Arizona Eagletarian

Arizona Eagletarian

Friday, December 5, 2014

Redistricting -- Holes in the Harris plaintiffs' SCOTUS brief?

If somebody with no law school training, like me, can find what looks like huge holes in the arguments put forth by counsel for convicted felon Wes Harris and his merry band of co-plaintiff misfits, imagine what a genuine legal eagle-eye can do with it.

First, they repeat a worn out claim (on page 2 of the brief) that has held no water from the start.
Proponents of the measure creating the IRC claimed divesting Arizona’s legislature from the redistricting process and vesting sole reapportionment authority in the IRC would remove partisan interests from the redistricting process.
Variously, opponents of independent redistricting have also stated it as intended to "take the politics out of the process." Neither is true. Neither expectation is realistic. And neither characterization is at all reasonable or fair. Instead, independent redistricting puts authority where the Framers of the Constitution always ultimately intended, which reflects genuine legitimacy that resides in the People's sovereignty.

Indeed, from the start of the 2011 redistricting cycle, Republican partisan interests -- besides posturing the entire time for litigation -- were heavily active in politicking to intimidate and influence the commissioners and staff.

On page three, an example of hyperbolic rhetoric, "the IRC asks this Court to uphold its unequal legislative districts until the next reapportionment almost a decade from now." By the time oral arguments are held, no earlier than the last week in February 2015, four years will have passed since the current commissioners were sworn in and began their work. Six years hence is not "nearly a decade from now."

Thor then proclaims, without making an argument supporting it, that the population deviations were not the result of "traditional race-neutral districting criteria."
We agree the Equal Protection Clause affords some degree of minor deviation from strict mathematical equality when necessary to accommodate traditional race-neutral redistricting criteria. States may draw districts with minor population disparities so long as those districts will not “deprive any person of fair and effective representation in his state legislature.”
In other words, we reserve the right to do the same thing the IRC did when we get the opportunity to control the IRC (or when the legislature (fingers crossed) regains the authority to draw district maps). We just don't like them doing it. And because they claim they had a lawful purpose for doing so, we just want you guys to say they were wrong. This, naturally, then becomes an argument for allowing Republicans to more brazenly suppress minority voting rights at some indeterminate time in the future.

Next blatantly obvious breakdown in Thor's brief,
The district court offered only two justifications for the IRC’s unequal districts: partisan advantage and a perceived need to gain Justice Department preclearance. We show above (and in the Jurisdictional Statement) that it was not necessary, as a matter of fact or law, to have unequal districts to obtain Justice Department preclearance. This is so even if preclearance under §5 was still a valid consideration after Shelby County.
In arguing that the district court was wrong to rule in favor of the IRC, Thor says "We show above... that it was not necessary, as a matter of fact or law, to have unequal districts to obtain Justice Department preclearance." He really is only saying that he "showed above." That doesn't mean that his argument actually was a logically, rationally or legally sound showing thereof.
We are left with the IRC’s desire to achieve partisan advantage as the only remaining justification explaining why it unequally apportioned Arizona’s legislative districts. The district court correctly assumed partisan advantage was not a legitimate objective.
The IRC has denied that partisan advantage was a motive for creating districts with unequal population. But the district court ruling said that the appearance thereof exists anyway. And Thor says they "correctly assumed partisan advantage was not a legitimate objective." I don't think that's what the district court ruling said. Judge Wake alone suggested it was not a legitimate objective.
...after Shelby County, partisan advantage is the IRC’s only possible justification for adopting unequal legislative districts.
Well, the district court ruled otherwise, and did so after SCOTUS issued the Shelby County ruling.

Thor and friends are not saying, "the district court was wrong" and we'd like you, the Supremes, to reconsider. They are simply stating that because of Shelby County the IRC should have known it had to do the legislative district map over again.
That did not happen in Arizona, where the IRC’s redistricting scheme allows voters in Hispanic-plurality districts to wield significantly more political influence than those in non-Hispanic-White-plurality districts.
It may be beside the point (the point Thor wants to make, anyway) that Hispanic-plurality districts in the Arizona Legislature really do NOT wield "significantly more political influence than those in non-Hispanic-White-plurality districts." But this argument (by Harris and friends) has been shown (in posts on this blog) on more than one occasion to not really be factually correct.

The underlying foundation of the Harris argument is that overpopulating non-minority districts dilutes the voice of the voters in those non-minority districts. The fact remains that the voice of the minority voter is STILL subjugated and suppressed during legislative sessions.

Because of Shelby County, SCOTUS may not buy an argument suggesting minority voters' rights have been intentionally suppressed. That doesn't mean, however, that elected Republicans in Arizona aren't really still vigorously opposing minority voter rights.

Here's the kicker. This brief makes a technically correct but brazenly and intentionally false claim about the interests behind the lawsuit.
Individual Arizona voters who have been unequally treated are bringing this challenge under the one-person, one-vote principle and ask this Court to vindicate their right to equal protection. This case is not a challenge by a political party or group claiming the IRC’s redistricting scheme makes it more difficult to elect representatives of its choice in certain districts. (emphasis in original)
Why not, Thor won't be sworn to "tell the truth, the whole truth, and nothing but the truth," will he? He's not going before SCOTUS to testify, but rather to argue. Further, even though Thor wants to exercise a bit of rhetorical sleight-of-hand, right after the above passage, he invokes the Arizona Legislature's pending case before the same court from three different angles.

First, since he says "constitutional deference traditionally accorded a state legislature is not applicable where (as here) the redistricting was not done by the state legislature." Second, in the brief's conclusion, Thor asks the court to stay this appeal pending its decision in the Arizona Legislature case. And third, when they do decide the other case, they want the district court's ruling vacated and this case remanded to the district court for a do over.

Ultimately, if (and it's a big IF) having Wes Harris (previously convicted of aggravated assault with a firearm) win this case would have the end result of drawing legislative districts more competitively, as measured by electoral results, I'd be all for it. But until somebody figures out how to turn the key and get a higher Hispanic voter turnout, the most likely result might just be another iteration of a GOP supermajority in both chambers of the legislature.

For a multitude of reasons, that's not a good thing for Arizona.

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