Wednesday, November 30, 2011

Redistricting -- getting down to brass tacks

The Arizona Independent Redistricting Commission met today just after 4pm to begin adjusting the draft maps in preparation for submitting them to the Department of Justice for preclearance. Four commissioners (Freeman still out because of yesterday's birth of his son), barely two dozen members of the public (at the highest point, most of the time less than 20), and one reporter (other than this blogger) attended.

The process will prove to be again very tedious as they talk about the goals and objectives for considering changes to Congressional and legislative district lines. A discussion that seemed to take forever (remember how much fun it is to watch paint dry?) finally got "drilled down" to the primary goal of making sure the proposed Voting Rights districts (both Majority-Minority and Coalition districts) are solid, but not over-packed.

Stertz was less contentious today but still had his moments. Linda McNulty proposed several approaches for Strategic Telemetry to make changes to Congressional districts from the draft map, including to keep Cochise County whole; try to make CD 1 geographically smaller; put Fountain Hills with CD6 (the Phoenix metro area, as opposed to the western Arizona rural CD); and consolidating Sedona and Oak Creek into the same CD. But Stertz took issue with giving this homework to the mapping consultant. He threatened to stonewall, saying at least twice that he also had a laundry list of changes he wanted to see made to each of the draft maps but it would take at least a couple of hours to go through them.

After both Herrera and McNulty indicated that Stertz would be welcome to go through his list of recommended changes tomorrow or another day, he acquiesced. Tomorrow, we will see what the changed (working) maps (based on changes proposed today) and the prospective demographics will be.

The most important point is that McNulty said she proposed small changes that would address major points that had come up in the second round hearings.

I should have a list of proposed meeting days and times for the next couple of weeks sometime on Thursday. I will try to post them as soon as I have them, though locations will still have to be worked out by AIRC staff.

Only a few members of the public offered comments today during the Call to the Public. No tea partiers or hostile GOP activists had anything to say today.

Occupy Phoenix -- Day of Action to Expose ALEC -- NOVEMBER 30th

Day of Action in Phoenix Aims to Expose the Truth of ALEC

Phoenix, AZ 11/29/11 — Groups will convene in Phoenix tomorrow, November 30, to make a stand against the injustices committed by the American Legislative Exchange Council, also known as ALEC.

At 8am a variety of groups will converge upon the Kierland Westin Resort and Spa, where ALEC is holding its States and Nation Summit. The groups will use a diversity of tactics tosend the message to ALEC members that the American public is watching and we are not pleased.

At 11am, AZ AFL-CIO, Common Cause, MoveOn, Lucha AZ, PDA, People for the American Way, AzAN, AFSCME, DFA and more will be holding a press conference speaking out against ALEC at 11am at the State Capitol. Speakers will include Lisa Graves, the Executive Director of the Center for Media and Democracy.

ALEC IN ARIZONA: The Voice of Corporate Special Interests in the Halls of Arizona's Legislature

Find out: 
  • What is ALEC?
  • What members of the Arizona Legislature are members of ALEC
  • Which business concerns in Arizona are involved with ALEC

Tuesday, November 29, 2011

Redistricting -- Nap time is over UPDATED 11/30 4:15pm

The Arizona Independent Redistricting Commission convened at 1:35pm today with four (of the five) commissioners in attendence, about 75 people in the audience and with several media outlets present, including four television cameras.

However, in spite of the dramatic lead up, Jan Brewer succeeded in upstaging the IRC once again, issuing the following statement:

“Perhaps the most difficult part of being a leader is telling people what they don’t want to hear. This is one of those moments. I share the sentiments of Arizona voters concerned about the conduct of the Independent Redistricting Commission, especially its Chairwoman. Likewise, I am deeply concerned that this year’s redistricting process has not been conducted openly and in full accordance with the Arizona Constitution, and that the resulting maps may unfairly diminish the political influence of individual communities and the state as a whole.
“It was with those concerns in mind that I removed the Chairwoman from her post with the IRC. I stand by that action, and believe the Arizona Supreme Court grossly erred in returning the Chairwoman to the Commission. There may be another time to deal with the Court, but it’s important at a time like this that we keep our eyes on the bigger picture.
“Arizona voters created the Independent Redistricting Commission with their approval in 2000 of Proposition 106. I’ve seen no evidence to date that indicates voters are ready or willing to throw out the Commission structure. Moreover, the Legislature has yet to produce a consensus set of redistricting reforms to propose to voters.
“I am aware of the time urgency. I know that some legislators, especially those of my political family, are anxious for me to call a Special Session so that they may pursue a ballot proposal to repeal or reform Prop 106. But we cannot act in haste – or in anger – when it comes to something as critical as the way in which Arizona draws its congressional and legislative districts. Our action must be reasoned and rational, and there must be a defined path to victory with voters. I will not call a Special Session on this topic unless and until I believe those bars have been met.”

However, it appears Maricopa County Recorder Helen Purcell (Republican) and elections director Karen Osborne (Democrat) have a different understanding of urgency than Brewer and Arizona's brilliant GOP state lawmakers. Brewer, of course, was referring to the deadline before which a special session must be held if a measure could be put on the February 28th ballot (for REPUBLICAN Presidential Preference primary).

But the county elections officials told the Commission they need the final maps as soon as possible. If the AIRC delivers the maps to the Department of Justice for preclearance at the beginning of January, DOJ will have until March to decide whether they comply with the Voting Rights Act. Since nominating petitions must be submitted by candidates before the end of May, and county elections officials must have DOJ approved maps well before then, the urgency is paramount.

But the bonehead Republicans leading the House and Senate caucuses STILL want to put the question to voters instead.

Okay, back to the AIRC. Nap time is over. Right before the commission meeting was called to order, a source told me he had been told Stertz plans to do "something big" today. However, since Commissioner Freeman is otherwise occupied today (his wife gave birth to a wonderful baby boy just before noon), it was Stertz against the world. But he was in top form. As soon as Purcell and Osborne were gone, he started jawing about the fact that the Commission is moving TOO FAST.

