Arizona Eagletarian

Arizona Eagletarian

Friday, July 31, 2015

Has a Redistricting Commissioner been taking Iron(y) Supplements

As previously reported, the Arizona Independent Redistricting Commission met on Tuesday to select additional counsel for the Harris lawsuit for SCOTUS representation, with briefings to be filed and oral arguments held this fall or winter.

Despite Vice-Chair Scott Freeman's claim to the contrary, and despite the unanimous 5-0 vote to accept the pro bono proposal of Jenner & Block's Paul Smith to represent the AIRC, there were sparks flying during the meeting.

Freeman explained his AYE vote, ironically declaring his intention to "spare everyone the drama" from last time when he voted NAY on the decision to work with Seth Waxman in the Arizona Legislature case.
I would have done the same here, with the same provisos but not knowing whether there would be three votes to retain the Jenner Block firm, I voted yes to spare everyone the drama and the trouble and I'd like to add that I'm kinda disappointed, but perhaps not surprised that one of the commissioners [Colleen Mathis] participated in deliberations on retention of Supreme Court counsel despite the fact that the commissioner had a relationship with one of the lawyers being considered. That may not be a true pecuniary conflict of interest under state law, but certainly under the provision of the Arizona Constitution that established this commission, commissioners are supposed to conduct themselves in ways that build confidence in the redistricting process, and to be open and honest and make full disclosures and perhaps it violated the spirit of that constitutional provision. 
That he made the statement itself is ironic on more than one level, which I'll get into in a moment. IF, Freeman wanted to vote NAY on Jenner & Block, since there was nobody calling roll, all Scott had to do was wait until the other four commissioners had vocalized their AYE votes and then cast his opposing vote last. Scott's a bright guy. Not only was Freeman apparently unaware of the irony in his statement, but it seems quite obviously disingenuous.

The Yellow Sheet (July 29) reported the incident with additional comments by Freeman after the meeting.
After the meeting, Freeman registered his disappointment that Mathis had participated in the discussion. “I’m kind of disappointed, but perhaps not surprised, that one of the commissioners participated in the deliberations on retention of Supreme Court counsel, despite the fact that the commissioner had a relationship with one of the lawyers being considered,” he said, adding that commissioners should conduct themselves in a way that builds confidence in the redistricting process.
The vote to retain Jenner & Block was unanimous, but Freeman quickly expressed regret that he’d voted in favor, saying he only did so because he wasn’t sure there would be three votes against Smith’s firm. “I voted yes to spare everyone drama and the trouble,” he said. Freeman told our reporter today that he was concerned that, if he and Stertz both lodged protest votes against the outside counsel, as they did last year when the IRC voted to retain former US Solicitor General Seth Waxman (he said he didn’t want a ‘yes’ vote to be interpreted as support for the IRC’s actions), Mathis might have voted against Jenner & Block, throwing the process into chaos and perhaps leading to the retention of Elwood.
Freeman noted that Elwood and Mathis are lifelong friends, pointing to a July 9 article in the Peoria (Ill.) Star Journal about the two of them and their trip to the US Supreme Court for the redistricting arguments in March. Freeman suggested that Mathis should have recused herself, or at least asked IRC counsel and her fellow commissioners to weigh in on the issue. “Sure, she’s not getting a kickback from the guy. But, gee, it’s a high-profile case,” he said. Mathis, who attended Tuesday’s meeting via teleconference, did not return a call from our reporter.
Yellow Sheet readers may want to note that the report's quotes from Freeman, IF they were indeed from after the meeting, were verbatim the same as what he said on the record, during the meeting. It may or may not be a substantive error by the Yellow Sheet, but if that publication wants to consistently validate its bona fides, it may want to be concerned about accuracy. It sometimes seems like just a careless blog (wink, wink). But they sure do make a lot of money on it.

