Redistricting -- federal court update

Yesterday, in the Arizona Independent Redistricting Commission's lawsuit on the GOP challenge to the legislative district map, parties met at the Sandra Day O'Connor federal courthouse in Phoenix for a case management conference.

I'm still trying to get more detailed information, but thus far I understand that the three-judge panel before which the case will be tried heard arguments on the AIRC motion to have commissioners dismissed as parties to the lawsuit and to have one of the claims in the amended complaint dismissed. That claim asks the federal court to enforce Arizona law. Based on the 11th amendment to the US Constitution, federal courts are barred from ruling on claims against state governments based on state law. I was unable to attend the conference on Wednesday, but I have thus far heard that the court is not inclined to rule on the motion to dismiss until after testimony begins in the trial next March.

Of course, federal court judges are not concerned with how much taxpayer money (in this case from the State of Arizona's General Fund) is spent on legal fees. Instead, these judges probably recognize this area of law is currently "underdeveloped," and therefore should be litigated.

This brings us to the issue of tomorrow's AIRC meeting. Much of the meeting (scheduled to start at 11am) will probably be conducted in executive session to confer with counsel about all of the pending litigation. Executive director Ray Bladine will also discuss financial issues including the likelihood of needing to request a current year supplemental appropriation when the 2013 legislative session begins (the session starts January 14) and how much to ask for in a FY2014 appropriation request.

Redistricting -- Meeting on December 21

Unless precluded by the impending apocalypse, the Arizona Independent Redistricting Commission will meet at 11am Friday December 21, at its office, 1100 W. Washington St., Phoenix.

At this point, it looks like the meeting will be attended telephonically by several of the commissioners. There will be no streaming video and at least part of the meeting may be conducted in executive session to confer with counsel.

There are two agenda items: report from legal counsel about the recent Appeals Court opinion on the open meeting issue/seeking advice on pending lawsuits; and executive director Bladine reporting on financial issues, including review of current year (FY2013) budget, request for a supplemental FY2013 appropriation and requested FY2014 appropriation request.

I will keep you posted.

The time to ACT is NOW.

Unless you were asleep all weekend, you already know that a gunman killed 20 children and six adults in Newtown, Connecticut on Friday before shooting himself in the head.

In addressing an interfaith memorial service last night in Newtown, President Obama noted that this was the fourth such mass shooting in America since he first took office.

Several aspects of American culture and society are -- without question -- factors in this epidemic of mass shootings in the US.

We may or may not be able to do anything right away to change popular culture that gives these monsters the notion that one can solve his problems with horrendous violence.

But we CAN act now to bring swift change to minimize the possibility this could ever happen again in America.

It's now three weeks shy of two years since Arizona Congressman Ron Barber (D-Second District) was among those shot by a young adult male with a particular serious mental illness in Tucson.

Because Barber was re-elected last month, could there be anyone better positioned to take the lead on public policy changes that can stop these incidents from ever recurring?

Yesterday, the Arizona Republic published Barber's op-ed reflecting on the latest incident.

Information is emerging about the mental health of the Connecticut gunman. It is irresponsible to dismiss untreated mental illness as a factor in several recent mass shootings. We have it within our power as a nation to resolve these issues. It is important to remember that the overwhelming majority of people dealing with mental illness are not violent...

After I was wounded almost two years ago, I took steps to address the mental-health issue head-on. My family and I founded the Fund for Civility, Respect and Understanding, and our first priority was to increase community awareness and to remove the stigma that prevents many people from getting treatment for a mental illness.

This year, I co-sponsored the Mental Health First Aid Higher Education Act, which would provide training to help people identify and respond to signs of mental illness and deal with psychiatric crises. The bill did not pass this year, but I am committed to reintroducing it next session. We also must protect state and federal funding for mental-health services.

There are many other factors that can produce a violent tragedy. But we do know that the availability of certain weapons coupled with mental illness is a recipe for disaster. (emphasis added)

Thinking about this tragedy all weekend, a number of things become clear to me.

Apparently, there actually IS evidence demonstrating that making it harder to obtain firearms dramatically reduces injury and death from firearms. After mass shootings in Australia in 1996, firearms regulation was reformed. According to a 2006 study on the issue:

After a 1996 firearm massacre in Tasmania in which 35 people died, Australian governments united to remove semi-automatic and pump-action shotguns and rifles from civilian possession, as a key component of gun law reforms.

Australia’s 1996 gun law reforms were followed by more than a decade free of fatal mass shootings, and accelerated declines in firearm deaths, particularly suicides. Total homicide rates followed the same pattern. Removing large numbers of rapid-firing firearms from civilians may be an effective way of reducing mass shootings, firearm homicides and firearm suicides. 

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An op-ed column in the Sydney Morning Herald reflects on the issue of firearms availability:

Too many lethal weapons are too easily available to too many people. Most US states have no owner licensing or gun registration, no requirement to provide a good reason to own a gun, no ban on semi-automatic assault weapons, and no limit on the number of such guns a person can own.

Australia has all of the above, thanks to the reforms to our gun laws after the 1996 massacre at Port Arthur in Tasmania. That contrast is why the rate of gun death in the US is more than 10 times the rate in Australia.

Port Arthur was the tipping point for Australia, after many years of avoidance by politicians who knew the gun laws needed reform but lacked the guts to do it. The murder of 35 people on one afternoon marked the end of the prevarication. The laws were overhauled with resounding success: annual gun deaths have dropped by half, and we have not had a mass shooting since 1996. An evaluation by researchers at the Australian National University found the laws saved, every year, 200 lives and $500 million.

Other developed countries that have suffered such calamities have also toughened their gun laws. The massacre at the Sandy Hook Elementary School reprises the tragedy at Dunblane Primary School in Scotland in 1996, where 16 children and their teacher were murdered and 12 more children wounded by a disgruntled man with a gun. The only eventual glimmer of consolation for those grieving families was that Britain reformed its gun laws, and it is extremely unlikely that such a horror will recur in that country.

So, evidence DOES show the clear correlation between easy availability of firearms and mass shootings. 

When the gun fetishists invoke the canard that "when guns are outlawed, only outlaws will have guns," it will be important to stay focused and on point.

The first steps that need to be taken do NOT outlaw all guns. Sen. Dianne Feinstein has announced that she will introduce, reportedly on the first day of the 113th Congress, an assault weapons ban. And Rep. Barber intends to re-introduce the Mental Health First Aid Higher Education Act. Neither bill, as specified so far, will go far enough.

However, if Americans demonstrate resolve on this issue and show unwavering support for Members of Congress who dare to defy the National Rifle Association, other changes can be made in short order.

It is well past time to mandate background checks for ALL firearms sales, ESPECIALLY at gun shows. Waiting periods are also warranted.

NONE of these steps breach the rights of citizens spelled out in the Second Amendment of the US Constitution.

Two steps that you and I can take right now:

• Publicly pledge to vote against ANY state or federal lawmaker who accepts ANY donations from the NRA.
• Sign on to the petition calling for Congressman Barber to take the lead in addressing the epidemic. 

Change.org|Create a Petition

How long will it take to forget this time?

Insanity: doing the same thing over and over again and expecting different results.

That quote is often attributed to Albert Einstein. It doesn't matter to me who first coined the expression. However, I do care that we can reasonably attribute lack of action on the problem of gun violence to a mythology that has paralyzed American society.

There are academics and journalists in the US who have studied our country's gun culture. It would be redundant for me to reiterate the statistics on mass shootings, domestic violence, mental illness, and economic despair. Are those things at all related to preventable tragedies?

When will YOU decide that SOMETHING must be done?