Stertz was also testy and argumentative today. He had chosen his rhetoric in advance, declaring, "since we have not followed the Constitutional protocol" thus far... and since efforts to sabotage the IRC to this point have been beaten back by the Arizona Supreme Court, it seems like he's on a mission to set the stage for the next round of litigation.

IRC counsel Mary O'Grady quickly took issue with Stertz' claim about not following Constitutional protocol. And Herrera was having none of Stertz' efforts today, responding quite assertively that he is comfortable with the process as it has been carried out thus far and believes it IS time to move forward.  McNulty also asserted that she believes they have been and are on the right track. She specifically noted that she believes there are NOT any Constitutional deficiencies in the maps thus far.

On the other hand, Stertz sounded like he had been directly briefed by Lisa Hauser (who had been Brewer's lead counsel in the litigation involving Mathis' removal and reinstatement). Perhaps Stertz didn't get the memo that Hauser lost every aspect of the litigation. That's a significant clue that, despite her experience with the first AIRC, her legal advice may not be all it's cracked up to be.

Stertz also asked, "I want to discover something... are we going to set December 25th as an arbitrary completion date?" and "Are we going to take a day to define what some of the 'communities of interest' are?" Mathis' response, "I don't see a State Constitution Day for each criteria."

Herrera snapped back at Stertz a couple of times today. Twice, the two bickered with each other until Mathis said, "enough!"

At minimum, the bickering we heard this afternoon foreshadows how deliberations are likely to go over the next few weeks. So much for the Arizona Republic's demand for unanimous agreement on final maps. Stertz made it clear today he was not going to agree to anything proposed by Democrats.


Strategic Telemetry president Ken Strasma presented an analysis of racially polarized voting patterns in recent history. His handouts/Power Point slides will be available, according to AIRC staff, tomorrow or the next day. I will post a link to them when it becomes available. IRC counsel Joe Kanefield noted that what is being presenting now is only a draft and that the analysis will be refined.

Strategic Telemetry's Willie Desmond presented a summary of public input from the second round of hearings. More than 6,500 public comments have been received and cataloged by AIRC staff. More information will be available at soon (hopefully tomorrow).

Stertz asked about getting "a reconciliation of the cost of that litigation." When asked to clarify, Stertz said "cost to the state of Arizona." O'Grady said the IRC would not have the total cost for the state, as costs incurred by the Governor's office and the legislature would have to be gotten from them. As to costs incurred by the AIRC, Exec. Dir. Ray Bladine said not all of the bills have come in, but he's gotten similar requests from the Arizona Capitol Times and the Arizona Republic.

From his tone, it seemed obvious Stertz is looking for more ammunition for undermining the efforts of the Commission. But really, he should be shining his accountability spotlight at least as brightly on the antagonists in this drama, Brewer, Andy Tobin and the state senate.

Brewer, in her statement today, had to justify the stupidity with which she acted to remove Colleen Mathis from the AIRC. That much is to be expected, since she failed to count the cost before having Acting Gov. Ken Bennett call the legislature into session while she was on her book tour.

What's significant here, however, is that she had to acknowledge that the voters of Arizona have no intention to repeal Prop 106. Some also think that her statement about dealing with the Court another time is a veiled threat. But she does not really indicate what she means by the "bigger picture" that we must keep our eyes on. I think it's just a mechanism to deflect attention away from her phenomenal screw up in trying to undermine the AIRC to begin with.

What she does not say, but is easily and reasonably inferred is that -- in spite of the incredible amount of noise from GOP activists and tea partiers -- Arizonans overwhelmingly view what she did as an egregious, offensive act.

Brewer may not call a special session to try to get a repeal of Prop 106 put before voters, but that will not stop the legislature from trying it without her once the regular session begins in January. Expect someone like Frank Antenori or John Kavanagh to introduce a resolution to put the issue to voters in November 2012. They will not need either the governor's permission or approval to do it.

By the way, when time came for the Call to the Public, Mathis said she had seven requests to speak. Most of the people, however, had left much earlier, including several of the usual tea party suspects.

One young man, Chase Williams, eloquently called again for more competitive districts. He had spoken at the Scottsdale forum that was so rowdy last month. Then there was Jim Williams, a tea partier who has spoken out rudely at several AIRC meetings, including the first round hearing in Mesa. He may have been the guy that threatened someone who was calling for competitive districts. Anyway, THIS Mr. Williams spoke today and was remarkably polite. Earlier in the meeting, however, he yelled out at Commissioner Herrera when the bickering with Stertz was going on. An off-duty Maricopa County Sheriff's deputy (female) assertively confronted him and told him he had to either behave or leave. She got the point across. He did tell the commissioners that they would have to answer to Arizona voters if they didn't fix the maps.

One last thing for today -- now that the AIRC is back to work, nap time is over.

Monday, November 28, 2011

Redistricting -- the action resumes UPDATED 4:20pm MST

The Arizona Independent Redistricting Commission is scheduled to meet tomorrow for the first time in nearly a month. On tap three days in a row, the members will be briefed by county elections officials to set the urgency for getting the final maps completed and sent off to the Department of Justice.

Additionally, mapping consultant Strategic Telemetry will present a report detailing and summarizing public input received during the second round of outreach hearings. Then legal counsel and a consultant on racially polarized voting will brief the Commission on Voting Rights Act matters.

With those items on the forefront, the five commissioners will work to make adjustments to the draft Congressional and legislative maps.

To my knowledge, no one has reported on any planned next move(s) by Arizona's GOP elected officials. There are, however, still a few days remaining for Gov. Brewer to call a special legislative session for the purpose of putting a measure on the ballot for February 28 (the date of the Republican Presidential Preference Primary) asking voters to repeal Prop 106. That move carries several risks and could (would certainly) backfire on them. Then again, removing Mathis from the AIRC had obvious risks from the start. There is ample evidence now that neither Brewer nor the legislature gave much thought to those risks a month ago.

House Speaker Andy Tobin has been outspoken in his criticism of the AIRC and of the Arizona Supreme Court for reinstating Colleen Mathis as chair. While Tobin used blatantly inflammatory rhetoric in his criticism, he has tempered his language about what a proposed ballot measure should say and do. He has acknowledged that voters are likely unwilling to give redistricting authority back to state lawmakers but also believes voters may consider making some changes, such as to increase the number of independent members of the Commission.

