Arizona Eagletarian

Arizona Eagletarian

Friday, January 24, 2014

Redistricting -- Oral Arguments on Motion to Dismiss; Supplemental Appropriation

This morning, counsel for the Arizona Legislature tried to convince a three-member panel of federal judges not to dismiss its lawsuit claiming the legislature has been harmed by Arizona voters.

Prop 106 amended the Arizona Constitution in 2000 to establish the Independent Redistricting Commission which first drew legislative and Congressional district maps in 2001. In so doing, the "rights" of the legislature were violated.

Peter Gentala, argued for the plaintiff (Arizona Legislature) that the suit was proper and timely. But he didn't get much more than a sentence or two out of his mouth before Judge Murray Snow started peppering Gentala with questions. From the start, Snow seemed most skeptical of the legislature's claims.

Snow asked if the legislature had asked Congress to not seat the delegates who had been elected according to the AIRC map in 2012. Of course, the legislature did not. Such a brash position would have been awfully controversial.

Judge Mary Schroeder asked Gentala if he knows of a case where a legislature has gone to court to say they don't want to follow the law of the state. He responded that he did not know of any such case.

One of the judges asked, "how was the legislature harmed" by the Congressional district map? Wouldn't it have been special if Gentala had candidly admitted that the legislature just plain didn't like having the three competitive districts? Of course, each was won by a Democrat. That was the bottom line, wasn't it?

The judges tried to elicit a response from Gentala as to how the legislature had been "excluded from the [redistricting] process." Of course, they have NOT been excluded from the process, as legislative leadership selects commissioners for appointment, and the entire body reviews the draft maps and makes recommendations for adjustments to draft maps.

Gentala pointed out that the pool of eligible candidates was limited by the screening process conducted by the Appellate Court Commission on Appointments. In other words, the legislature doesn't like that it is prohibited from appointing someone like now convicted felon John Mills. Oh, and the redistricting commission did not make one single adjustment to the maps that the legislature wanted it to make. Poor babies.

On the issue of whether the legislature was "excluded from the process," Brown v the Secretary of State of Florida came up. The 11th Circuit Court of Appeals ruled on the matter in 2012.
At issue today is whether a state constitutional provision establishing standards for congressional redistricting that was approved by the people by initiative is contrary to the Elections Clause of the United States Constitution. Article I, Section 4 of the United States Constitution provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Appellants Corrine Brown and Mario Diaz-Balart, members of the United States House of Representatives, along with the Florida House of Representatives, appeal from a district court order granting final summary judgment to the appellees, the Florida Secretary of State and various intervening parties. The appellants claim that Amendment Six is unconstitutional because it was enacted by citizen initiative rather than by the state’s legislature in the ordinary “legislative process.” Moreover, they say that Amendment Six -- even if properly enacted pursuant to Florida’s legislative process -- imposes substantive requirements that far exceed the state legislature’s Elections Clause power.
We are unpersuaded... 
One judge mentioned (Davis v) Hildebrant, a 1916 case where the people of Ohio had used referendum power to veto a map drawn by the state legislature.
Nothing in the act of Congress of August 8, 1911, 37 Stat. 13, apportioning representation among the states, prevents the people of a state from reserving a right of approval or disapproval by referendum of a state act redistricting the state for the purpose of congressional elections.
Please pardon me for not going back and finding the links from my earlier coverage of the redistricting process to refresh readers today about the Appellate Court Commission, John Mills, the language in Prop106 and so on.

For a good summary write up (without some of the details on questions asked by the judges) of today's oral argument hearing,  check out the story Capitol Media Services' Howard Fischer posted to the East Valley Tribune. Fischer noting at the end,
Judge Paul Rosenblatt, who presided over the three-judge panel, said he realizes that time is running out to affect the 2014 election and promised a ruling as soon as possible.
However, we should note that in the Harris case -- the trial for which wrapped up nearly 10 months ago -- that three-judge panel pretty much said the same thing at the end of March 2013.

So, we will hear about the outcome in this case, when we hear it. But I will be very surprised if the legislature gets to waste any more taxpayer money on this particular lawsuit.

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On another note, today House Majority Leader David Gowan (R-LD14/Sierra Vista) introduced HB2492, a supplemental appropriation to the AIRC for $1,462,701 for the current fiscal year. Of course, a lot of factors could effect whether this amount will be sufficient to get the commission through June with the ability to pay its bills.

Among those factors, whether the AIRC will be required to make any changes to the legislative district map and how much more involved the Leach case will get. We still have no trial date set in Leach. One of the lead attorneys in Leach, Mike Liburdi, attended today's hearing in the legislature's lawsuit, apparently not caught up in urgency on his case, which also, theoretically could impact the Congressional district map.

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By the way, just this week I obtained the legislature's response to the amicus brief filed by citizen groups and two co-authors of Prop 106 and the legislature's response to the second AIRC motion to dismiss -- both documents related to the legislature's lawsuit against the AIRC.

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