Complex problems cannot be solved by unthinking, knee-jerk reactions. The problem of gun violence in America is complex. Complex solutions must be discussed and implemented. People with far more insight than what I have must get involved.

I can keep insisting that something be done. So that's what I hope to do.

If the NRA and commercial firearms interests want to be involved in the discussion, we should demand they move beyond today's prevailing mythologies. 

Is American society "insane" to allow ANYONE to invoke the mantra "the solution to gun violence is to have more guns?" When will we realize that the only result of such invocations has been to drop the issue until the next mass shooting?

When will YOU decide that something DIFFERENT must be done?

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Just in case it wasn't obvious, I do NOT know what will ultimately mitigate the problem of gun violence in America. I do not advocate "taking away all of our guns." I do think that perhaps one major obstacle to development of workable solutions is people fear that talking about solutions will lead to gun bans. We have to get BEYOND that fear.

Redistricting litigation update(s)

Since we last met (or since I last wrote about Arizona's independent redistricting), a number of things have taken place in lawsuits pending in federal and state court.

The Arizona Court of Appeals on Tuesday issued a 59-page opinion affirming the Superior Court ruling that Attorney General Tom Horne had no justification for his 2011 witch hunt (investigation into possible Open Meeting Law violations).

The IRC has the capacity and standing to bring this action for declaratory and injunctive relief. As a matter of law, the OML [statutory Open Meeting Law] applies to the IRC. The communications alleged in the petition for enforcement, insofar as they pertain to hiring the mapping consultant, are not protected by legislative privilege. There is, however, no reasonable cause to support the OML investigation. We affirm the superior court's entry of summary judgment in favor of Appellees [AIRC] and the injunction against further investigation under the OML of the acts alleged in the petition for enforcement. (emphasis added)

The opinion is 59 pages long because the court went into painstaking detail on what, where and why the AIRC is and is not subject to the Open Meeting Law spelled out in Arizona Revised Statutes. Boiled down to its essence, however, the AIRC is subject to OML except and to the extent the statutes conflict with the Open Meeting Clause in the constitutional language about the commission.

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In my most recent previous post on redistricting, both parties to the federal court challenge to the state legislative district maps had signed a proposed case management plan that presented an overview of the case and what each side believed the other needed to prove in order to prevail. A key point of that proposed plan is that the AIRC stated it needs more time to adequately prepare than the proposed March trial dates would allow.

Yesterday, Judge Roslyn Silver issued a 4-page order setting forth a firm March 25, 2013 trial start date, specifying other parameters for pre-trial preparation and noting a case management conference to be held at the Sandra Day O'Connor federal courthouse in Phoenix on Wednesday, December 19 at 4:30pm. Among the matters to be discussed at next Wednesday's conference is whether the Commission or any of its members should be dismissed as defendants in the case.

Silver also notes that parties must be prepared Wednesday to discuss the issues raised in the AIRC motion for judgment on the pleadings (filed Dec 3). That motion asks the court to dismiss the commissioners as parties to the lawsuit and to dismiss the second claim for relief. From the motion for judgement on the pleadings:

The second issue necessitating review is the State of Arizona’s Eleventh Amendment immunity for the Second Claim for Relief, which seeks to enjoin state officers to conform their conduct to state law. The Eleventh Amendment prevents a federal court from entertaining, without the State’s consent, “a claim that state officials violated state law in carrying out their official responsibilities.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984)*. The Commission is asserting the State’s Eleventh Amendment immunity** over Plaintiffs’ Second Claim for relief.

The second claim for relief, in the second amended complaint asks the federal court three-judge panel to declare the legislative district map in violation of the Arizona Constitution. However, the 11th Amendment bars federal courts from using state (Arizona) law to rule against states (Arizona).

ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) requires the IRC to draw legislative districts with equal population to the extent practicable. The IRC could have drawn legislative districts that achieved the ideal population had it wanted to do so, just as it did with congressional districts. To do so, however, would have prevented the McNulty/Herrera/Mathis bloc from maximizing the number of Democratic-plurality districts. As a result, the McNulty/ Herrera/Mathis bloc deliberately defied the equal population requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) for the sole purpose of maximizing the partisan interests of the Democratic Party. The Final Legislative Map therefore violates the equal population requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B), and thereby injures Plaintiffs, and each of them, and is null and void.

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In the Congressional district map challenge (currently before Maricopa County Superior Court Judge Mark Brain), documents filed last week include the AIRC response to the second amended complaint (17 pages); a motion to dismiss claims three and six of the second amended complaint (7 pages); and a stipulation to dismissal of the first claim of the second amended complaint (3 pages).

The second amended complaint, to which these three documents refer, is found here.

The stipulation simply recognizes that Judge Brain had dismissed that particular claim and plaintiff's counsel (Hauser) wanted to reserve the right to appeal that particular dismissal.

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*Note (partial quote from 4Lawschool.com)

Ct. Majority: When a suit is brought against a state official,  it is brought against the State itself.  Whether the parties are seeking injunctive relief or actual damages before a Fed. Ct., a suit against state officials on the basis of state law, cannot be entertained.  The state is the real and substantial party at interest, and therefor, the state immunity under the 11^th is preserved.

**Note (partial quote from the June 2010 Harvard Law Review article on the 11th Amendment by Bradford R Clark):

The traditional “immunity” theory, currently embraced by a majority of the Supreme Court (but few academics), argues that states enjoy broad constitutional sovereign immunity beyond the terms of the Amendment. Proponents of broad immunity regard the Amendment’s text as unacceptably underinclusive because it bars suits only by out-of-state citizens. In Hans v. Louisiana, the Court famously characterized a citizen’s suggestion that “[t]he letter” of the Amendment left him free to sue his own state as “an attempt to strain the Constitution and the law to a construction never imagined or dreamed of.” In the Court’s view, the purpose of the Amendment was to bar all suits by individuals against states.

Arizona UPRISING -- Maricopa County Democratic Reorganization

Congratulations are in order for the Maricopa County Democratic Party, citizens and voters. Precinct committeepersons this morning elected Laura Copple to serve as chair for 2013 and 2014.

Laura's a grassroots superstar. She knows how to build relationships, encourage people (young and old, rich or poor, etc) and get the job done. But she is NOT (all by herself) the be all or end all to MCDP and she will not be alone in the quest to turn Maricopa County and Arizona BLUE.

More than 250 Democratic activists showed up this morning and gracefully handled a democratic election with multiple candidates for the chair and vice-chair positions. Each candidate (and those who nominated them) made a pitch. The vote totals and margins were neither razor thin nor absurdly lopsided. To me, this means there was a healthy level of disagreement along with a reasonable way to handle the importance of the decisions those votes represented.

While there had been discussion of concerns over the last few weeks regarding the 2012 election season, there was no undercurrent of acrimony or hostility. Of course, there were also very real electoral victories.

I believe Copple's willingness to listen to and work with those who brought (or will bring) up concerns has already gone a long way toward addressing those concerns.

I have FULL confidence in the entire body of Precinct Committeepersons, activists and executive committees of each Democratic legislative district group in Maricopa County that the vision and collective talent will be immediately focused on building for a successful 2014 election season.

Steven Slugocki, who has served as MCDP treasurer for the last two years, was elected First Vice-Chair. His experience will be a tremendous asset in the transition for the new executive committee. He has contagious enthusiasm and high level of energy.

Kristin Foster, a PC in LD17 and teacher in South Phoenix schools was elected Second Vice-Chair; Dan Trozzi is the new Treasurer; Jacqueline Sandoval was elected Sargeant-at-Arms and Robert Donat is the new MCDP Secretary.

