By the way, not long ago, the legislature privatized the CPS Hotline. How did that work out for Arizona taxpayers, not to mention children and their families?

Again, that's just a very brief example. How long would the list of travesties committed by the GOP controlled state legislature be, if anyone dared to commit enough reporting resources to compiling the evidence and publishing it? What would Arizona do if citizens were made aware? Would we let Gentala get away with claiming it's the Legislature's RIGHTS that the court needs to be concerned with?

How many of our children (posterity) will miss out on the blessings of liberty if we continue to allow the GOP to run state government on the cheap? If the legislature gets away with killing independent redistricting (in court), will you be able to tolerate the casualty list rising at an ever increasing rate?


* Note: the text of A.R.S. § 19-124(B) is,
Not later than sixty days preceding the regular primary election the legislative council, after providing reasonable opportunity for comments by all legislators, shall prepare and file with the secretary of state an impartial analysis of the provisions of each ballot proposal of a measure or proposed amendment. The analysis shall include a description of the measure and shall be written in clear and concise terms avoiding technical terms wherever possible. The analysis may contain background information, including the effect of the measure on existing law, or any legislative enactment suspended by referendum, if the measure or referendum is approved or rejected.


Here's what Tim Hogan had to say about Gentala's statement:
I don’t think the Supremacy Clause is relevant to our argument. Our claim is that the legislature lacks the capacity to file the lawsuit because of a provision in the Arizona Constitution i.e. the Voter Protection Act. The Supremacy Clause doesn’t and can’t tell states what powers must be conferred on state legislatures. In Arizona, we have constrained the power of the legislature when it comes to voter approved measures. In this case, the Supremacy Clause requires that the Elections Clause is the law in Arizona but that doesn't mean you don’t have to have the capacity to file a lawsuit to complain about it.


  1. The Arizona Supreme Court has already ruled that the AIRC is a legislative body, created by the voters (just as the Arizona Legislature was/is). Not to mention (I can't remember the exact case, but it was out of Washington regarding disclosure of funding for initiatives), the US Supreme Court has ruled that the voters are the Super Legislature of each state. So I find this whole argument by the Republicans of the Arizona Legislature (not the Democrats) of the supremacy of the Arizona Legislature over the voters of the Arizona to be rather disgusting.

  2. Steve,

    HB2317, which passed with overwhelming bi-partisan support (28-0 in the Senate,) did not endanger children, for two reasons:

    First, it did not help everyone with an expired card. To quote from the summary sheet, "Authorizes the use of expired fingerprint clearance cards with a signed affidavit from the holder of the card stating that:
    - The individual submitted a completed application to the division for a new fingerprint clearance card within ninety days before the expiration date on the individual’s current fingerprint clearance card; and
    - The individual is not awaiting trial on and has not been convicted of a criminal offense that would make the individual ineligible for a fingerprint clearance card.
    Excludes individuals who own fingerprint clearance cards that have been denied, suspended or revoked or a person who has requested a good cause exception hearing."

    And most importantly, everyone with a card, active or extended, who is in contact with kids has their name run daily to insure that they were not arrested for an offense that would not allow them to be in contact kids.

    In other words, while we extended the licenses, the holders were still being monitored to insure that they were not arrested for a crime that would preclude school employment.

    1. I read the bill and I read the fact sheet (one of the fact sheets, anyway). I don't dispute your summary of the bill.

      It's STILL the legislature laying down a bet, taking a risk. Many risks, actually.

      I'm not so concerned with the third read votes in either chamber. Those do not reflect alternative approaches to addressing the problem at hand, or consideration of long-term issues that have brought us to the current state of affairs.

      Is that process of cross checking the names of everyone with a card with arrest reports codified in statute? How do we know THAT has been adequately funded and that whatever IT programming written to accomplish that task actually works? How do we know it's actually being carried out daily? So many questions, so little time and space.

      Lastly, I cited that bill as only an example. The CPS situation -- inadequate funding to actually investigate an additional 6,000 plus reports of child abuse and neglect -- is both more tangible AND was more difficult for me to incorporate into this blog post. Not to mention that getting lost in a debate over the example is likely to distract a reader from the main point of the post.

  3. Steve,

    Regarding 2317, you were wrong. I just corrected the record and did not ascribe blame to you because the fact that the daily checks were still being done was not something anybody outside of the system would know. The honest response would have been to state that you did not know that the checks were still being done, that no kids were at risk and that you retract the part of your post regarding the effects of 2317.

    You should have done that instead of restating your erroneous conclusion, changing the subject, throwing up "smoke and mirrors" statements about codification, funding, etc. and questioning whether the checks are being done. I suspect that you realized that your excuses were shallow, which is why you ended with the "my error doesn't matter anyway" line of "Lastly, I cited that bill as only an example." Remember, I was not responding to your entire post but only to the 2317 comment.

    For a person who generally runs a factual and thoughtful blog, albeit liberal, your intellectually anemic response is surprising.

