Arizona Eagletarian

Arizona Eagletarian

Monday, March 2, 2015

The Day finally arrived, Oral Arrrrg...uments in GOP state lawmakers vs Arizona Voters

Where to begin... a fine dilemma to have. It may take me a few posts to get across all I want to convey, but I'll get it done little by little.

The first thing I should tell you is the story of how I got my reserved seat in the gallery today.

I've been planning this trip for months. All along, I've known that I had to be there for the arguments. I pestered IRC counsel for months trying to get the OA hearing date information... as if that could help expedite the scheduling. Once the date was certain, I had to raise funds, make flight and hotel arrangements.

Almost OCD like behavior had me checking flight schedules and fares online for weeks. Then I had to make sure I could get a seat to observe. The general public has to wait in a line outside the court building hoping there will be a seat after they get through security. That's too much uncertainty when my friends are going to pay so much for me to get to go.

Initially, I thought to write a letter to Notorius RBG (Justice Ruth Bader Ginsberg), including a photograph with me wearing my shirt with RBG's pic on it. I paid the priority mail rate (about $7) and began tracking the progress of the letter at It was supposed to only take two days to get there but it didn't even leave Phoenix for three days. So, I got a refund from the Postal Service (of the difference between Priority and First Class). A couple of weeks go by and no response.

In the meantime, a friend with connections in DC asked another friend to help me make the arrangements, also to no avail.

Then at the February meeting of LD26 Democrats, I told ASU Prof. Dave Wells about my frustration. He suggested I contact Goldwater Institute lawyer Clint Bolick. Wells said Bolick had connections with Justice Clarence Thomas and might be able to help.
Since Clint and I are friends on FB (I first met him more than a dozen years ago when he first came to AZ to work for Libertarian public interest law firm Institute for Justice; at the time, I worked at the Arizona Capitol Times). So, I sent a note to Clint, who replied with the phone number for Thomas' chambers at the Supreme Court. I called and after answering a couple of questions, Thomas' staffer called the Court marshall and got my name put on the list. I then told Clint how it played out and thanked him enthusiastically.

To keep from having anyone throw a monkey wrench into the works, I told very few people how I made the arrangements... and promised others I would tell this story after the hearing.

I did get to say hello to Republican IRC commissioner Rick Stertz this morning as we were leaving the court, but didn't talk with Andy Biggshot, Andy Toxin, current Speaker David Gowan or Republican IRC commissioner Scott Freeman. Of course, Biggshot would NEVER in a million years think to try to mess up my reservation for a seat. Not with him being so damned sensitive that he had me thrown out of a legislative hearing three years ago simply for moving my lips without any sound coming out.

Because others have more experience than I do covering the Supreme Court, I'll provide excerpts of a few of those write ups, to give you the nuts and bolts of what was said, by whom.

We were ushered into the gallery quite systematically and orderly, after going through security screening and stowing phones and cameras in lockers (for which they charge a quarter to use... lockers like at bus stations or airports). None of it was rushed. But once in seats, (about 35-40 minutes before the curtain went up... er, the gavel went down) we had to sit (mostly) quietly. I looked around to take in the surroundings and see who I could recognize.

In the row in front of me, (I was on the far right end of the fifth row of the gallery), just a bit to my left, was Ray Bladine, his grandson Drew, Chris and Colleen Mathis, Kristina Gomez and Strategic Telemetry's Willie Desmond. Almost directly in front of Ray (only one row in front of him) was Andy Biggshot. Made eye contact with him only very briefly, no words, handshakes or lip reading was exchanged.

Everything about the courtroom is majestic. Nothing cheap about any of it. Marble columns, eight of them in four rows of two, on each side of the courtroom and four more columns in front, behind the nine justices and behind that set of columns, a huge red curtain. At the top of the columns sit what looks like sculpted marble with what appears to be characters from mythology or someone's interpretation of biblical stories.

A good 50 ft up, the ceiling is also quite ornate, with painted, 3-D patterns that could represent flowers.

photo courtesy of

A transcript, provided by a court reporter, is already posted.

If things proceed as usual, the court website will have an audio recording posted on Friday this week.

In the meantime, Michael Doyle, with McClatchyDC reported:
— Supreme Court justices raised tough questions Monday about Arizona’s use of an independent commission to draw legislative maps, in a case crucial for political operators and reformers in California and beyond.
Conservative justices, in particular, sounded skeptical about independent redistricting commissions that effectively leave state legislators in the lurch.
“It’s giving the power to an unelected body of five people,” said Justice Antonin Scalia, the most persistent of the critics.
But in a hint of a divided court and a close decision to come, several customarily liberal justices voiced more sympathy for Arizona’s use of a general election ballot measure to establish a redistricting system.
“A lot of respect, a lot of deference, has to be given to the states,” cautioned Justice Elena Kagan.