What remains at this time is an unspoken anxiety that can be likened to that of tectonic plates building up tension that eventually gets released, when those plates shift, as earthquakes.

Because we do not know how the tension will be released, watching the AIRC closely this week will be very important, for the decisions that are made (voted on) as well as to assess the interaction of the five commissioners. It's fair to expect that GOP/TP activists will again show up to express their consternation over the results of the recent litigation in the Supreme Court.

Beyond that, we just have to wait and see.



There's plenty of buzz around the State Capitol today about the possibility that Brewer might call the legislature into special session to refer a repeal of Prop 106 for voters. Other than what I posted earlier on this, it appears that GOP caucuses are calling their members to check on availability.

Several questions remain, however, making a special session still uncertain. The ALEC conference in Scottsdale may bring more of them to the valley but it also might be a reason they do not want to be called for a vote before the Nov 30 deadline (to make it so the measure could be on the Feb 28 ballot).

Other unresolved questions include whether DOJ would even allow it to go forward, given that the only other item voters will consider that day (in Arizona) is which GOP presidential candidate to nominate; as well as the cost of such an election and the cost of likely litigation.

Saturday, November 26, 2011

End corporate personhood

The 26th amendment to the US Constitution, giving 18-year old citizens the right to vote was made law in a matter of a few short months in response to national outcry over sending young people to war (Vietnam) without them having a say in their government.

The United States was in the throes of the Vietnam War and protests were underway throughout the nation. Draftees into the armed services were any male over the age of 18. There was a seeming dichotomy, however: these young men were allowed, even forced, to fight and die for their country, but they were unable to vote. The 14th Amendment only guaranteed the vote, in a roundabout way, to those over twenty-one.
The Congress attempted to right this wrong in 1970 by passing an extension to the 1965 Voting Rights Act (which itself is enforcement legislation based on prior suffrage amendments) that gave the vote to all persons 18 or older, in all elections, on all levels. Oregon objected to the 18-year-old limit, as well as other provisions of the 1970 Act (it also objected to a prohibition on literacy tests for the franchise). In Oregon v Mitchell (400 U.S. 112), a sharply divided Supreme Court ruled that the Congress had the power to lower the voting age to 18 for national elections, but not for state and local elections. The case was decided on December 1, 1970. Within months, on March 23, 1971, the Congress passed the text of the 26th Amendment, specifically setting a national voting age, in both state and national elections, to 18. In just 100 days, on July 1, 1971, the amendment was ratified. (emphasis mine)

Make no mistake, the influence (interference) of UNfair Trust in Arizona's independent redistricting process  is due to the hubris of several Arizona GOP elected officials exploiting Big Money interests.

A new, 28th amendment to the US Constitution -- to end corporate personhood and thereby restore the rights of We the People -- can be approved and ratified, in spite of the fact that Congress is largely dominated by the voice of corporations, rather than that of the People, in our era.

Please join me in signing the petition at Move to Amend.

And my thanks to Thom Hartmann for making this video.


Thursday, November 24, 2011

Redistricting -- What's the opposite of thankfulness?

My facebook status today: "I'm just plain thankful."

Of course, I have some specific things for which (and people for whom) I'm thankful.

I'm thankful for a daughter of whom I can be proud, a son-in-law who is a genuine good guy and a wonderful granddaughter. I'm thankful for my health and my life, all the rocks and potholes in the road notwithstanding.

I'm just plain thankful.  But that doesn't keep me from being aware of either things in my own life or things around me which warrant change and improvement. Unless this is the first time you've read my blog, you know about some of those things already.

So, I went to to get a little bit of insight on thankfulness. Under antonyms, the words "criticism" and "ingratitude" are listed.

Then I thought about how thankful I am that Jeremy Duda described the criticism and ingratitude some of Arizona's GOP senators this week. They criticized and apparently are not thankful for how our governor, Janice Brewer, broke a promise in exchange for their votes to decapitate the IRC.

Of course, my first thought was that Frank Antenori was just looking for someone to blame for him not keeping HIS word to scuttle the vote to remove Colleen Mathis in the first place. That may be a significant, untold aspect of Duda's story. But there is SOOOOOOO much more.

But GOVERNOR, we HAD A DEAL! We scratch your back, you scratch ours, right? After all, Antenori was very emphatic in the days before the vote that if a ballot measure to repeal Prop 106 wasn't on the call for special session, he had the votes to block removal of Mathis.

So, apparently Brewer -- at minimum -- intimated that she would honor Antenori's terms by calling a second special session to allow lawmakers to put a measure on the ballot in the February Presidential Preference Primary to repeal INDEPENDENT redistricting.

This friend of mine wondered aloud about the unseemliness of the blatant logrolling -- quid pro quo -- between the governor and senate Republicans.

From a blog on logrolling in the realm of World Cup Soccer:
...the increased stakes of hosting the tournament have opened the door for functionaries from poorer countries to auction off their votes to a wealthy bidder. I have written about corruption in earlier posts, and this is not something that should surprise anyone. Two, the expanded choice set, coupled with the joint awarding of two World Cups has opened the door to what political scientists call "logrolling".
Pretty unseemly, isn't it? You can get more of the context here.
Importantly, strictly speaking, logrolling is not corruption so long as representatives of national soccer federations do not enrich themselves personally, and it should not be confused with corrupt activity. It may be unseemly or undesirable, but it is not illegal.
Thanks to UNfair Trust and its as yet undisclosed propaganda arm (we've seen the output, or product of that activity, even though they still refuse to disclose the fundraising and expenditure detail), Brewer has been made the ultimate patsy. For months, that clandestine lobbying/political operation had targeted Colleen Mathis with a horrendous barrage of vitriol, mainly from surrogates. Those surrogates consisted mostly of GOP legislative district activists and easily manipulated tea partiers.