Each brings new enthusiasm to the MCDP, but I am particularly excited about what I believe Robert Donat will do to revamp and update the website to make it easier to feel connected to each other in our mutual endeavor over the next two year period.

Longtime Democratic activist Carol Corsica also spent some time talking (informally, afterward) about the history of standing and ad hoc committees and recruiting for prospective committees. She is particularly interested in election integrity. She invited people to contact her if they are interested in learning more.

There are provisions in Arizona statutes for volunteers to be more actively involved in polling place monitoring. But to take advantage (and minimize problems like we saw with unacceptably high levels of provisional ballots last month), volunteer recruitment and training has to begin well ahead of the next election dates.

By the way, one concern that had been brought up recently is that "patting ourselves on the back" for how the 2012 election ended up might cause a let down in goals and expectations. Nobody I know is satisfied, however, with the fact that voters in Maricopa County re-elected its notorious nativist sheriff.

Ann Wallack and the 2011-2012 MCDP executive committee and volunteers did a tremendous job. But EVERYBODY is hungry to "take it to the next level."

On Wednesday, Copple described her vision for GOTV (Get Out The Vote) when speaking to a meeting of Democracy For America -- Maricopa County. In legislative districts with strong Democratic voter advantage, if those voters do not turn out (perhaps believing it is not necessary because their state lawmakers are unopposed in the general election), that adversely impacts the chances for our candidates in statewide (or countywide) races. Needless to say, she sees this as a key opportunity to enhance Democratic electoral performance.

The bottom line is that together WE can make a difference and change the political culture in Arizona.

Make no mistake, Republican state lawmakers are UNLIKELY to seriously moderate their quest to enact draconian legislation that infringes on individual liberties (for example, like last year, under the guise of religious freedom for corporations), attacks on social safety net programs and diminishing worker rights (under the guise of making Arizona more favorable for companies to bring jobs to our state).

With the GOP continuing to move in that direction, opportunity for Democrats to elect common sense candidates who will actually represent the PEOPLE will be better in 2014 than it was this year.

Arizona UPRISING -- Reorganize, Regroup, Reenergize

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. -- Theodore Roosevelt, at the Sorbonne, Paris, France 1910

Of course, it is still easier to see where others are mistaken than to recognize our own foibles and folly many times. And in politics, the game is all about conflict anyway.

Now that it is time for grassroots political groups to reorganize, at least here in Arizona, it is also a good time for serious reflection and robust discussion. I'm thankful for what Arizona Democrats accomplished in the 2012 general election. But I'm also keenly aware that there were big blunders and there was and is plenty of room for improvement.

How do we get where we need to go? How do we become the change we want to make happen?

MIT senior lecturer Peter Senge's book, The Fifth Discipline: the art and practice of learning organizations, is considered "seminal" by management experts and those who teach leadership of various types of organizations. The book's page on Amazon.com describes it thus:

This revised edition of Peter Senge’s bestselling classic, The Fifth Discipline, is based on fifteen years of experience in putting the book’s ideas into practice. As Senge makes clear, in the long run the only sustainable competitive advantage is your organization’s ability to learn faster than the competition. The leadership stories in the book demonstrate the many ways that the core ideas in The Fifth Discipline, many of which seemed radical when first published in 1990, have become deeply integrated into people’s ways of seeing the world and their managerial practices. 

What we have today, in the current reorganization environment, is a challenge to take what has been the reality of the organization(s) (the Arizona Democratic Party; the Maricopa County Democratic Party (and other county party organizations) and legislative district party groups -- then define the vision of what we will make happen, conduct the learning that it will take to get the end result to materialize as a result of the cooperative work of volunteer activists throughout the state.

I will have more to write on this subject, hopefully in the next day or two.

I will also set forth bits and pieces of analysis of election results, comparing those election results with voter registration rolls and the efforts of activists making calls, knocking on doors and getting people to the polls.

With the partial results that I have posted thus far, I have not taken the time to expound on what the vote totals mean when compared to voter registration. It is those analyses that will provide guidance for developing goals, strategies and tactics for the next two years (election cycle).

On Saturday morning, we will begin to hear from candidates for various leadership positions, ultimately choosing the executive team for Maricopa County Democrats. I am confident that we will have good people with solid Democratic values who will provide excellent leadership.

In the meantime, however, people with concerns about how the last election cycle unfolded will articulate their concerns and hopefully also ideas for improvement will begin working on that plan. They (we) will, ultimately (hopefully) grow to care deeply about each other and become teams willing to LEARN and GROW together to change the political culture of our great state.

We WILL persist until we succeed.

Party activists untie... er, UNITE!

Or something like that.

Back in the day, testing telecommunications systems during my enlistment in the US Air Force, we would send the message, "Now is the time for all good men to come to the aid of their country," to a distant terminal, hoping it would get there without being garbled in between.

Nearly forty years later, I'm USING telecommunications systems more than testing them. And I've been a Democratic Party activist for the last couple of years. So, it's more than just a test to see if the message gets garbled up before it reaches its destination.

Now IS the time for all good people to come to the aid of their (state and county and local district) country.

Soon, it will be time to analyze the election results (the official canvass is due to be signed by the Secretary of State and the Governor, and posted online on Monday).

Comparing voter registration numbers with the election results will provide important insights. That will be a good place to start the next step in grassroots political (party) activism.

The 113th Congress will convene on January 3rd and the 51st Arizona Legislature on January 14, 2013.  The next election for lawmakers hoping to serve in each will take place on November 4, 2014.

But grassroots activists do not take the year 2013 off.

The last few months of the 2012 primary election season (which coincided with the long hot Arizona summer) exposed issues that became difficult to address at that time.

Namely, that the Democratic party failed to field candidates for a number of key elected offices. Yet, for others races, multiple Democratic candidates exposed other problems, like whether Party officials could, should, or would support particular candidates in those contested primaries.

At the time, it occurred to me that many of those questions could not be appropriately addressed in the middle of the situation(s). So, when should they be brought up? That brings us to Party reorganization time. Which is now.

I'm not conversant on bylaws and rules or regulations for running the Party. I don't even know if the bylaws or other written documents are the proper place to provide for guidance on addressing the foreseeable problems.

Next Saturday (12/8) , the Maricopa County Democratic Party meets so that elected Precinct Committeepersons can elect new leadership. It occurs to me that THIS might be THE time to work out the hows and the whys and the wherefores to decide how inevitable tensions (reasonably expected in the Spring and Summer of 2014) are properly anticipated and addressed when they do arise.

Fellow activists groused from time to time about the fact that no Democrat challenged Republican County Attorney Bill Montgomery in his re-election campaign. Besides failure to field candidates for all open offices/seats, the other big problem was the deep divide that occurred because of the contested primary between Paul Penzone and John Rowan to see who would challenge Maricopa County's controversial nativist sheriff.

Wouldn't it be better to have a robust discussion NOW than when history repeats itself in 2014?

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All of that leads me to address an op-ed column the Arizona Republic ran in its December 1 (Saturday) edition written by Nomiki Konst.

I was immediately intrigued when I first read this Friday night. But not necessarily in a positive way. The very first thing Ms. Konst says is that "Arizona Democrats blew it."

"Wow," I thought. "What on earth does she mean?"

Of course, I knew that results for the only statewide races for public office in our state were disappointing for Democrats. Come January, when all five members will be Republicans, the Corporation Commission becomes a wholly owned subsidiary of ALEC. That SUCKS big time.

Then there was the opportunity Democrats had to have former US Surgeon General Richard Carmona represent us in the US Senate. However, having closely observed quite a bit of that race, it is apparent to me that simply claiming that "they" blew it does more to spread a cloak over the situation than to illuminate it.

