Arizona Eagletarian

Arizona Eagletarian

Wednesday, September 23, 2015

Redistricting -- Amicus brief for Harris case

Comes now the Southern Coalition for Social Justice, in North Carolina, to brief the Supremes on the reverse discrimination case brought by Republican interests in Arizona.

Harris et. al. have claimed that the Arizona Independent Redistricting Commission favored Democrats for partisan purposes when drawing the legislative district map now in use. Earlier in the month, our extremely partisan Secretary of State Michele Reagan filed a brief echoing the Harris arguments.

As we know, and have rehashed several times, IF the AIRC actually did intend a partisan benefit to the Democratic Party, they failed miserably. Nevertheless, the SCSJ argues (claiming support for neither side) that they are concerned about the one man, one vote principle. That seems entirely reasonable. In North Carolina, they deal with a whole lot of racial and partisan gerrymandering.

Perhaps SCSJ sees a paradox similar in this lawsuit to one in the recently resolved Arizona Legislature case. In that lawsuit, a win for the AZ lege would have given Republicans a dramatically increased advantage in redrawing Congressional districts to eliminate competitiveness. Fair expectations were that Arizona's First and Ninth Congressional districts would have been redrawn to disenfranchise Democratic voters. In which case, California's legislature, which would have benefited also from an AZ Lege win, is controlled by the Democratic Party. Many observers expected the California legislature to redraw its Congressional map to increase Democratic seats, in such a scenario.

If Harris wins this one, Democratic and minority voters will be disenfranchised further. But it seems like SCSJ figures a Harris win could protect North Carolina from more egregious disenfranchisement of Black and Democratic voters.

Here's the conclusion to this latest brief,
For the reasons articulated above, and in order to ensure that federal law continues to protect the individual rights of voters from arbitrary and discriminatory devaluing of their votes, amicus respectfully requests that the Court hold that partisan considerations do not justify larger than necessary population deviations among districts.
The conclusion is as disturbingly vague to me as the declaration at the beginning that SCSJ was not taking sides.
This brief is submitted on behalf of the Southern Coalition for Social Justice (“SCSJ”) amicus curiae in support of neither party.
However, the argument itself, as summarized below, belies the fact that SCSJ is looking out for North Carolina interests at the expense of the interests of those in Arizona who have been disenfranchised by the Republican-dominated one-party system in our state.

Summary of the argument as set forth,
The one person, one vote rule for legislative redistricting emerged to ensure “the substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the state.” Reynolds, 377 U.S. at 579. An exception to this rule to accommodate partisan gamesmanship is directly counter to its purpose and role in guaranteeing equal protection. 
This Court’s one person, one vote mandate, derived from the Fourteenth Amendment, is based on the recognition that “[c]itizens, not history or economic interests, cast votes.” Reynolds, 377 U.S. at 580. Nowhere—whether in Reynolds; Roman v. Sincock, 377 U.S. 695 (1964); or their progeny—has this Court taken the drastic step of recognizing advancement of political party interests as a legitimate justification for substantial population disparities among districts. While the application of non-arbitrary, traditional redistricting principles may result in deviations from absolute population equality, discrimination based on political party is an inappropriate method of determining the weight of a citizen’s vote. See Abate v. Mundt, 403 U.S. 182, 185 (1971); Karcher v. Daggett, 462 U.S. 725, 740 (1983).
Holding that a benefit to one political party over another is a legitimate justification for population deviations, particularly in mid-decade redistricting, would have a far-reaching impact in communities that have traditionally faced significant barriers to equality in voting. See Rodriguez v. Harris County, 964 F. Supp. 2d 686, 804 (S.D. Tex. 2013) (“While some . . . imagine that barriers to voting have been eradicated, the record here is replete with evidence to the contrary.”) (internal citations omitted). The last few years have seen a spate of legislative attempts to use an alleged “safe harbor” with respect to population deviations to enact districts that otherwise disadvantage voters who do not support the party in control of the legislature.
One example in North Carolina is the General Assembly’s passage of a local redistricting bill that expanded the Wake County Commission from seven to nine members, and changed the seven members elected to staggered terms at-large with residence districts to seven members elected from single-member districts and two members elected from “super districts” with total population deviations of 9.8%. The local bill, which took away the power of the local government body to determine its own boundaries until after the 2020 Census, was passed only after Democrats carried all of the open seats in the 2014 election. The newly adopted redistricting plan is marked by significant population deviations and bizarre-shaped districts that are not geographically compact, and was created to disadvantage voters who have traditionally voted Democratic. “The population deviations in the new district system are a deliberate and systematic attempt . . . to unfairly manipulate the political process to give greater weight to the votes of Republican voters and less weight to the votes of Democratic voters.” Holding that manipulating population deviations to discriminate against voters of a particular political party is a legitimate governmental interest would strike a fatal blow to fundamental fairness and the opportunity of all voters to participate equally in the political process.
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Without going into detailed analysis of the actual argument (as set forth between the summary and conclusion), it appears that SCSJ is freaked out about what they think the AIRC did with the legislative map. That fear appears to be based primarily on the arguments made by David Cantelme, which Judge Wake, in his dissenting opinion from the district court trial suggested and which the final determination alluded to (i.e., that the AIRC may have had partisan motive in part) but suggested that if that were the case, it was not a material or overriding consideration.

From the final majority decision in Harris from the trial court,
Because we conclude that the redistricting plan here does not violate the Fourteenth Amendment whether or not partisanship is a legitimate redistricting policy, we need not resolve the question. For the purposes of this opinion, we assume, without deciding, that partisanship is not a valid justification for departing from perfect population equality.
Judge Roslyn O. Silver wrote in her (not dissenting) opinion that if, indeed, the AIRC had intended to bestow partisan advantage on the Democratic Party, they failed.
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.
Perhaps SCSJ is simply practicing a tightrope stunt.



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* The link for Adam Raviv's law journal article appears to be to a different, but related article. The actual link to Raviv's piece is:    http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1320&context=jcl

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