The ultimate irony in this situation, of course, is that the main allegation against Mathis had been of bid rigging and vote trading. Which is what Frank Antenori, in all of his brash glory, has said he engaged in with Brewer. Well, the vote trading anyway.

Wednesday, November 23, 2011

Redistricting -- Supreme clarification UPDATED 7pm MST

This afternoon, the Arizona Supreme Court issued an order in response to filings earlier this week from Gov. Brewer and House Speaker Andy Tobin. A brief summary follows.

The Court has received Respondents’ Joint Motion to Reconsider Order of November 17, 2011, Respondents’ Joint Motion for Expedited Consideration, Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending Reconsideration, and the Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. After consideration, the Court decides as follows: IT IS ORDERED granting Respondents’ Joint Motion for Expedited Consideration.
 IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending
Reconsideration. IT IS FURTHER ORDERED denying Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. The Court will treat the Motion as an amicus brief.
 IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Reconsider Order of November 17, 2011, except insofar as the motion seeks clarification of the Order. As the Order notes, the Court accepted jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution. The Court further concluded that the issues presented are not political questions committed by the Constitution to the unreviewable discretion of the other branches of government.
 IT IS FURTHER ORDERED clarifying the Court’s November 17, 2011 Order as it concerns the letter of November 1, 2011, from the Acting Governor to Colleen Mathis. The Order states that the November 1, 2011 letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution. Respondents seek clarification whether the Court’s conclusion was based on the format of the November 1, 2011 letter, which stated that the Governor had determined that Mathis had “failed to conduct the Arizona Independent Redistricting Commission’s business in meetings open to the public, and failed to adjust the grid map as necessary to accommodate all of the goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14).”
 The Governor’s November 1, 2011 letter constitutes her findings of grounds for the removal of Mathis. The Court’s conclusion that the letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” is based on the letter’s substance, not its format. The letter does not, as a matter of law, identify conduct that provides a constitutional basis for removal. One ground identified in the Governor’s letter is a failure to conduct the commission’s business in meetings open to the public. The Constitution directs that “[w]here a quorum is present, the independent redistricting commission shall conduct business in meetings open to the public, with 48 or more hours public notice provided.” Ariz. Const., Art. IV, Pt. 2, § 1(12). The statutory Open Meeting Law defines “meeting” in terms of a gathering of a quorum, A.R.S. § 38-431(4), and it directs that all meetings of public bodies shall be public meetings and that legal action of Supreme Court Case No. CV-11-0313-SA public bodies shall occur in public meetings. Id. § 38-431.01(A). A failure to conduct the business of the commission in meetings open to the public must at least involve violations of these laws for it to constitute “substantial neglect of duty” or “gross misconduct.” (We do not decide whether the constitutional provision preempts any statutory Open Meeting Law requirements, an issue that is being litigated in another forum.) There is, however, no allegation of any non-public meeting of a quorum of the commission in the Governor’s October 26, 2011 letter or in the responses thereto. Nor does the Governor’s November 1, 2011 letter find that a non-public meeting of a quorum of the commission occurred.
 With regard to preparing maps, the commissioners perform legislative tasks in which they must “balance competing concerns” and “exercise discretion in choosing among potential adjustments to the grid map,” Ariz. Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, 220 Ariz. 587, 597 ¶ 28, 208 P.3d 676, 686 (2009), and the commission’s adoption of final maps is subject to judicial review for compliance with the Constitution’s procedural and
substantive requirements. Id. at 596 ¶ 24, 208 P.3d at 685. The Governor’s disagreement with commissioners over whether they have properly considered constitutional criteria for adjusting the grid map before they have completed final maps is not, as a matter of law, a constitutional basis for removal.
 As noted in the Order, the Court in due course will issue an opinion more fully detailing its reasoning in this matter. 

The Arizona Supreme Court clarified that the issues are not exclusively political questions and therefore are subject to court review.

Further, the Court said there will be NO delay in reinstating Colleen Mathis to chair the AIRC; Andy Tobin will not be granted status as an intervenor; and there will be NO reconsideration of the overall decision to reinstate Mathis to the AIRC.

The Court DID, however, clarify last week's order. The problem with the October 26 AND November 1 letters is that NO finding of gross misconduct or substantial neglect of duty were cited. Citing problems with the draft maps as grounds for removal is just WRONG. And NO finding that IRC meetings had been conducted outside of the public or in violation of open meeting provisions of either the Arizona Constitution or Arizona Revised Statutes were cited.

What this ultimately means is that if Brewer and the senate again try to oust Mathis, it WILL be reviewable by the Supreme Court and that if they want the Court's blessing, they will have to demonstrate substantively MORE than simply what the governor or Sen. Biggshot decide constitutes gross misconduct.

It would still be incredibly naive for us to expect this to be the last we've heard of any attempts by Arizona GOP elected officials to interfere with independent redistricting.


The Arizona Independent Redistricting Commission has scheduled three meetings next week, all at the Fiesta Resort in Tempe.

Among the items for discussion, a presentation by county elections officials to put the time frames in perspective; presentation by Strategic Telemetry on the public input received during the course of the second round of hearings; presentation on racially polarized voting; adjustment of draft maps; calls to the public and more.


Arizona Capitol Times writer Jeremy Duda today reports that a top senate staffer and some GOP senators claim Brewer broke a promise to bring the legislature back into special session to put a repeal of Prop 106 on the ballot for the GOP Presidential Preference Primary in February.

There are still 18 votes in the Senate to set a special election on Prop. 106 for Feb. 28, the day of Arizona’s presidential preference election, Antenori said, and he believes there are at least 31 votes in the House. The measure would only need a simple majority. 
Antenori believes, according to the story, that Brewer is intentionally stalling so that the deadline for getting the measure on the February ballot (November 30) passes before anything can be accomplished. The ACT story, by the way, is not behind a pay wall at this time.

The story concludes by indicating the governor wants the guidance from the court before decided what to do. Now that Janice has her guidance, I wonder what she will do?


Happy Thanksgiving!

Are you thankful?  I am.

Tuesday, November 22, 2011

How much taxpayer money does Brewer waste on litigation?