I don't know that I am qualified to definitively pronounce the reason(s) why Arizona hired a former mining industry lobbyist (Flake) to represent us in the Senate, but I'm confident there's a whole lot more to it than just "they" blew it.

Should we really believe there were NO factors other than what the Arizona Democratic Party could control? Just how big of a role did Citizens United and SuperPACs play? I don't have those answers, but legitimate understanding can only be had by delving into the data.

Here's a first glance, according to unofficial vote counts posted by the Arizona Secretary of State:

• Richard Carmona (Dem) 1,036,542 (46.16 %)
• Jeff Flake (Rep) 1,104,457 (49.18%)
• Marc Victor (Lib) 102,109 (4.55%)
• None of the above (aka, Write-In) 2,501 (0.11%)

Voter turnout: 74.36 % 

Final voter registration numbers for the 2012 General Election: 

• Democrat 952,931 (30.5 %)
• Republican 1,120,992 (35.88%)
• Green 4,863 (0.16%)
• Libertarian 22,086 (0.71%)
• Americans Elect 237 (0.01%)
• Other 1,023,603 (32.76%)

Total active voter registration -- 3,124,712

Clearly, in spite of a LOT of SuperPAC money pouring into Arizona, Democrats didn't fare as badly as Big Money had hoped. I'll save further analysis for another time.

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Okay, let's get beyond the fact that the brash Ms. Konst had to know she was going to make Arizona Democrats defensive from the start. Whether they (we) rightfully should be defensive is a different question altogether. The net result of Konst's opening salvo is that whatever insight she might present will be met with, at best, skepticism.

But let's take a look at her claims.

Starting out with HUGE generalities, she says President Obama won because he

constructed a coalition of new voters. Nationally, Republicans lost because they didn't get this message -- but neither did the Arizona Democratic Party. 

Really? I've not seen ANY analysis of national voting data providing legitimate insight or a demographic profile of the "typical" Obama voter. While Democrats picked up a couple of seats in the Senate, the US House will still be run by John Boehner and the GOP.

Where exactly does Konst come up with her claim that Democrats in Arizona are making excuses such as that Hispanics do not vote? Or that messaging was ineffective or organizational strategies were weak?

On November 18, I published my initial, very cursory analysis of the results of Congressional districts 1, 2, and 9 races. (Last night I updated the vote totals with the latest data from the Secretary of State's website). The three districts were the only ones with voter registration balance that provided any possibility of a competitive contest.

Based on the data in that post, and the fact that Democrats picked up a few seats in each chamber of the state legislature, I believe Ms. Konst to be VERY FAR off the mark in her characterization of the election outcome.

Political Scientist Jennifer Steen, an assistant professor at Arizona State, specializes in analysis of election and voting data. She told me:

My take is that the three “competitive” districts are indeed competitive and could have been won by either party... The five Democratic winners will all enjoy the advantage of running as incumbents in 2014; however, it will be a midterm election with a lame-duck Democrat in the Oval Office so if the GOP nominates strong candidates with broad appeal in any or all of the three competitive districts...

... it is possible the Republicans could retake the majority of our state's House delegation.

Let's step back a bit. From a critical thinking look at Konst's column, she cited NO DATA on ANY of her claims. She made specific accusations against the chair of the Arizona Democratic Party as well as the Pima County chair. She said her volunteers were threatened. She stated what she thinks Party officials are using as excuses, but cites NO source for quotations. Of course, there are several other holes in her "logic" and "reasoning."

Let's change direction for a moment. Konst says the party has but one duty -- to grow. Okay, well, outside of the fact that she has not made a case for her being a voice of authority, growth is STILL very important. What ideas did she provide to make that happen?

Did she, instead, really just unload on Arizona and Pima County Democrats out of frustration and unrealistic expectations for not getting support to which she felt entitled -- in her quest to become the youngest Member of the 113th Congress? Besides vigorous debate about the direction of the Democratic Party, this is also a good time to spell out what potential candidates should be ready to bring to the table and what they can reasonably expect from the Party.

Having never heard of this brash young lady before reading her letter, I turned to Google to learn more. I found that she has been published on Huffington Post. Her HuffPost bio says she's "a former 2012 Congressional candidate for Arizona's second district. [sic]" Her personal website says:

Nomiki (Nomi) Konst was recently a Congressional candidate for Arizona's second district. Running in the district formerly held by Rep. Gabrielle Giffords, at 28-years-old, Konst was vying to be the youngest woman to ever serve in Congress.​ Currently, Konst is a political strategist and organizational and start-up strategist.

I have to give her credit for being willing to take risks*. She is young and she is brash. My impression of her op-ed is that she is both mistaken and expressing frustration.

Friday night I posted the column to facebook and asked my friends for their impressions. Most read the naivete and sour grapes aspect of it without me having to expound on it. But a couple of people said they agreed with her on a point or two anyway. Clearly, young people with drive and ambition are worth having in the Party. I'm not sure how realistic it is to allow her to be "the" leader, but she has as much of a right to have A voice as I do.

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Apart from analysis of what Konst wrote, I have to wonder why the Arizona Republic decided to publish Konst's op-ed. On the surface, one possibility is that they saw it as an opportunity to bolster the paper's bona fides with its conservative subscriber base. Because it seems obvious that the GOP would relish the thought of turmoil and division among Arizona Democrats, and the potential for this letter to the editor to cause tension certainly is pretty high also.

Of course, the Republic MIGHT have had altruistic motives and simply wanted to give Arizona Democrats the chance to change our ineffective ways. Hmmm... right.

Nevertheless, all politics is about conflict. We certainly do not increase our chances of winning by shying away from disagreement. Instead, let's use this to generate robust discussion and ideas to do better in the next election cycle.

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* "Only those who dare to fail greatly can ever achieve greatly." -- Robert F. Kennedy

Redistricting -- Federal court trial schedule

Last night the Associated Press reported that the Arizona Independent Redistricting Commission told a federal court that it cannot properly prepare for trial before the proposed March 2013 trial date for the lawsuit challenging the new legislative district maps.

Arizona's redistricting commission is telling a federal court that it'd be too much of a rush to schedule a late March trial on a lawsuit challenging the state's new map of legislative districts.

A three-judge panel had said the case should go to trial by late March so it can be resolved in time to avoid disrupting the 2014 elections.

But the commission says there are critical pretrial issues that first must be resolved, making a June or July trial more realistic.

The case filed on behalf of 11 Republican voters contends that population variances between some districts dilute votes in violation of constitutional protections for equal protection under the law.

Today, I obtained the joint case management plan filed by counsel for both sides along with a proposed Scheduling Order they hope to have Judge Roslyn O. Silver sign.

The case management plan sets forth succinctly (well, 21 pages succinctly anyway) the positions of both the plaintiffs (GOP whiners) and defendants (the AIRC) as well as issues that apparently must be proven in order for plaintiffs to obtain a favorable judgment. It's actually pretty interesting, if you're into legal stuff (and redistricting).

Plaintiff's position:

This action is brought by Plaintiff Arizona qualified electors to challenge the final map of Arizona legislative districts (“Final Legislative Map”) approved by the IRC on or about January 17, 2012, on the grounds that the legislative districts created by the IRC violate the one-person/one-vote requirement of the equal protection clause of the Fourteenth Amendment to the United States Constitution, and violate the equal population requirement of ARIZ. CONST. art 4, pt. 2, § 1(14)(B), by systematically overpopulating Republican plurality districts and systematically under-populating Democrat plurality districts with no lawful state interest justifying such deviations from equality of population among Arizona legislative districts. Plaintiffs further adopts by reference the positions and arguments it made in the briefing of the motion to dismiss the amended complaint.

