Voting Rights Act arguments to be heard by SCOTUS this month

In its preview of Shelby County (Alabama) v. Holder, the Brennan Center for Justice at the New York University says:

On Wednesday, February 27, 2013, the Court will hear argument in one of the most significant cases of the current term, Shelby County v. Holder (No. 12-96), a constitutional challenge to key provisions of Congress’s 2006 reauthorization of the Voting Rights Act of 1965.  In this case, Shelby County challenges the provisions requiring certain “covered jurisdictions,” primarily the southern states of the old Confederacy, to secure advance approval (“preclearance”) from the Department of Justice or a federal court in Washington, D.C. before implementing any changes in voting or election procedures. 

These provisions were enacted after a century of fierce resistance in those southern states, through violence, intimidation, and obstructive and evasive procedures, rendered illusory the Fifteenth Amendment’s guarantee that the right to vote cannot be “denied or abridged…on the basis of race, color or previous condition of servitude.”  The preclearance provisions are viewed as the heart of the Voting Rights Act and are credited with the enormous gains in the enfranchisement of black and other minority citizens.

Arizona, which is subject to the preclearance provisions of the Act, has a clear stake in the impending decision. Beside the fact that redistricting decisions face scrutiny by the US Department of Justice, any and all changes to voting laws and procedures in our state must also be precleared.

The Brennan Center filed an amicus brief on behalf of those defending Section 5 of the Voting Rights Act, saying (in part):

The Court of Appeals and Respondents persuasively demonstrate that the evidence of racially discriminatory practices in the covered jurisdictions is sufficient to show a continuing need for the preclearance provisions. The coverage formula is likewise justified when viewed in light of the deference to which Congress is entitled and the system Congress established for modifying coverage upon changed circumstances. 

In this brief, amicus shows that the history of the Fifteenth Amendment supports special deference to Congress’s findings. With the Fifteenth Amendment, the Framers elevated the right to vote as a central concern of the federal government and made Congress the primary enforcer of that right. A core purpose of the Amendment was to give Congress significantly broader, constitutionally-based legislative authority to protect citizens’ right to vote from racial discrimination.

The Center also provides a list of (and links to) other amicus briefs filed to support upholding the lower court ruling.

Legislation now being considered in the Arizona Legislature in the regular session includes several proposals that will have the effect of (even if not the intent) making it more difficult or cumbersome for many Minority citizens to exercise their franchise.

So, Arizonans will be closely watching Shelby County (Alabama) v. Holder, the oral arguments later this month and the ruling which will ultimately follow.

Arizona UPRISING -- troubling election bills

This afternoon, state Sen. Steve Gallardo held a press conference on the Capitol Lawn to advise about a letter he has sent to the US Department of Justice expressing his concern about legislation that appears to be aimed at diminishing the voting rights of Minority voters.

The bills at issue are:

• SB 1003 -- Early Ballots (strike all amendment)
• SB 1261 -- Permanent Early Voting Lists; amendments
• HB 2350 -- Permanent Early Voting Lists; notarization

From Sen. Gallardo's letter:

I am concern that the proposed legislation will conflict with United States Department of Justices directives and decisions ensuring the voting rights of all Arizonan citizens.

My primary concern arises from the fact that the development and drafting of these election bills has been done in a vacuum. As has been the practice of the Majority through their legislative practices, citizens, especially those of language minorities have been systematically excluded from participation. The process has not been inclusive and numerous communities and organizations have been left out of the stakeholders process.

The Current language in these bills will making the voting process more cumbersome and difficult and thus will have the unintended Consequences of disenfranchising a huge segment of our citizens.

Make no mistake -- ALEC still at work in AZ

It would undoubtedly be a full time job for one or more persons to get a handle on all of the ALEC model legislation that has been introduced in the Arizona Legislature thus far in 2013. I do not have the luxury of focusing that attention and effort on such a project. But I did just run across a key piece of legislation that clearly is an effort by ALEC (a UNION of lawmakers and lobbyists/BIG Business) to erode the rights of Arizona citizens as guaranteed in our state constitution.