Today, Arizona state Rep. Daniel Patterson (D-Tucson) filed a public records request with the governor's spokesman demanding access to records detailing expenditures incurred by the governor for litigating her partisan agenda.

STATE CAPITOL, PHOENIX - State Rep. Daniel Patterson, D-Tucson (District 29) filed a public records request today with Governor Jan Brewer's office, asking for an accounting of the taxpayer dollars that have been spent litigating the Governor's various policy positions and actions.
"This state is in an economic crisis. The Governor's attention should be focused on creating jobs and the public's money should be dedicated to schools and kids," Patterson said.
"In every case below, the Governor and her partisan supporters in the Legislature had ample warning of the cost that would ensue from potential lawsuits. But they moved forward with their reckless and extremist agenda and now it is the taxpayer that is paying the bill," Patterson said.
Here's the letter Patterson sent:

November 22, 2011

Matthew Benson
Director of Communications
The Office of Governor Janice K. Brewer
1700 West Washington Street
Phoenix, Arizona 85007

Dear Mr. Benson,

Pursuant to A.R.S. § 39-121 et seq., I am writing to request copies, or the right to examine and make copies, of any and all public records evidencing the costs, including attorneys' fees, of the following litigation:

1.      Arizona Early Childhood Development and Health Board v. Brewer, CV-09-0078-SA (Ariz. Supreme Ct.)
2.      State of Arizona v. United States, cv-01072-SRB (Ariz. Dist. Ct.)
3.      United States v. State of Arizona, cv-01413-NVW (Ariz. Dist. Ct.)
4.      Brewer v. Burns, CV-09-0168-SA (Ariz. Supreme Ct.)
5.      Arizona Independent Redistricting Commission v. Brewer, CV-11-0313-SA (Ariz. Supreme Ct.)
6.      Collins v. Brewer, cv-02402-JWS (Ariz. Dist. Ct.)
7.      Fogliano v. Betlach, CV2011-010965 (Ariz. Superior Ct.)
8.      State of Florida v. U.S. Department of Health and Human Services, 3:10 cv-91 RV/EMT (N.D. Florida)

This request includes, but is not limited to, any and all documents (whether written or electronic, including text messages, emails, phone records, audio, video, CD Rom or any other format) and includes costs for the entire span of the litigation, including appeals (interlocutory or otherwise) and any judgments for damages, including payment of the prevailing party's attorneys' fees, as well as any costs for cases associated or consolidated with the above-named cases.  Summaries of these costs may be provided in lieu of copies of billing statements in order to minimize any dispute over withholding attorney-client confidential information.

These records are not sought for any commercial purpose, and therefore I do not agree to pay for any costs associated with locating these public records.  See A.R.S. § 39-121.03.

Please comply with this request on or before November 28, 2011.  See id. § 121.01(D)(1) & (E) (requiring prompt compliance with public records requests).  If for any reason you refuse to provide any of the requested public records, pursuant to A.R.S. § 39-121.01(D)(2), please provide an index of the items withheld and the reasons for which you are withholding them.

Representative Daniel Patterson


Some info on the listed court cases (with links to additional information):

Arizona Early Childhood Development and Health Board v. Brewer, CV-09-0078-SA (Ariz. Supreme Ct.)

Challenge to funds sweep of interest money for First Things First; Supreme Court ordered the state to refund the swept money plus interest; funds were voter-protected

State of Arizona v. United States, cv-01072-SRB (Ariz. Dist. Ct.)

State filed suit in federal court asking for clarification of how the feds would enforce drugs laws in light of Arizona's new medical marijuana laws; Brewer has refused to implement voter-approved medical marijuana initiative because of letter from U.S. Attorney's office regarding federal laws, even though the letter did not say any state employees would be prosecuted for implementing the program.

United States v. State of Arizona, cv-01413-NVW (Ariz. Dist. Ct.)

SB 1070 litigation

Brewer v. Burns, CV-09-0168-SA (Ariz. Supreme Ct.)

Governor's challenge to legislature for not providing her with the budget bills that both chambers passed; Supreme Court ordered the bills to be presented more quickly, but did not require such quick presentation in the case presented to the court

Arizona Independent Redistricting Commission v. Brewer, CV-11-0313-SA (Ariz. Supreme Ct.)

This is the recent special action in which the Supreme Court reinstated Colleen Mathis to the AIRC

Collins v. Brewer, cv-02402-JWS (Ariz. Dist. Ct.)

Challenge to repeal of benefits for state employees' same sex partners and their dependents; both the district court and the court of appeals enjoined the repeal of benefits.

Fogliano v. Betlach, CV2011-010965 (Ariz. Superior Ct.)

Challenge to denial of medical care to certain folks on AHCCCS (also known as the Prop 204 litigation); just argued in state court of appeals last month.

 State of Florida v. U.S. Department of Health and Human Services, 3:10 cv-91 RV/EMT (N.D. Florida)

Challenge to federal Affordable Care Act (so called Obama Care); AZ joined several others states in this litigation


I will be interested in the information Patterson receives in response to this request.

Redistricting -- What could the Supreme Court have been thinking?

A reader with a legal background offered the following speculation on what the Supreme Court may have decided as a basis for its ruling last week to reinstate Colleen Mathis as chair of the Arizona Independent Redistricting Commission.

To the extent you care to share, what’s your (and/or your sources’) take on the meaning of the AZSCT’s ruling that “the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate ‘substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office’ by the intervenor Mathis.”

I’m not sure.  Espresso Pundit is sure that the order means the court was concerned purely with procedure.

(from Espresso Pundit) “... As soon as the ruling came out, I pointed out that the wording was odd and that the court had said that the "letter" didn't demonstrate substantial neglect of duty etc.  My point was that it appeared that the Court's complaint was procedural.
The Court has ruled that Governor Brewer did not exceed her authority.  They have deferred to her and to the Senators to determine what constitutes substantial neglect of duty or gross misconduct. However, they do not believe that Ms. Mathis received adequate notice on the specific violations and have reinstated her subject to the Governor fixing the procedural shortfalls. “

 (my source) I disagree with him. 
So do I. In my experience, as limited as it is, I've grown skeptical of those who believe they are most sure. One of the reasons for my skepticism is that as a young adult, I was foolish enough to think I knew things for certain. Thankfully, being wrong didn't kill me. But I have a healthy skepticism of my own ideas, enough so to know I should be open to the possibility that someone else may have better insight than I.