Defendant's position:

The basic nature of the case was briefed, with legal citations, and argued to the Court in the Commission’s Motion to Dismiss, and reflected in the Court’s ruling on the motion. The Court succinctly states the issue for trial in the first paragraph of its Order, November 16, 2012.

Current issues and defenses in the case are set forth in subsections (3) and (6) below. The Commission contends that the Final Legislative Map neither violates the equal protection clause of the Fourteenth Amendment, nor the equal population “to the extent practicable” goal in the Arizona Constitution. The Commission meticulously followed the four-step procedure prescribed by the Arizona Constitution, and carefully considered each of the factors set out in the Arizona Constitution. The manner in which the Commission conducted itself is detailed in lengthy transcripts of public hearings, with numerous opportunities for public comment. Judgments that the Commission made with respect to each of these factors--including judgments made as to the Voting Rights Act, policy determinations as to the practicable extent to which each factor could be furthered, and policy considerations as to the creation of competitive districts that would not create a significant detriment to other factors--present political and non-justiciable questions to the federal courts.

Each side also sets forth what it believes it must prove in order to win a favorable judgment.

Plaintiffs believe they must (and can) prove:

Accordingly, Plaintiffs must prove (A) the legislative districts deviate from equality, (B) the adjustments the Arizona Constitution authorized did not cause the deviations from strict equality, (C) deviations from equality are not the incidental result of adjustments made to attain legitimate state interests, and (D) no legitimate State interests justify or warrant the IRC’s deviations from equality.

Plaintiffs [also] must prove (A) it was practicable for Defendants to draw legislative districts with equal population (which is what they did with the Grid Map and with the Congressional Map), and (B) Defendants failed to carry out this duty.

In the first paragraph (above), while it might be a simple thing to prove the legislative districts do not have the same population (pursuant to the 2010 Census), it's an entirely different matter to prove population adjustments were not for purposes allowed by the Arizona Constitution.

In the second paragraph (Plaintiff's second claim for relief), proving whether it was practicable for the AIRC to make all legislative districts of equal population seems even more subjective.

On the other hand, Defendants believe:

Accordingly, to make out an Equal Protection Clause challenge, Plaintiffs must show that the Final Legislative Map was “arbitrary or discriminatory.” To meet that burden, Plaintiffs must show that any deviation is “an arbitrary or discriminatory policy,” and that the asserted “unconstitutional or irrational state policy is the actual reason for the deviation.” 

On the facts alleged in the First Amended Complaint, Plaintiffs must prove that “the Commission systematically overpopulated Republican Districts and under-populated Democratic Districts for the sole purpose of maximizing Democratic strength in the state legislature.” Id. at page 5. Plaintiffs must prove that the “Commission added to some people’s votes and diluted other people’s votes based only on their expected party preference.”

Defendants contend that the Second Claim for Relief is barred from being heard in the federal courts by reason of the Eleventh Amendment.

Defendants contend that the equal population requirement of the Arizona Constitution is coextensive with the requirements of the Fourteenth Amendment Equal Protection Clause with respect to state legislative maps. Compliance with the Arizona Constitution’s requirement that state legislative districts have “equal population to the extent practicable” is as flexible as the federal constitution and the federal requirements permit.

“[G]oals (A) and (B) either expressly or implicitly mirror the requirements of the United States Constitution or federal statutory law, and compliance with these goals can be decided as a matter of objective law."

To make a claim, Plaintiffs must show that the Commission adopted a final plan that did not comply with substantive constitutional requirements. Id. at 596 ¶ 24, 208 P.3d at 685. As the procedural requirements of the Arizona Constitution were complied with, the issue requires that “the party challenging the redistricting plan demonstrate that no reasonable redistricting commission could have adopted the redistricting plan at issue.” Id. at 600 ¶ 45, 208 P.3d at 689.

Plaintiffs misstate the elements of a claim. “[T]he fact that a ‘better’ plan exists does not establish that this plan lacks a reasonable basis.” Id. at ¶ 46.

To read more and get the entire context, the links are provided (above).

For icing on the cake, the Eastern Arizona Courier yesterday published an op-ed column specifically critical of the Republican plaintiffs in this lawsuit. It begins:

Arizona Republicans raise the cost of government more than they save taxpayers’ money.

The proof to that statement was further evidenced Monday when a federal judge agreed to listen to Republican arguments that the most recent redistricting was unfair. This is a waste of precious federal court resources, paid for with tax dollars that shouldn’t be spent on an argument that has no merit.

Republicans being unfairly treated due to the work of the Arizona Independent Redistricting Commission in 2011? Republicans losing elections due to district boundaries that were drawn through a process tainted by allegations of conspiracy?

Let’s look at the recent "losses" of a party that still hangs a red flag majority over the State Legislature and state administration.

Quite poignant for a paper whose readers are mostly Arizona Republicans.

But don't expect the plaintiffs (which include former state Rep. Ted Carpenter and the wife of Senate President-elect Andy Biggs(hot)) or plaintiffs counsel (David Cantelme) to be at all concerned with what a community newspaper in rural eastern Arizona says about them.

Frankly, it would surprise me if any political pressure from newspapers or citizens in general would make these Arizona Republicans give way to common sense on this matter.

There must be a bug someplace! UPDATED 8:10pm MST 11/27/12

It's not just your computer!

It appears that somehow text from a letter published by the Arizona Republic was inserted into the main page of the Arizona Eagletarian blog. I am working on figuring out how to fix it.

In the meantime, you should be able to read the entire text of any post on this blog by clicking on the blog post title/headline and bringing it up on its own page.

I apologize for the inconvenience.

UPDATE

Who ever hacked the Arizona Eagletarian did not succeed in keeping it down. 

We are back to normal. 

Arredondo saga continues

Republished from last night.

I just caught wind of the "latest update" regarding the vacant seat in the Arizona House of Representatives for the old Legislative District 17, in the wake of the Ben Arredondo's October resignation.

The Arizona Capitol Times reported today:

The Maricopa County Board of Supervisors has decided not to appoint a temporary replacement for former Rep. Ben Arredondo, who resigned on Oct. 9 after pleading guilty to federal criminal charges.

The board, which comprises four Republicans and a Democrat, was prepared to select Rep.-elect Juan Mendez to finish the last few weeks of Arredondo’s term in Legislative District 17. But the item was pulled from the board’s Nov. 26 scheduled meeting after Mendez, a Tempe Democrat, had second thoughts, realizing the short-term appointment would be considered a full term under Arizona’s term-limit laws.

Board spokesman Richard de Uriarte said although there were two other nominees for the appointment, the board’s consensus was to pick Mendez, since he won election Nov. 6 to the House in the new Legislative District 26, which includes large parts of LD17.

De Uriarte said the Legislature will save money without the short-term appointee and there is no urgency to choose Arredondo’s replacement since there is no special session.

“You have to wonder what’s the point,” de Uriarte said.

Arizona statutes say the Board of Supervisors “shall” pick a replacement from three nominees, but de Uriarte said there is no time limit.

However, de Uriarte told me this evening that when he spoke with the Capitol Times (last Wednesday), the Board was still undecided even though the item had been pulled from the agenda for the Monday (earlier today) meeting. The Board spokesman says that status remains unchanged this evening.

He did tell me that the Board has "no enthusiasm" for making the appointment, but the door remains open at this time. 

State Sen.-elect Ed Ableser (D-LD26), who currently holds the other LD17 seat in the Arizona House has said he would like to see someone appointed to assist with constituent services in the interim.

Happy Thanksgiving -- the fight resumes momentarily

Indeed, I (we all) have plenty to be thankful for right now.

