Arizona Eagletarian

Arizona Eagletarian

Tuesday, December 8, 2015

Redistricting -- Leach and Harris lawsuits -- UPDATED 6:40 pm MST 12-9-15

Last Friday in Maricopa County Superior Court, Judge Roger Brodman heard arguments on whether or not to issue protective orders preventing Redistricting Commissioners, staff and contractors from having to sit for fishing expedition depositions by the attorneys for LD11 state Rep. Vince Leach and his merry band of misfits.

The question was whether previous depositions (for the Harris trial in 2013) were adequate and whether or not Legislative Privilege would shield anyone from having to answer questions from opposition counsel. Reportedly, Brodman promised a ruling on the question by today (Tuesday).

Word has it (I haven't seen anything in writing yet) that the decision is to require the depositions and face the question of Legislative Privilege on a question by question basis.

Because the person I spoke with was on a plane getting ready for take off en route back home from DC, I wasn't able to ask additional questions. I expect to get more specific information on Wednesday.

UPDATE 6:40pm -- Judge Brodman issued minute entry on Monday to schedule a trial schedule setting teleconference for AUGUST 19, 2016 in Leach. No new details yet in writing about the fishing expedition the plaintiffs want to conduct.


Finally, the Supreme Court heard arguments in the Harris case. As expected, several sources have reported on the OA.

Scotusblog's Amy Howe's analysis leads by quoting AIRC counsel Paul Smith,
“Where’s the beef?”  That was the question from Washington attorney Paul Smith, arguing at the Court today on behalf of the five-member independent commission charged with drawing new state legislative maps for Arizona.
The pop culture (or citation from an old fast food marketing campaign) reference put the Harris argument in perspective, as Princeton Professor Sam Wang had pointed out in an amicus brief that from a mathematical/statistical perspective, the Republican plaintiffs cannot demonstrate that their votes were diluted.

USA Today reporter Richard Wolf wrote, after opening by surmising the court is unlikely to rule against the IRC,
...justices on both sides of the ideological divide said the five-member panel tried to draw enough districts capable of electing minorities, and that was sufficient reason to have population variations approaching 10% -- even though the court later struck down the federal rule the commission was following.
"The pre-clearance process at the Department of Justice is famously opaque," Chief Justice John Roberts said in reference to the provision his ruling eviscerated in 2013. As for any political influence, he added, "Where is the district in which, ­­or the state in which, partisanship does not play a role in redistricting?"
Yellow Sheet today (12/8) reported,
While the plaintiffs in Harris v. AIRC have long argued that the population disparity among the IRC’s legislative districts was motivated by partisanship, the attorney for the Republican activists who challenged the map didn’t focus on that in today’s oral arguments before the US Supreme Court. Instead, attorney Mark Hearne focused almost exclusively on whether population deviation was justified by a desire to comply with the Voting Rights Act. Hearne conceded that the predominant reason for the population deviation was related to the VRA, which jibed with the 2014 ruling by two of three US District Court judges who ruled that, though partisanship played some role in the commission’s decisions, the primary motivating factor was a desire to get preclearance from the US Dept of Justice. 
But Hearne and Brnovich, who represented Reagan at the high court, argued that VRA compliance does not justify the kind of population deviation – a range of 8.8 percent deviation from average – that the IRC enshrined in its legislative district map. “That justification, even if it was [made] in good faith, does not excuse a constitutional violation of one-person, one-vote,” Hearne said. He described the case as a “mixed-motive case,” which he said places the burden on the IRC to defend its actions. “The first reason was to obtain a partisan advantage for the Democrat party. The second reason was a perceived belief that malapportioned districts were necessary to obtain Justice Department preclearance approval. Neither of these reasons justifies a deviation from the constitutional principle of one-person, one-vote,” he said. The IRC relied on faulty legal advice that underpopulating some districts was a permissible way to comply with the VRA, Hearne argued.
And that's only a small part of the detail from the hearing set forth in the YS.

Evan Wyloge, for the Arizona Center for Investigative Reporting, was there and filed a report. Here's an excerpt,
Arizona Attorney General Mark Brnovich, representing Secretary of State Michele Reagan, took the side of the plaintiffs in the case. He argued before the court that the population disparities are not random or incidental, and that even though Voting Rights Act compliance was a motivation for the commission, the disparities illegally pack Republicans into districts.
Justice Samuel Alito was receptive to Brnovich’s arguments, asking whether the court should rule that the commission went above and beyond what the Voting Rights Act required of the plan.
Brnovich responded by pointing out that earlier versions of the maps did not have such large disparities, and that they likely would have satisfied the Justice Department’s minority protection.
Justice Stephen Breyer expressed frustration over how the court would write a ruling in the case, if they side with the plaintiffs, because defining what partisan gerrymandering looks like is a thorny prospect.
“How do we write this? There are two areas that are difficult to write. One is, I know there is this 10 percent rule, but it doesn’t say we don’t look at it at all. We institutionally can’t review thousands of pages of record in every redistricting case. So what are the words there that describe the standard we should bring to this?” Breyer asked. “How can we say that partisanship can’t be used at all when you’re doing one ­person, one ­vote but the sky is the limit… how do we reconcile our institutional ability with the need to have some policing here?” [...]
A decision isn’t expected until mid-2016, which wouldn’t allow enough time to redraw the maps before the 2016 election. 
Wyloge also appeared on Arizona Horizon last night (the first segment, up until about seven and a half minutes into the show). Unfortunately, neither he nor host Ted Simons brought up Wang's analysis showing that the Republicans did not suffer any dilution of votes in any practical sense.

Honestly, as I was in March, I am reluctant to prognosticate in this case. However, I have told others that if the amicus briefs are any indication, the court will uphold the maps and deal a loss to convicted felon Wes Harris and company. Not one amicus brief was filed in support of Harris. Several supported the AIRC position.

Notable in those were two points. One, Princeton Professor Sam Wang demonstrated that from a mathematical analysis of the current map, which is the one Harris challenged, Republicans did NOT suffer any loss of the influence or impact or weight of their votes.

Additionally, if Harris prevails, thousands of redistricting plans (all levels of government in all 50 states) will certainly be subject to litigation. That will destabilize government all throughout the country.

But the nine justices are nothing if not clever. There may be a way to carve out a victory for Harris narrower than any yet foreseen. In which case, we could be very surprised.


At 9:00 am Wednesday morning, the Maricopa County Board of Supervisors meets. The appointment to fill the LD26 vacancy in the House of Representatives is on the agenda. Reportedly, Celeste Plumlee has been told to be sure to attend. That's a likely indicator that She will be was appointed.


The transcript from yesterday's SCOTUS oral argument hearing is available to read, all 74 pages of it.

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