Back to my source:
If the issue was that Mathis did not receive adequate notice, then the Court would have stated that – and the “defect” would be in the October 26 letter, not the November 1 letter.  Ariz. Constitution Article 4, § 1(10) provides that “[a]fter having been served written notice and provided with an opportunity for a response ...”  Therefore, the operative “written notice” under §1(10) is the October 26 letter.  Additionally, the procedural due process issue -- which Mathis raised -- was that she did not have a real “opportunity to respond.”  Again – the operative letter for those purposes was the October 26 letter, not the November 1 letter.  Finally, the ‘procedural due process” issue is not whether the charges meet the test – but whether she received notice of the specific charges and an opportunity to respond.   Therefore, Espresso Pundit’s argument is, imho, .... flawed.

However, I do think that the AZSCT meant to convey something by referring to the November 1 letter.  I just can’t tell what – and can think of a few reasonable interpretations:

1.  The Court may be saying that Brewer improperly “conflated” § 1(3) and § 1(10). Section 1(3) requires each member to be “committed to applying the provisions of this section in an honest, independent and impartial fashion and to upholding public confidence in the integrity of the redistricting process.”  In Brewer’s November 1 letter (and October 26 letter, and various press statements), she repeatedly uses this phrase.  From the November 1 Letter:

“The result [of the complained of actions] is a failure to apply the Arizona Constitution's redistricting provisions in an honest, independent and impartial fashion, and a failure to uphold public confidence in the integrity of the redistricting process. In my judgment, the foregoing constitutes substantial neglect of duty or gross misconduct in office.”

In other words, it seems clear Brewer believes that § 1(10)’s reference to “substantial neglect of duty” and “gross misconduct in office” means that if she determines that any member no longer meets the §1(3) requirement that a member be committed to applying .....” then that member has committed “substantial neglect of duty” or “gross misconduct in office”

As the Prop 106 Drafters’ Amicus Brief makes clear, however, the court must interpret the law so that “[e]ach word, phrase, clause, and sentence must be given meaning so that no part will be void, inert, redundant, or trivial.” (See Prop 106 Drafters’ Amicus Brief at 2-3, citing City of Phoenix v. Yates, 69 Ariz. 68, 72, 208 P.2d 1147, 1149 (1949).  Under that principle, if the standard for removal was whether, in the Governor’s opinion, a member no longer met the requirements of §1(3), then it would have used that same language in the removal provisions of §1(10).  The fact that it used different language must mean something.  Therefore, the Court may be saying that the §1(10) reference to gross misconduct or substantial neglect of duty is a higher standard than the one set forth in §1(3) regarding selection of members for the AIRCD – and, so the November 1 letter – which expressly says that, in Brewer’s view, the alleged failure to meet the §1(3) standards constitutes grounds for removal under §1(10) – applied the wrong standard.

2.  Alternatively, the Court may be saying that the complained of actions – i.e. the (a) alleged failure to conduct the ARIC business in meetings open to the public, (b) alleged failure to adjust the grid map as necessary to accommodate all of the goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14) – does not constitute “substantial neglect of duty” or “gross misconduct.”

Again, however, as the Prop 106 Drafters’ Amicus Brief makes clear, the §1(10) standard for removal was intentionally changed to eliminate, as a grounds for removal, the failure to follow the process set forth in the law:

“As the attached drafts of the initiative show, the phrase a “violation of this section” as a basis for removal was specifically deleted to avoid the type of situation that occurred here— “removal based on [an] alleged failure to follow a statutory guideline such as compactness.”

Prop 106 Drafters’ Amicus Brief at 6.  Therefore, the Court may be saying that the alleged actions themselves – the alleged failure to hold open meetings and/or to adjust the maps to accommodate all requirements – are insufficient grounds for removal under §1(10).

3.  Alternatively, the Court may be split with some members believing that the notice was inadequate (although, as noted above, if that’s the case, they referenced the wrong letter), and some members believing either that Brewer applied the wrong standard or the complained of actions don’t qualify under §1(10) – but all agreeing that the removal was improper.

Or – something else ??? I just can’t tell – so am wondering what your thoughts are ????  (If you care to share, of course ...)
As I told him (my source), I had not given as much thought to the possibilities of what the Court may have been thinking as he did. But I do think that each of these scenarios is plausible. I would also have to say that Espresso Pundit's scenario is at least a little bit plausible, but I think that one is unlikely. Rather, I think the simplistic procedural defect theory related to the November 1 letter is more wishful thinking than anything else.

Further, it is very obvious in my mind that Brewer and the legislature are planning an all out propaganda assault on independent redistricting in preparation for a measure they will refer to the voters to repeal Prop 106. If they think they can get away with pairing it with the Republican Presidential Preference primary in February, they are likely to do so. Otherwise, another election date would be chosen.

Regardless of the underlying reasoning which served as the basis for last week's Supreme Court ruling, the attack on independent redistricting will continue. 

Brewer indicated yesterday that she had not given any thought to the possibility of a recall campaign being launched against her. That may or may not have been true. Whether or not an adequate base of volunteers comes forward to give such a recall movement a fighting chance, legislative candidates must emerge who will boldly and clearly articulate ideas and principles that are in the best interest of a majority of Arizonans. Ideas and principles that have come to the public awareness as a result of the events in Wisconsin over the last year as well as concerns like those which gave rise to the Occupy Wall Street movement.

Populism is alive and well in America and Arizona, but to stay alive we need people willing to enter the fray as candidates.     

It is time to Rise UP! 

Monday, November 21, 2011

Redistricting -- Brewer/Hauser wants Supremes to reconsider -- UPDATED 12:15am 11/22

This afternoon, Lisa Hauser, on behalf of the governor, filed a Motion to Reconsider along with a Motion for Expedited Consideration of the Supreme Court order given last week in the Special Action to nullify removal of Colleen Mathis from the Arizona Independent Redistricting Commission.