Here's some of what comes to my mind when I think thankfully:

• Wonderfully imperfect but still wonderful family, not the least (wonderful) of whom are my daughter and son-in-law Amy and Travis, their daughter Abaigeal and my soon to be first grandson (due in March 2013) Connor. I'm thankful Travis and Amy love each other as well as Abaigeal. There are plenty more (family members) but I don't think any of them read this blog anyway. If they tell me they do, I will update by making the list of names longer.
• An extended family of sorts with whom I advocate for egalitarian public policy, especially Democratic friends in Arizona's Legislative District 26, as well as the numerous people I've come to know and admire as a result of the 2011 Independent Redistricting process.
• For an open and egalitarian internet/world wide web with and by which it is available (because of Net Neutrality) to publish essays and other writings widely (notably via the Arizona Eagletarian blog); and for social media that connects millions of activists and enables movements like Occupy Wall Street to get the word out in spite of the efforts of Corporate Media worldwide to stifle progressive populism.
• For the re-election of Barack Obama. He is an imperfect President but the best available choice this year. And for the social media that will hold his feet to the fire so as to encourage him to do the best he can for all of America.
• For the election of Elizabeth Warren to the U.S. Senate. It was a symbolic victory and holds the hope, along with election of other women to that chamber of Congress, of a more fair and egalitarian economy and society so that America's REAL Job Creators, the Middle Class, will revive and again thrive.
• For election of three Democrats from LD26 to represent me and others in our district in the 51rst Legislature. Those three are Senator-elect Ed Ableser and Representatives-elect Juan Mendez and Andrew Sherwood.

-----

A reminder of why the fight resumes "momentarily" (after a day to give thanks, then to live thankfully during the ongoing fight) is in a letter published by the editors of the Arizona Republic in its Thanksgiving day edition:

So now, Arizona, which has a large majority of conservative Republican citizens overall, is being represented in the House [Congress] by five Democrats and only four Republicans. This is a direct result of the underhanded gerrymandering pushed through earlier by the so-called Independent Redistricting Commission.

The commission was headed by a longtime Democratic Party activist who falsely filed as an independent when she was certainly not nonpartisan. She then banded together with the two Democrat members to ram through all the redistricting maps and decisions by a party-line 3-2 majority in all cases.

The redrawn maps, which greatly favored the Democrats in the election process, ended up with the desired result of having a Democratic Arizona majority in the House, even though this does not represent the desires of the majority of Arizona citizens.

The worst part is that this farce cannot be remedied for another 10 years. I guess crime does pay, as long as you're a crooked politician.

-- Brian Callahan, Sun City

-----

Thirty-six percent of those registered affiliating themselves with the Republican party does NOT constitute anywhere near a "large majority" of Arizona voters.

I suspect the reason the Republic published such a blatantly false letter is because the editor believed he had to balance (politically) other letters in the same edition. Otherwise, he would offend (and not be able to answer for offending) a large portion of the paper's subscribers. Those letters include one explaining a vote for Obama because he respects Americans; another criticizes Republican Secretary of State Ken Bennett and another says that raising taxes on rich Americans won't hurt them.

Nevertheless, Mr. Callahan's letter is outrageous in its claims.

And even though the Tea Party was dealt a likely lethal blow in the November 6 election, its members are not likely to stop squawking anytime soon.

The change in the partisan composition of the new state legislature (still with a GOP majority) MIGHT make it more difficult to pass RWNJ bills, but we still can expect a full assault on the Middle Class because ALEC is still over represented. And the Arizona Corporation Commission, which will have FIVE Republican commissioners (out of five available seats), becomes a "wholly-owned subsidiary" of ALEC as soon as Bob Burns and Susan Bitter Smith take office in January.

-----

Some might think I'm exaggerating by calling the 2013 Corporation Commission a "wholly owned subsidiary." Consider, however, the following:

Strategic

The speedy execution of strategic priorities is another advantage of a wholly owned subsidiary. For example, a parent company could ask one of its foreign wholly owned subsidiaries to dedicate all of its resources toward a new product launch. Faster execution means faster market penetration. Synergies in marketing, research and development and information technology mean cost efficiencies and long-term strategic positioning. The strategic disadvantage is that cultural differences often lead to problems integrating a subsidiary's people and processes into the parent company's system.

Translation:

When the opposition is completely obliterated, ALEC priorities, such as repeal of the Renewable Energy Standard and implementation of various crony capitalism related projects (i.e. the Trash Burner) can proceed expeditiously. ALEC's model bill, called the Electricity Freedom Act provides the marching orders for the ACC in 2013.

Republican former ACC chair Kris Mayes appeared on Arizona Horizon last week to discuss sustainable energy issues in Arizona. Mayes, faculty director of the Program on Law and Sustainability at ASU, was instrumental in the original adoption of the Arizona's RES.

Less than two minutes into the video, Mayes says she thinks the Corporation Commission is not likely to change our state's renewable energy standard. However, it is not clear as to whether she is aware of this latest ALEC model legislation. She has to be aware, however, that the three Republican members of the current ACC are ALEC members (as is incoming commissioner Bob Burns) and that Susan Bitter Smith, having been a utility lobbyist for many years leans the same way even if she has not yet become a member.

So, be thankful and gear up to continue the fight.

Redistricting -- Federal Court litigation

On Monday, news broke that US District Court Chief Judge Roslyn Silver had issued an order denying the Arizona Independent Redistricting Commission's motion to dismiss the lawsuit challenging the legislative district maps.

The Associated Press and Capitol Media Services have both reported on this story.

Exerpts from Silver's order:

Plaintiffs allege that the adopted legislative map violates the Equal Protection Clause of the Fourteenth Amendment by diluting the Plaintiffs’ votes through unequal population distribution in legislative districts for an impermissible purpose. A challenge to state legislative apportionment under the Equal Protection Clause presents a justiciable controversy.

...states may exercise some flexibility in constructing legislative districts. “So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible.” Id. at 579. Any divergence from equality among districts must therefore result from “factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. 695, 710 (1964).

A “maximum population deviation under 10%” does not, without more, make out a prima facie case under the Equal Protection Clause. Brown v. Thomson, 462 U.S. 835, 842 (1983). There is a rebuttable presumption that a population deviation less than 10% was the result of an “honest and good faith effort to construct districts . . . as nearly of equal population as is practicable.”

If the maximum population deviation in a legislative apportionment plan is less than 10%, the burden shifts to the plaintiff to prove that the apportionment was arbitrary or discriminatory. Daly, 93 F.3d at 1220. To meet that burden, a plaintiff must show any deviation is “an arbitrary or discriminatory policy.”

Further, the plaintiff must prove that “the asserted unconstitutional or irrational state policy is the actual reason for the deviation.”

Plaintiffs allege that the Commission systematically overpopulated Republican districts and under-populated Democratic districts for the sole purpose of maximizing Democratic Party strength in the state legislature. Their only federal challenge is that bare partisan political advantage is not a rational state policy justifying population deviation under the federal constitution and is a prohibited policy under Arizona law.

And here is the bottom line in all of the language in the 12-page order:

On a motion to dismiss, the facts alleged must be taken as true unless conclusory or implausible. Plaintiffs have alleged data, details, context, and motivations arguably inferable from conduct. Regardless of what they can prove at trial, Plaintiffs have sufficiently alleged that the Commission added to some people’s votes and diluted other people’s votes based only on their expected party preference. (emphasis added)

Silver also discusses the court's rationale for denying the Navajo Nation to participate in the trial as an intervenor (while inviting its participation as amicus curiae).