Read more here:
Lyle Denniston, writing for SCOTUSBlog, headlines an argument analysis thus:
Argument analysis: Literalism vs. the power of the people
The headline sounds promising, right? I mean if that's what it boils down to, then how could they possibly rule in favor of a legislature that hates the voters in its state? Then the story lede goes like this (not so promising):
The Supreme Court strongly believes that states need wide authority to experiment with the ways they govern themselves, but they found on Monday that this may run afoul of the Constitution, if that document is understood literally.  What seemed like a majority shied away from the idea that the voters of a state could seize power away from their legislature, and lodge that authority elsewhere in government more pleasing to the people.
As one reader I chatted with this afternoon put it, "it's scary." Well, yeah. Except that just like the legislature which has been counting its chickens before they hatch, Mr. Denniston says "The Supreme Court strongly believes..." and "they found on Monday that this may run afoul of the Constitution..."

First off, to me, that seems intentionally inflammatory. To say that the Court "found" anything today is misleading. "Findings" are conclusions. For example, an excerpt from Federal Rules of Procedure (not intended to examine the conduct of the SCOTUS, just to give an example of how the word "found" or "findings" is used.
(a) Findings and Conclusions. (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.
In other words, we will not know what the Supreme Court found and concluded until it releases it's opinion, likely in June this year.

In related news, after the hearing, I found a few people, said hello and took some cool pics.

Andy Toxin in the blue striped tie (I hope that's good luck for the BLUE team) and his attorney Paul Clement (far right).

IRC amici and one of the drafters of Prop 106, Bart Turner (middle) with Arizona attorney Andy Gordon (left) and IRC counsel Joe Kanefield (right).

IRC executive director Ray Bladine and his grandson Drew. What a wonderful opportunity for a 15-year old to sit in on a SCOTUS hearing. I bet he gets extra credit for civics class for this.

Andrew Dreschler and Willie Desmond from IRC mapping contractor Strategic Telemetry.

IRC chair Colleen Mathis and her husband Chris (right) talk with IRC counsel Seth P. Waxman.

Democratic IRC commissioner Cid Kallen with his wife.

Kathay Feng, executive director of Common Cause California. Feng was a driving force behind California's initiative to implement independent redistricting. She also is listed as counsel for Common Cause Illinois, an amici in the Illinois amicus brief filed in January.

NPR's Nina Totenberg interviewing IRC counsel Mary O'Grady with Ray Bladine.

Additionally, filed while I was working on this post, Ian Millhiser with Think Progress, posted his analysis which suggests the GOP will come to regret this case.
WASHINGTON, DC — It is not at all clear how the Supreme Court will decide Arizona State Legislature v. Arizona Independent Redistricting Commission, a lawsuit brought by the state’s GOP-controlled legislature which challenges an independent commission in Arizona that draws the state’s congressional maps. Though most of the justices appeared likely to vote along party lines, Republican Justice Anthony Kennedy and, at times, Democratic Justice Stephen Breyer asked questions indicating that their votes may be in play.
One thing that did emerge from Monday’s oral argument, however, is that if the Republicans behind this lawsuit prevail, they may come to regret that victory. [...]
The most interesting question, however, came from Kennedy: what about voter ID ballot initiatives and other voter-enacted laws which bypassed the legislature entirely to change a state’s election law? If the Constitution reserves the power to set the “times, places and manner of holding elections for Senators and Representatives” to elected lawmakers, then initiatives such as Mississippi’s voter ID amendment are unconstitutional.
Justice Kagan leaped on this question almost as soon as Kennedy asked it, noting that there are numerous examples of state election laws enacted by voter initiative. “In none of those laws,” she noted, “is there legislative control.” [...]
Justice Stephen Breyer also may have given Waxman a bit of a scare when he disagreed with the lawyer’s claim that past cases dealing with popular and gubernatorial vetoes support Waxman’s argument. Yet, when Clement retook the podium and tried to capitalize on Breyer’s remarks, the justice responded that those cases help Clement even less. Breyer’s vote, in other words, may also be in play. It is possible that Clement could win his case with as many as six votes, or Waxman could win with five.
Should Clement prevail, however, it could be a Pyrrhic victory for the Republican Party. They may win the right to gerrymander Arizona’s congressional districts, only to lose voter ID laws and similar efforts at voter suppression enacted via initiative.
All in all, an exciting day and no doubt an historic case. Despite the human tendency to want to know as soon as possible how the court will rule, this is not a done deal.


  1. Steve, Thanks for getting there and continuing to report on this issue. I think I'll wait for the audio recording on Friday or later. I'll keep checking the Arizona Eagletarian daily to read your additional posts on this topic. Keep up the good work.

  2. Thank you Steve for being (likely) the only person from AZ who did not have their way paid by some other organization already (except maybe the 15 year old). Your persistence paid off.....Interesting to have the back story on your reserved seat. Looking forward to reading more of your thoughts and also will read more on .....