Generally, in order for a court to reconsider a decision, either the circumstances must have changed or new insight on applicable law would have come to light. That could take the form of additional case law that the court did not have before it previously.

After dinner, I will review the documents and opine here with an update to this post. At this point, I'm skeptical of whether there is any additional legal authority presented in the briefs.



In addition to the two briefs (linked above), Hauser also filed a Motion to Stay Mathis' reinstatement (with a copy of the AIRC press release saying they plan to resume meeting to address the maps next week). Further, Fair Trust's chief mouthpiece, David Cantelme filed a Motion to Intervene on behalf of House Speaker Andy Tobin.

An "avid reader" of the Arizona Eagletarian sent the following (which includes reference to relevant Rules of Procedure).
The “standard” – ARCAP 22(c) – is similar to what you stated:  “A motion for reconsideration shall be directed solely to discussion of those specific points or matters in which it is claimed the appellate court erred in determination of facts or law.”
 My own take:Brewer’s brief is part “motion for clarification” and part “motion for reconsideration.”
 First, she demands that the court issue an opinion explaining its reasoning:  “The Governor and the Senate have an immediate right to know what this Court intended by using the word “demonstrate.”” (Br. At 3.)   In this section she uses “birther” language typically targeted at Obama:  The courts have USURPED her authority:  “[T]his Court’s usurpation of the Governor’s and Senate’s authority is exacerbated by its failure to provide any meaningful information sufficient to guide their future conduct.” (Br. At 4)
 ……..Hmmm .  I can’t imagine that that will go over well with the AZ Supreme Court members…
  Second, she argues that the Court got the “political question” issue wrong … and doubles down on the purple dress issue (Br. at 7).  (At page 6 she slams the court again, condemning the  “….decision of the Court to seize the Governor and Senate’s constitutional authority …” )
 I haven’t followed the AZ Supreme Court much (though I’m licensed here, I haven’t done much AZ law at all) – but … seems to me that this is more PR for the move to change the Prop 106 process than a sincere attempt to get the Court to change its mind – b/c you don’t accuse someone you want to hear your views of “usurping” or “seizing” your authority ….
 Just some random thoughts ..
Actually, those thoughts are probably not so random. Several others have already mentioned that this is likely aimed not at the Supreme Court Justices. And given that Can't Tell Me has his nose right in the middle of it, the inference seems to be right on the mark.

I have not yet read the briefs, but wanted to get this much up on the blog for now. I will read them and update again this evening.

Regardless of how the briefs read, Howie Fischer reported this evening:
(Brewer's) Press aide Matthew Benson said it is far easier to come up with maps more to the governor's liking -- and, from her perspective, legal -- by having them redrawn by a revamped commission with someone new in charge. He said once those maps gain commission approval, the only remedy is challenging them in court, something which is much more difficult. 
If this doesn't dispel any doubt anyone had about Brewer's reasons for interfering with the IRC, that person simply wouldn't be able to tell the difference between his (or her) elbow and arsehole.


UPDATE 12:15am 11/22/11

From Brewer's Motion to Stay Reinstatement:

This indicates that the public will not have another opportunity to comment on maps and that the existing draft maps created through a flawed, incomplete, secretive and unconstitutional process is what the public will be forced to accept.
Clearly, the governor and both chambers of the legislature, with Cantelme smack in the middle of the mess, are taking an extremely aggressive posture in their pleadings. They cannot reasonably think they will get the decision reversed. They MIGHT get the Court to expedite the writing of its opinion.

The fact that they continue to make outrageous and willfully deceptive claims shows that their main audience is the rank and file GOP activists, tea partiers and any other opponent of independent redistricting they can find.

It also seems pretty clear from these briefs that the governor wants another shot at removing Mathis. Along with the next shot, IF the Court opinion provides enough wiggle room to do it, will come some effort to repeal Prop 106.

If you know people willing to volunteer to collect signatures for a recall campaign against Jan Brewer, send them to Citizens for a Better Arizona. Randy Parraz on Monday, at the Capitol, laid out the need for 5,000 volunteers to each collect 100 signatures. Well, for every volunteer who collects 200 or more signatures, that reduces the number volunteers needed to reach the goal. If people begin volunteering in droves, the drive will have to happen.

Sunday, November 20, 2011

Redistricting -- the REAL MOTIVATION for Brewer's action

Bless his pea-picking little ol' heart, state Rep. John Kavanagh (R-Fountain Hills) graciously reveals the REAL reason for Gov. Brewer's aborted attempt to remove Colleen Mathis from the Independent Redistricting Commission. The date on this report from is November 20th. It runs just under two minutes long.

Redistricting -- weekend scuttlebutt

As of Friday, the day after the three Republicans and two Democrats on the Arizona Supreme Court handed Gov. Jan Brewer a stinging rebuke by reinstating Colleen Mathis to the Independent Redistricting Commission, rumors circulated that a special session of the legislature would be called for Monday or Tuesday. Do they get one free mulligan?

Ever the brash one, state Sen. Frank Antenori (R-Tucson) appeared on talk radio (the Jon Justice Show) Friday morning. He apparently declared that Brewer was re-doing the ouster letter that day and would call a session on Monday. Others doubt the veracity of that claim for two reasons. First, when Antenori makes wild claims like that, he's often (usually?) wrong. Second, since we are now into Thanksgiving week, it's likely there are senators already traveling for the holiday.

Another wrench to throw into that machine, we may not have an explanation of the basis for the Court ruling until sometime in January. We should also note that the Arizona Republic's Sunday editorial admonished the Supreme Court:

The Arizona Supreme Court: The justices need to expedite their opinion so we can understand the basis for it. The current speculation, without knowing the reasoning or the vote count, will only become more divisive and damaging if it drags on.
Of course the Republic in an ever present quest to protect its revenue base, again blames the court for something of which elected Republicans rightfully own responsibility. 

Nevertheless, would Brewer risk political embarrassment from a second rebuke on the same scheme to subvert the independence of the AIRC?  


