Arizona Eagletarian

Arizona Eagletarian

Saturday, May 3, 2014

Redistricting -- Judge Silver's opinion on the Harris case

In her 16-page opinion concurring with the per curium decision and order in the Harris case, Judge Roslyn O. Silver lays out her view of how the plaintiffs (Cantelme) failed to make the case they said they would make that the Arizona Independent Redistricting Commission had, solely and exclusively for unlawfully partisan purposes, diluted the vote of Arizona Republicans in establishing the legislative district map in 2012.

In a section she titled, The Alleged Plot Failed, Silver wrote:
Before directly addressing why I believe plaintiffs failed to prove their case, it is worth noting that the 2012 election using the new map proved their theory has no basis in reality. In the 2012 elections, Republicans won 17 out of 30 (56.6%) senate seats and 36 out of 60 (60%) house seats. As of June 2012, Republicans had a statewide two party registration share of 54.4%. Thus, under the map plaintiffs believe was created to systematically harm Republican electoral chances, Republicans are overrepresented in the legislature. (emphasis added)
Before that, Silver notes, in multiple ways,
By the time of trial, plaintiffs were again describing their claim as grounded on a belief that partisanship was the “sole” explanation for the population deviations. [...]
Plaintiffs repeatedly stated they would establish partisanship as the actual and sole reason for the population deviations and we adopted that as the standard plaintiffs needed to meet. I believe that remains the appropriate standard.
As reported in the Arizona Eagletarian shortly after the trial completed,
The following are disputed questions of fact to be tried:
1. Whether the IRC’s sole reason for the population deviation was partisan advantage and other asserted reasons were pretextual or not in good faith. [...]
I firmly believe that plaintiffs failed to make their case on any of these questions of fact.
More regarding the failed plot:
But it is hard to take plaintiffs’ challenge seriously given that the alleged contrivance against Republicans failed. See Adam Raviv, Unsafe Harbors: One Person, One Vote and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1062 (2005) [Page 12, note 71] (“And certainly it makes sense not to overturn a plan that, whatever the intent of the planners, did not actually hurt their political opponents.”). [...]
Turning to the merits of plaintiffs’ claim, the evidence is overwhelming the final map was a product of the commissioners’s consideration of appropriate redistricting criteria. In particular, the commissioners were concerned with obtaining preclearance on their first attempt. [...]
In fact, it is not even clear whether plaintiffs contend the draft map was the result of partisanship. But if partisanship actually were at the heart of the draft map, and assuming the Republican commissioners were not Democratic sleeper-agents, one would expect the record to be replete with objections by the Republican commissioners. It is not. [...]
Again, the vast majority of the changes to the draft map were agreed to by the Republican commissioners. And as observed by Commissioner Mathis, all of the commissioners are “very strong people” who would have spoken up if they had an objection. I do not believe we are in a better position to divine invidious discrimination than the partisan actors actually involved in the process. [...]
Much more important than the relative lack of objections is that plaintiffs did not identify, with reasonable particularity, the exact changes to the final map they believe were due solely to partisanship. Plaintiffs initially seemed to be claiming every aspect of the final map was due to partisanship. However, at trial and in their post-trial briefing, they focused primarily on three districts: Districts 8, 24, and 26... As for District 8, the per curiam opinion concludes partisanship did motivate certain changes. At trial, however, Commissioner McNulty explained those changes were meant to make District 8 more competitive. I found her explanation reasonable and credible... More importantly, even if Commissioner McNulty did make changes to District 8 with partisanship in mind, that is not enough.
Evidence that one commissioner was motivated by partisanship is only a good starting point and it is a given that four of the five commissioners always have at least some partisan self-interest. There must be evidence that two other commissioners had that same motivation... I saw no such evidence.
In the end, Plaintiffs’ evidence of partisanship consisted largely of pointing to the final map and asking the Court to conclude by inference only that the pattern reflected in the map established an intent to discriminate against Republicans. [...]
The final map represents an attempt to satisfy legitimate redistricting criteria, especially the Voting Rights Act. As observed in the per curiam opinion, “changes that strengthened minority ability-to-elect districts were also changes that improved the prospects for electing Democratic candidates.” In other words, the changes the Commission made to strengthen its case for complying with the Voting Rights Act also had the effect of improving Democratic prospects. In light of this, the alleged pattern in the final map easily is explainable on grounds other than partisanship.

Obviously, I didn't include every salient point in posting excerpts from Judge Silver's opinion. So, by all means feast your eyes and your mind on it for yourself if you want to know more.

I, and at least some other interested parties have been operating under the assumption that Cantelme would certainly appeal to the Supreme Court. The Arizona Republic write up on the Harris decision says, however,
David Cantelme, who represented the plaintiffs, said attorneys are studying the opinion and will decide later if they will appeal. Any appeal would go directly to the U.S. Supreme Court.
"We are heartened that two judges out of three found partisanship was a motivation," Cantelme said. But one of the two concluded it was not a primary motivation, thus denying plaintiffs the win they sought. 
With how clear and specific Silver's opinion is in parsing the issue of partisanship, Cantelme (and his Dark Money funders) may actually have second thoughts. Then again, I still think an appeal to the Supreme Court is likely.

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