SB1452 -- Class Action Lawsuits is nearly a verbatim copy of ALECs Class Action Improvements Act.

Specific language in SB1452 includes:

The court shall not certify an action as a class action unless, on the basis of a full record on the relevant issues, the proponents offer clear and convincing evidence that the action complies with all the requirements for certification.  If the court doubts whether this burden has been met, the court shall deny the class certification.  The court shall decertify a class action on any showing that an action has ceased to meet the applicable prerequisites for maintaining a class action...

Quoting from the ALEC model bill:

A court shall not certify that an action may be maintained as a class action unless, on the basis of a full record on the relevant issues, the proponents proffer clear and convincing evidence that the action complies with all requirements for such certification. Any doubt as to whether this burden has been met shall be resolved in favor of denying class certification. The court shall decertify a class action upon any showing that an action has ceased to satisfy the applicable prerequisites for maintaining the case as a class action.

 From the Center for Media and Democracy:

This bill greatly limits class action lawsuits, a major vehicle for confronting a large corporation’s widespread practices that cause injury or are discriminatory. In particular, this bill specifies that class actions can only be maintained if the plaintiffs are not seeking any money. (see Section 2(b)(2)). It also makes it much more difficult to maintain a class action if it involves plaintiffs from multiple states, and adds a series of other presumptions against the maintenance of the class. This bill would have the effect of protecting large manufacturers of goods and large service providers from liability.

This “model” bill seeks to replace state statutes and judicial decisions to make it more difficult for Americans to file and maintain class action lawsuits in state courts. The ability to file a class action can help individual Americans aggregate and strengthen their case and leverage in claims against corporations whose products or actions have injured multiple people. Through this legislation, corporations are trying to consolidate gains they have made in the federal court system under judges that are often selected from law firms that have primarily represented corporate defendants and not injured plaintiffs. In so doing, this proposed legislation seeks to supplant state procedures and rulings that may be more sympathetic to injured Americans than the federal system. Among other things, the proposed bill attempts to limit the ability of a state court to handle a class action that involves citizens of its own state along with citizens of other states who have been injured or killed by products sold nationally. This aids companies and limits injured Americans’ rights.

Crafty Big Business UNIONISTS* (not to be confused with labor unions) and the lawmakers they fancy KNOW they cannot come outright to eliminate the rights specifically enumerated in the Arizona Constitution:

Section 31. No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person...

So they nibble away at the edges when (they hope) nobody's looking. Like during a regular session (which thus far has had 1,212 bills, resolutions and memorials filed for consideration by the 51st Legislature).

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Lest one forget, in 2011, Susan Saladoff produced and directed the documentary movie HOT COFFEE. Saladoff practiced law for twenty-five years in the civil justice system representing victims of corporate negligence.




If you haven't seen HOT COFFEE yet, you REALLY must. It's available on Netflix and the DVD can be purchased through Amazon. This video clip is only one segment of the documentary.

Alas, ALEC is still alive and active in Arizona.

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* Unionist:
un·ion·ist  (yny-nst)

n.

1. One who believes in or supports a union or unionism.

2. A member of a labor or trade union.

3. Unionist One loyal to the federal government during the Civil War.

Well, we are no longer engaged in THE Civil War, so usage 3 doesn't apply. We're not talking about trade unions, so usage 2 doesn't apply.

So, it must be usage 1. For further insight, 

An organization whose membership consists of workers and union leaders, [is] united to protect and promote their common interests.

MAKE NO MISTAKE -- ALEC is THE Big Business UNION, united to protect ITS interests, at YOUR expense.

Redistricting -- Fed court: legislative privilege

Pursuant to Judge Roslyn O. Silver's order (yesterday) giving Arizona Independent Redistricting Commissioners Scott Freeman and Rick Stertz until today to give notice, counsel for each did so, indicating that at THIS time they would NOT invoke legislative privilege.