I also have it on good authority that AIRC Chair Colleen Mathis may not have any purple dresses at this time but don't be surprised if she went shopping for one over the weekend. From the Arizona Republic's Political Insider:

A style makeover for Mathis? ... As he was testing the limits of the governor's authority to remove redistricting commissioners, acting Supreme Court Chief Justice Andrew Hurwitz threw out some far-fetched scenarios. What if, for example, a commissioner showed up in a purple dress that clashed with the governor's style preferences? What if she didn't like a commissioner's haircut? Could she remove the commissioner?
Theoretically, yes, said Lisa Hauser, Gov. Jan Brewer's attorney. That's because the Constitution makes the governor's judgment on the grounds for removal paramount. The governor gets to decide what is "gross misconduct" or "substantial neglect of duty."
So, what are the odds of Mathis, newly reinstated by the court to the Arizona Independent Redistricting Commission, showing up at the next IRC meeting in a purple dress? With a new haircut? Maybe a wig will be in order.
No word yet on hair style changes that Mathis might be considering. 


Speaking of mulligans, the League of Women Voters of Arizona this afternoon called on the governor and legislature, if they make any further attempt to influence the mapping process, to keep from using taxpayer funds to do so. (click to enlarge):

Saturday, November 19, 2011

Redistricting -- false equivalence

In its main editorial for Sunday, November 20, the Arizona Republic invokes -- right from the start -- the fallacy of false equivalence.

Arizona needs a cooling-off period on redistricting.
Republicans are spitting nails over the state Supreme Court's decision to reinstate Colleen Mathis as chairwoman of the Independent Redistricting Commission -- just as Democrats were howling over her removal by Gov. Jan Brewer and the GOP-majority Senate.
The antagonism has reached corrosive levels -- with recall threats and overheated rhetoric -- that eat away public support and respect for our basic government institutions.
Everyone needs to cool it. On all sides.

The issues are NOT EQUIVALENT. Not even close.

What could be the motivation behind this blatant effort to obscure the truth?

If the Republic tells the truth, does it lose readers? How much revenue is at risk?

What IS the factual reality?

Republicans, Gov. Jan and state House Speaker Andy Tobin have issued vitriolic statements completely disrespecting the Arizona Supreme Court.

I am extremely disappointed that the Court has chosen to reinstate a biased czar to the Independent Redistricting Commission. By placing Ms. Mathis back at the helm of the Commission, the Court has substituted its opinion for the voice of the people through those they have actually elected to represent them. The Court has removed the last remaining check and balance on an unelected and unaccountable body that has spent months blatantly and proudly violating open meeting laws, meeting in secret, ignoring voter mandates and placating the Democrat Party and the Obama administration. If this Commission is not put to a stop, the Court’s decision means more secrecy and more gerrymandering from a body that has shown a disdain for the Constitution. Moving forward, I am putting all options on the table in an effort to protect our state from being hijacked by a partisan ploy to demolish the democratic process.
Brewer's rhetoric:
With today’s decision, the court has substituted its judgment and authority for that which the voters specifically assigned to the governor,” Brewer said in the statement. “The chairwoman’s actions to meet in secret, arrange critical votes in advance of meetings and twist the words and spirit of the Constitution have been forgiven – if not endorsed outright. In the coming days, I’ll be considering my options as to how best to proceed.

Brewer and Tobin have a right to their own view. Tobin has a right to be disappointed.

Neither, however, has a right to her or his own law or own facts. And they certainly do not have a right to adjudicate any part of Arizona's Independent Redistricting Commission, impose demands on the commissioners or to do ANYTHING other than to make recommendations to the AIRC.

Arizona Constitution Article 4, Part 2, Section 1 (second half of paragraph 16)
Either or both bodies of the legislature may act within this period to make recommendations to the independent redistricting commission by memorial or by minority report, which recommendations shall be considered by the independent redistricting commission. The independent redistricting commission shall then establish final district boundaries.
The state Constitution does not even grant that right to the governor.

The statements by Tobin and Brewer each take the liberty (steal it, actually, away from the people) of claiming the court decision was contrary to the will of the voters. Those statements could NOT be farther from the truth.

The Arizona Supreme Court apparently LISTENED to and actually CONSIDERED the will of the voters, as cited in the law and in briefs filed by the AIRC, Mathis and various friends of the Court.

On the OTHER hand, the Republic characterizes the indignation -- over what even IT characterized as dramatic over reach by Brewer in her rebuffed effort to remove Colleen Mathis --  as the (IM)moral equivalent of the subterfuge undertaken by opponents of INDEPENDENT redistricting.

The Arizona Republic's management and editorial board must not be allowed to get away with this blatant deception without being called on it.

Make no mistake. The rhetoric responsible for undermining government institutions is coming from the governor and House Speaker. Calling those individuals to account for their statements and conduct is NOT inappropriate by any measure.


More from the Republic's editorial:

Mathis and the two Democratic members of the commission should immediately make it clear that there will be no rush to approve the draft maps, overriding the concerns of the two GOP members.
The commission needs to rework the maps based on public comment. The proposed congressional districts, which enraged Republicans, should be redrawn to eliminate the ugly lobster shape that hooks up Fountain Hills and Colorado River communities.
A decade ago, the first time that the voter-created commission drew district boundaries, the final maps were very different from the draft ones. The commission must be able to find a configuration that has unanimous support, which will help restore public confidence in the process.
The best word to describe this is disingenuous. All five of the members of the AIRC stated explicitly IN PUBLIC SESSION ON THE RECORD that they intended to make substantive changes to the draft maps as a result of public input during the 30 day review period. And the Republic certainly has no moral high ground from which to demand the final maps be passed with unanimous support of the five commissioners.

ALL claims and allusions by the Republic's editorial writer(s) to the contrary can only be fairly interpreted as intending to get readers to believe something other than what was actually said and done.

Redistricting -- McNulty interview with Rachel Maddow

Arizona Independent Redistricting Commissioner appeared on The Rachel Maddow Show on MSNBC on Friday. Her interview and insight was right on the mark.

Please enjoy!