    1. Hear ye, hear ye, the omniscient Judge Kavanagh of the Arizona Debating Society, Fountain Hills chapter, has spoken. I bow to your authority.

      Now that we got that out of the way, I don't particularly welcome your false assessment.

      The "honest response" is posted above your most recent comment. Now you claim I am not honest simply because you don't provide any verification for your claim? That's not how it works, John. You may be offended that I challenged the claim, but that doesn't make me dishonest.

      For the record (in case you were not previously aware), I spent more than eight years working inside a state government agency. I know a little bit about bureaucracy, as do you, no doubt.

      My post, to which you replied, was about an overarching concept of which HB2317 was only one brief example.

      I respect, and certain understand, that you look at the situation differently. That does not make you the end all and be all in this case. It just means you look at the situation differently than I do.

      You may be a lawmaker and a committee chair who can act as God and declare all things Democratic to be null and void -- in your committee. But you're not a god here, thank you very much. And frankly, I don't care whether you think my response was anemic or anything else.

      Oh, and by the way, your comment demonstrates quite poignantly the GOP hubris about which my blog post was actually intended to portray.

  4. "Ad hominem attack" is defined by Merriam-Webster as "marked by or being an attack on an opponent's character rather than by an answer to the contentions made ." That is what the first part of your reply is.

    In addition, how can anyone discuss an issue with you if he or she has to produce affidavits from government employees affirming that they are doing what they are supposed to do and then you still say that is not enough proof?

    Finally, you use the word hubris too much. It loses it affect.

  5. Except that I didn't attack your character. I simply reflected on the tone of your pronouncement. You stated your objection to my response in terms that indicated you believed yourself to be the final arbiter of my honesty or lack thereof.

    That's not an attack on your character and certainly not a diversion from any point you made. It went directly to what you wrote. Therefore, I could (potentially) say that you were being dishonest by accusing me of making an ad hominem attack. I won't because I figure you honestly believed it was an attack on your character.

    Unless I can identify and make a reasonable inference as to a person's motive, I try to stay away from making any statement suggesting I know what's going on between that person's ears.

    As to your question, "how can anyone discuss an issue" with me, first my question had been whether the procedure you described was codified in statute. May I take your persistent evasiveness as an indication that it is NOT codified in statute?

    Next, I'm kind of scratching my head because of your expression of apparent frustration that I don't simply take your word for what you claim is done by an executive branch agency. Have you yet cited ANY back up to support your claim? Since you apparently did not, how can you make any inference as to what I would say in reply?

    In a previous exchange of comments, I recall you being quite specific that you do not believe a certain commission has properly submitted to legislative oversight, even though YOUR own auditors (the Arizona Auditor General being a legislative agency) have examined the procedures and records of the commission and reported to you thereon.

    On my use of the word "hubris," you might have a point. But did you take it seriously even the first time I used it? How is it not hubristic for you to demand I take your word that the bet you made (in HB2317) is based on anything you have verified, when you won't even take the word of your own auditors when you're the one doing the questioning?

  6. I will close out this string of communications by pasting the response I received from DPS on the authority for and frequency of the background checks. The response was:
    "We check the names of everyone with a card every 24 hours against in-state arrest records, and the statute generally allows us to do this check. Below is the specific language from ARS 41-1758.03(J) (similar language also in 41-1758.07). Note where it states "periodic" checks are permitted. If a person with a card is arrested for a disqualifying offense, the card is immediately suspended and we notify the employer (or licensing entity). I don't believe these real-time checks are a federal requirement, but I will double check on that."
    That said, I believe that a retraction of your comment about the legislature endangering children is now appropriate.

    Finally, the ethics of journalism and I assume you consider yourself a journalist, dictate that a journalist have verified information before leveling a serious charge against another. I should not have had to prove the legislature innocent. The assumption of guilt is bad policy in both law and journalism.

    1. And thus, even when you don't have the gavel, you act (AGAIN) like you believe you're the final arbiter.

      I'm thrilled that you take seriously what I write.

      But you're the one who said "the legislature endangering children," not me.

      From the blog post above, "In HB2317, our ELECTED lawmakers are rolling the dice, laying down a bet. NOT equivalent to insuring anything. Rather, it's about taking risk and hoping they don't have to either payout huge sums of money or suffer prolonged public shaming in the event they lose the bet."

      I appreciate the information you obtained from DPS. I'll update the blog post, to include links to the statutes you cited. But I have nothing to retract. The procedure is STILL a bet. You may have demonstrated that you try to minimize the risk in making that kind of bet, but it's still a bet.

      Reflecting back on our entire string of comments, your words reek of the hubris you took issue with me citing.

      Being an elected state representative does not make you God, John. Nor does owning the gavel for the House Appropriations committee. You're not the publisher here.

      You could use a huge dose of humility. Citizens like to see that in the people to whom they delegate their authority when they vote.

      As to "proving the legislature innocent," you absolutely indeed SHOULD have to answer to citizens -- far more than you ever are asked to -- for the decisions you collectively make. And frankly, I appreciate you expressing your displeasure at having to do so.