Silver also addresses scheduling issues:

Time is critical in this action, as it must be concluded with relief implemented or denied, and appellate review taken, without disrupting the 2014 elections. Six months have already passed, and the pleadings are not even closed. A trial must be had by March and a prompt ruling thereafter.

Therefore, all of the motions ruled on in this order, were denied.

Plaintiffs (represented by Cantelme) were allowed to amend the complaint with respect to allegations regarding Legislative District 8. Which they did (last Friday). I remember a good bit of consternation on the part of the Republican commissioners and Republican leaning members of the public who commented at IRC hearings and meetings about this district.

Right now, it appears that the LD8 senate seat is going to be won by Democrat Barbara McGuire. The race for LD 8 House seats appears to be going in favor of the two Republicans, Frank Pratt (an incumbent for the old LD23) and T.J. Shope. 

Distinguishing issues for those races include the fact that Republican senate candidate Joe Ortiz tried (unsuccessfully) to get assistance (Independent Expenditure money) from the PAC that outgoing Senate President Steve Pierce was raising money for; and that Shope leads Democrat Ernest Bustamante (who served one term in the House representing LD23 2003-2004). In 2010, he ran again and lost by a margin of several thousand votes. Right now, it appears Shope leads Bustamante by 844 votes. So, that's why Cantelme is all a twitter (so to speak) over LD8.

Anyway, Cantelme and friends filed a 43-page second amended complaint with 116 pages of exhibits hoping to bolster their claims, which still have to be proven in court in order to make anything change.

I've not gone through the second amended complaint or the new exhibits filing, but on first glance, the exhibits appear to again have plenty of non-relevant material.

Judge Silver's order sounds sufficiently non-committal but appropriately forward thinking about the need to not unduly disrupt future elections in Arizona. And again, legislative election results seem, on the surface, to indicate that it will be pretty difficult for Cantelme and friends to prove dilution of voting strength.

Ultimately, it appears the real issue Cantelme wants to argue -- the Prop 106 language of the Arizona Constitution (establishing the AIRC) specifying that COMPETITIVENESS is a required objective/goal of the process -- is UNCONSTITUTIONAL.

If he succeeds in doing that, does he plant the seeds for voters to repeal Independent Redistricting? 

Replacing Arredondo -- the saga ends? UPDATED 4:20pm MST 11-20-12

This morning, Maricopa County Board of Supervisors' spokesman Richard de Uriarte told me the Board has learned Juan Mendez intends to submit a letter to them formally indicating his intent to decline the appointment. The Supervisors, therefore, will take NO action to name a successor to finish Arredondo's term. That term ends when Mendez (along with Andrew Sherwood, the other new state Rep. for LD26) are sworn in at the beginning of the 51rst Legislature in January 2013.

As I noted in prior posts, if Mendez were to accept the appointment, term limits would kick in sooner, preventing him from running in 2018 if he serves consecutively (and is successfully re-elected in 2014 and 2016).

When I asked Mendez about it, he was surprised to learn about "his intent."

To me, this indicates the Board 1) doesn't want to appoint either Randy Keating or Kristin Gwinn (the other two names on the short list nominated by Democratic precinct committeemen; 2) the Board wants political cover in the event anyone questions why they will have chosen to not appoint anyone to finish Arredondo's term and; 3) they want me to be the one to get that message to Mendez.

The practical impact of this series of events, from the perspective of Tempe/west Mesa Democrats and Mendez is simply that taxpayers will not be paying legislator salary to anyone for the position vacated when Arredondo resigned and term limits will be normal for Mendez once he actually takes office. He is already (along with other House Freshmen) seeing about setting up his office in the House and working with other lawmakers to get familiar with the process of submitting proposed legislation.

UPDATE 4:20pm MST 11-20-12

I heard (again) from Maricopa County spokesman Richard de Uriarte. This issue is still OFF of the agenda for Monday, but MIGHT be put on the agenda for next Wednesday. Also Supervisor Fulton Brock's chief of staff has been in touch with Randy and Kristin to request resumes and bios. So, it is again possible for one of them to be appointed to take the seat vacated by Arredondo. Stay tuned.

Redistricting -- Don't get too comfortable...

With your new legislative districts. Federal court Judge Roslyn Silver today issued an order denying the Arizona Independent Redistricting Commission's motion to dismiss the challenge to the legislative map. The claim that the AIRC diluted the impact of Republican voters by over populating them into districts solely for partisan purposes will, as it seems now, be heard in a trial tentatively scheduled to start in March 2013.

I'll have more to post about this later.

Redistricting -- Results of the Long Tedious Process

Within the last thirty-six hours, the Arizona Republic and Associated Press called the last of our state's federal office races, declaring that Democrat Ron Barber had an insurmountable lead over Republican Martha McSally for the seat representing Arizona's new Second Congressional District.

Republican challenger Martha McSally on Saturday conceded defeat in her hard-fought race against Democratic U.S. Rep. Ron Barber, bringing closure to Arizona’s final pending congressional election and giving Democrats a five-to-four advantage in the state’s House delegation in the next Congress.

Barber’s narrow victory in southern Arizona’s 2nd Congressional District helps him emerge from the shadow of his former boss and predecessor, former U.S. Rep. Gabrielle Giffords, by giving him a full, two-year House term of his own. It also means that for only the second time since the mid-1960s, Democrats will outnumber Republicans in Arizona’s new nine-member U.S. House delegation. Republicans overall, however, are in the majority in the U.S. House of Representatives and will continue to control the chamber. (emphasis added)

The five Democrats represent the two Voting Rights Districts (Raul Grijalva CD 3 and Ed Pastor CD 7) and the three competitive districts (Arizona's First, Second and Ninth).

Here's how the voter registration numbers compare to the latest vote tallies for CD 1, 2 and 9 (unofficial vote count updated 12/2 with totals last updated by the Secretary of State on 11/28):

Arizona's First Congressional District:

Ann Kirkpatrick (D) -- 122,216 122,774 (48.75 %)
Jonathan Paton (R) -- 112,868 113,594 (45.10 %)
Kim Allen (L) -- 15,161 15,227 (6.05%)

Registered Voters:
Democrat -- 142,137
Republican -- 114,303
Other -- 110,285
Libertarian -- 2,334
Green -- 582


Arizona's Second Congressional District:

Ron Barber (D) -- 143,173 147,338 (50.32 %)
Martha McSally (R) -- 141,771 144,884 (49.48%)

Registered Voters:
Democrat -- 132,562
Republican -- 136,587
Other -- 119,972
Libertarian -- 2,647
Green -- 968

Arizona's Ninth Congressional District:

Kyrsten Sinema (D) -- 115,808 121,881 (48.66 %)
Vernon Parker (R) -- 107,387 111,630 (44.56 %)
Powell Gamill (L) -- 15,608 16,620 (6.63%)

Registered Voters:
Democrat -- 107,123
Republican -- 118,077
Other -- 115,532
Libertarian -- 3,232
Green -- 761

The voter registration numbers are the latest update published by Arizona Secretary of State Ken Bennett. His website also prominently proclaims that the official canvass will be published on December 3.

After the official canvass is published, more analysis will be possible. At minimum, I plan to compare voter registration with election results for all nine Congressional districts and all thirty legislative districts.

-----

I would be remiss if I failed to mention that the GOP in Arizona still is grousing and expressing sour grapes about the maps drawn and approved by the Arizona Independent Redistricting Commission last January (and precleared by the US Dept. of Justice for compliance with the Voting Rights Act).

In contrast, Arizona Competitive Districts Coalition co-chair Ken Clark told the AP:

But Clark said he’s convinced the commission was too cautious and went overboard in creating minority-dominated districts to satisfy the federal Voting Rights Act.