Anyway, Mathis DID disclose her relationship, on the record, during that meeting. The attorney she knows, John Elwood, apparently graduated from the same high school as both Colleen and her husband Chris in Peoria, Illinois. On July 9, 2015, the Peoria Journal Star reported on the relationship.
PEORIA — It’s a place that Colleen Coyle Mathis never thought she’d be. But a few months ago, she was front and center when the U.S. Supreme Court heard arguments why the Arizona redistricting commission she heads should remain in place.
Mathis, 47, chairs the Arizona Independent Redistricting Commission which was party to a lawsuit brought by state lawmakers there. The question before the high court: Is it legal for a commission to draw voting districts or is that only the power of state lawmakers? [...]
The experience was made even more special by having a close friend, fellow Central graduate, John Elwood, write a friend of the court brief.
“In a way, having John involved and writing an amicus brief, I was comforted by that. I know him pretty well and he’s an excellent lawyer and a Supreme Court specialist,” Mathis said. “I was honored that he was willing to write an important amicus brief for us.”
Elwood, who graduated a year later than his friend, also was enthused about the experience. While he’s argued nine cases before the Supreme Court and written some 30 briefs in support of various cases, it was different this time.
“When you have known someone that long, you don’t say no,” he said recently, while drinking a cup of coffee at a Downtown java joint. They have kept in touch since high school as Elwood’s buddy back in school, Christopher Mathis, married her.
 From Elwood's law firm (Vinson & Elkins) bio,
John, a partner in the firm’s Appellate practice group, has argued nine cases before the Supreme Court of the United States, and argued before most federal courts of appeals. He has briefed and argued cases in “a broad cross-section of areas” (Chambers USA, 2013), and has particular experience in the areas of environmental law, the False Claims Act, administrative law, government contracting, and federal criminal law.
John’s work has earned him recognition as one of Washington’s top Supreme Court lawyers (Washingtonian, 2013), as one of “a small group of lawyers” with an “outsized influence at the U.S. Supreme Court” (Reuters, 2014), and as one of the country’s most innovative lawyers (Financial Times, 2014). Chambers USA reports that “[t]he much-admired John Elwood is praised for his advocacy skills” (2013), and describes John as “phenomenal” (2014), “incredibly talented” (2012), and “a much-loved and widely respected lawyer who is quick on his feet” (2010). 
By the way, Paul Smith, who was selected this week to represent the AIRC pro bono, also wrote an amicus brief in Arizona Legislature.

The bigger irony appears to be in Freeman's declared intent (quoted above, about how commissioners conduct themselves). On June 30, immediately after his commission won a long and hard fought victory from SCOTUS in Arizona Legislature, the Arizona Republic published an op-ed under Freeman's byline. That column represents Freeman's shameless effort (conduct) to UNDERMINE the public confidence in the AIRC.
The U.S. Supreme Court has upheld Arizona's scheme through which an independent redistricting commission conducts congressional redistricting.
The Arizona Legislature had challenged the commission's authority, arguing that the framers assigned the task of congressional redistricting to "the legislature" of each state in the elections clause of the U.S. Constitution. But five justices have now construed the term "the legislature" to mean something unknown to the framers: an unelected, unaccountable, "independent" commission created by voter initiative.
The SCOTUS opinion penned by Justice Ginsberg directly contradicts Freeman's outrageous claims about what the Framers did or did not know. An excerpt from the Ginsberg's opinion,
There were obvious precursors or analogues to the direct lawmaking operative today in several States, notably, New England’s town hall meetings and the submission of early state constitutions to the people for ratification. 
And the barbs Freeman tossed out later in his op-ed were no more credible than being simply statements of his bitter viewpoint. His characterizations of litigation outcomes are just wrong.
Proponents argue that commission-based redistricting schemes like the one Arizona created in 2000 take the politics out of redistricting, eliminate partisanship and self-interest, and add transparency and competitiveness. Arizona's initiative created a five-member commission with safeguards designed to keep it politically balanced, independent and open, and with clear instructions on how to draw the maps.
The new system seemed to work in 2001, with the commission approving bipartisan maps. But the 2011 redistricting was a fiasco. What went wrong? Plenty.
Every vote of significance was the same 3-2 partisan split.
Commissioners secretly discussed hiring a Democratic data-mining company as the commission's mapping consultant, rendering the procurement process a sham.
Subsequent litigation revealed that a commissioner custom-designed districts outside of public meetings with the "assistance" of an Arizona Democratic Party representative who had a direct link to the mapping consultant's server.
Besides the fact that Freeman misrepresents the "spirit and intent" of the decisions in the "subsequent litigation," his characterizations are based on his long known intent to undermine the legitimacy of the commission. By the way, I have stated on more than one occasion that the intent of independent redistricting is NOT to eliminate partisanship but rather to eliminate the blatant conflicts of interest elected legislatures, by definition, have when they draw district lines for their own chambers or for Congress.

In his screed (for the record, transcribed above, and in his remarks to the Yellow Sheet reporter), it seems he's oblivious to the irony with which he spoke this week, as shown by his conduct over the last couple of years as a commissioner who took an oath to uphold the Constitutions of both the United States AND Arizona.

I'd love to also get into the conflict of interest laws and rules that apply here, as Freeman so shamelessly tried to implicate Mathis for violating the spirit thereof, but will save it for another day.

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