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.

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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.

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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!