That meant voters registered as Democrats couldn't be placed in another Phoenix-area district to make it more competitive, he said. “That was a lost opportunity for voters to have more choices.”

Nevertheless, litigation is still pending which challenges the legislative district map in federal court. The Congressional map challenge, which was conditionally dismissed in Maricopa County Superior Court last month was refiled on November 9.

Whether the "second amended complaint" is any more substantive than the first is still a question. On first glance, the first allegation in this latest brief still seems dubious at best.

Although the constitution requires that the AIRC begin the mapping process by creating districts of equal population in a grid-like pattern across the state before making any adjustments to accommodate the six constitutional goals, the AIRC violated the constitution by considering factors other than equal population in selecting the Congressional Grid Map. (Congressional Grid Map (Ex. 5, First Am. Comp.)). 

By considering the merits of each of the two proposed Grid Maps instead of arbitrarily choosing one, the Commission's constitutional violation was inevitable as it considered various other, non-population features of the proposed Grid Maps under consideration. (emphasis added)

To me, this claim seems specious right off the bat. Indeed, looking back at the proceedings, I described them here and here. The only thing that could possibly be considered NOT simply arbitrary is that after Commissioner Stertz's motion to adopt one particular set of grid maps over the other is opening the floor to citizen testimony/public comment prior to taking the vote on which to adopt.

But let's digress for a moment.

In the midst of the machinations leading to adoption of grid maps and the initial development of draft maps, retired Supreme Court Justice Sandra Day O'Connor addressed the AIRC. This is a good time to reflect on what she had to say to encourage the five IRC commissioners as they began deliberations on map drawing:

Citing the increasingly polarized political climate in our country, former US Supreme Court Justice Sandra Day O'Connor on Wednesday encouraged members of the Arizona Independent Redistricting Commission to work together to develop consensus on fair and appropriate redistricting.

Other highlights of her talk included telling the commissioners to expect a lot of criticism and unwanted publicity. But, she said, this is not a popularity contest.  "Arizona is fortunate to have the law it now has on redistricting, and it looks like a good one to me," O'Connor said.

"I think voters sent a special message that we want to take partisan politics out of the redistricting process and create fair representation in our legislative and Congressional districts.  The citizens of Arizona have confidence in you that you will draw boundaries that will not favor any particular elected official, political party or special interest.  Don't give up.  Do it well. We'll thank you later. Good luck to all of you."

Of course, her words were, indeed, prophetic. There had already been a good deal of controversy and criticism by that point in the redistricting process. Yet, a hell of a lot more was on the horizon, coming down the pike, so to speak, like a runaway locomotive. Okay, how many more metaphors can I mangle in trying to describe the chaos the GOP intentionally stirred up hoping to derail Arizona's 2011 redistricting cycle?

Nevertheless, during these meetings in particular, UNfair Trust counsel (and attorney for the plaintiffs in the federal court lawsuit) David Cantelme testified several times appearing to do his best to muddy the issues and provide springboards from which to launch litigation. Arizona House of Representatives' paid GOP political operative John Mills was also doing his best to distract, not as often by direct testimony, but his presence at IRC meetings and his private conversations with people who now are named plaintiffs in lawsuits challenging both maps.

Cantelme and Mills definitely disrespected Justice O'Connor by their actions.

Whether or not any of the litigation succeeds in forcing changes to the district maps or in starting the process over again from scratch is yet to be seen. But I can say, as a close observer of the process as it has unfolded -- now more than two years since it began (when commissioner applications were submitted) -- it seems completely implausible, to me anyway, that either court will disqualify the maps that were used in this year's election. Of course, I'm not looking at it as an attorney.

Now, the five commissioners who bore the burden of drawing the maps, listening to and reading the testimony of patient and impatient Arizona citizens, working with consultants and staff, can finally see the fruits of their (volunteer) labor. For this post, I have not yet obtained feedback from any of the five. But Rick Stertz did promise that he would chat with me and share his thoughts once the final vote tallies are in. No doubt you want to hear from each of them. I will work on that and get back to you, hopefully before mid-December.

Ultimately, the bottom line is that voter registration numbers (and actual election results) as they were used by the 2011 AIRC are fairly reflected in the results of 2012 legislative and Congressional races. While I would have been more pleased with different outcomes for statewide races (US Senate and AZ Corp Comm), those offices were not subject to redistricting. That Republicans won them all is not inconsistent with the outcomes of the non-statewide races.

Make no mistake, these results will not stop the GOP or its Tea Party fanatics from grousing. And they will likely not stop putting effort into subverting the will of the voters of Arizona. But as long as we have an internet that provides egalitarian access, and as long as I draw breath, I will do my best shine the light of accountability on them.

By the way, in the category of -- Be Careful What You Wish For -- wouldn't Cantelme and Hauser be as shocked IF, in the slim chance that a court would order the map drawing process to be redone, what Competitive Districts Coalition co-chairs Ken Clark and Roberta Voss had advocated for -- even MORE competitive districts end up in the maps used for 2014, 2016, 2018 and 2020. Wouldn't that be a sweet and gentle touch of poetic justice? Given the current voter registration numbers, it's certainly in the realm of probability.

Replacing Arredondo update

Pursuant to an email sent on Friday to each of the three candidates by Peggy Allen VanCamp, executive assistant to Supervisor Fulton Brock,

The Maricopa County Board of Supervisors will vote for the appointment to replace Ben Arredondo for the Legislative District 17 Arizona House of Representatives position during an informal board meeting on Monday, November 26th at 10:00 a.m. in the Board of Supervisors Conference Room, 301 W. Jefferson St. 10th floor.

Board spokesman Richard de Uriarte told me that he was not authorized to disclose the name of the appointee, but that a person has been chosen for the appointment. He suggested to me that Brock would be in contact with the person he intends to appoint, but as of this posting, it appears that contact has not yet been made (other than the email cited above).

Trash Burner saga -- litigation update

In September, I reported on one of Arizona's prime examples of Crony Capitalism, the Trash Burner project authorized by a 3-2 party line vote on the Arizona Corporation Commission.

In July 2012, the Grand Canyon Chapter of the Sierra Club petitioned the ACC to rehear the case. After the ACC declined to reopen the decision, Sierra Club sued the ACC in Maricopa County Superior Court.

Last week, the ACC filed a response to the Sierra Club suit this month along with a joint motion for briefing schedule.

Both of these documents are merely a technicality. The deadlines for the ACC to file its substantive response and attempts to rebut the claims in the Sierra Club complaint (which is essentially the same as the petition for rehearing) are as follows:

• January 18, 2013 -- Sierra Club motion for summary judgment; its supporting memorandum is not to exceed 35 pages.
• March 5, 2013 -- ACC combined response and cross-motion, also not to exceed 35 pages.
• April 18, 2013 -- Sierra Club combined reply and response; supporting memorandum not to exceed 20 pages.  
• May 9, 2013 -- ACC reply; supporting memorandum not to exceed 15 pages.

Both sides stipulated to this briefing schedule and requested oral argument in Superior Court.

At this stage of post-election reflection, I'd love to have seen the Solar Team of Democratic candidates for the three seats on the Arizona Corporation Commission be more aggressive in campaigning on the trash burner issue.

One source told me back in late September or early October that polling had shown Arizona voters not being aware of the issue. It's difficult for me to believe that if they had known about it, they would have been indifferent. 

Since we cannot change the election results, what do we do now?

First, we hope that the Sierra Club prevails in Superior Court. Second, we pay as much attention as possible to the now (well, in January, anyway) entirely GOP populated Corporation Commission. Third, we hold those ACC members accountable. That's an ongoing process. It does not lay dormant between elections.