However, where yesterday Freeman hedged, saying:

Commissioner Freeman does not concede that he must definitively and irrevocably elect whether to assert any privilege before being asked any questions or being presented with any discovery request. Commissioner Freeman, therefore, to the extent permissible under the law and any order of this Court, reserves the right to waive or assert any privilege until such time that he must respond to discovery requests or questioning at a deposition or trial. In addition, Commissioner Freeman does not waive any privilege, evidentiary, or other objections he may have to any discovery requests or responses offered by any other party.

Today, Freeman says only:

In conformance with the Court’s February 7, 2013, Order [Doc. 120], and in accord with the Notice he provided the Court on February 6, 2012, [Doc. 118], Commissioner Scott Day Freeman, by and through undersigned counsel, states that he does not claim legislative privilege in this matter.

Presumably, the phrase, "in accord with the Notice he provided the Court on February 6, 2012..." incorporates the caveats and qualifications spelled out two days earlier.

Stertz, then today said:

Commissioner Rick Stertz, by and through undersigned counsel, and pursuant to the order of the Court dated February 7, 2013, (Docket No. 120), hereby respectfully gives notice that, based upon the limited and incomplete information now available to him and his counsel, he will not invoke any legislative privilege that might be applicable in response to questions or discovery requests that might be directed to him in the above-captioned matter. This decision not to invoke any legislative privilege does not and is not intended to serve as a waiver of Commissioner Stertz’s right to assert any other testimonial or other privilege that might be available to him. Further, Commissioner Stertz respectfully submits that this decision is made under protest for the reasons set forth in his Motion for Extension of Time...

Don't you just love ambiguity?

Clearly, Stertz and Freeman want to be able to spill their guts, so to speak, regarding how they believe the process unfolded. It might be reasonable to infer they'd like to be able to help the plaintiffs undermine the legitimacy of the legislative district maps. "Might" being the operative word.

Attorneys for each had hoped for two weeks in order to review the official record of AIRC proceedings. That would have put a nice HUGE dent in the $500,000 supplemental appropriation the legislature approved last week, which Brewer signed just Wednesday. As it stands, however, both have telegraphed their TENTATIVE intent to waive legislative privilege.

I understand the next expected step in the process is for both parties (AIRC and the GOP plaintiffs) to file rebuttal expert reports. Those filings promise to be both tedious and intriguing, with arguments for and against the legislative maps that were used in the 2012 election.

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In the meantime, on Wednesday, Scott Freeman tweeted:

3 of 5 #AIRC commissioners claim "legislative privilege" in lawsuit brought by voters concerning legislative district map. #azright #azgop
— Scott Day Freeman (@FREEMAN_AZ) February 7, 2013

Which, when posted on facebook drew a comment from Bill Mitchell:
"Let me guess which ones!!"

While technically, Freeman's tweet was (is) accurate, it seems clear the impression given to at least one tea partier was that Commissioners Mathis, McNulty and Herrera have something to hide. To me, since both Freeman and Stertz took great pains to qualify their position on asserting the privilege, Freeman's tweet seems -- at minimum -- disingenuous.

Redistricting -- Fed court update

On Monday, I reported about Judge Silver's order last week that each of the five members of the Arizona Independent Redistricting Commission tell her whether they intend to invoke (or assert) legislative privilege in the GOP challenge to the legislative district maps. Silver gave a deadline of yesterday (February 6).

All five commissioners DID respond before the deadline, but two of them hedged, unsure of whether they should clam up or not.

Those who have been following along for much of the last two years can guess which two are unsure of whether they wish to assert the privilege in THIS lawsuit.

Commissioner Rick Stertz' counsel filed a motion asking for two additional weeks to decide whether to  invoke or not invoke, saying:

As soon as counsel's employment was approved, counsel began reviewing available documents necessary to the representation of Commissioner Stertz, and particularly those relevant to the question whether it is in Commissioner Stertz's best interest to exercise the legislative privilege in response to questioning in the above-captioned case. 

Well, I wondered what it was that Stertz' counsel decided was "particularly those relevant to the question..." When I asked AIRC staff, and then counsel, what Mr. Munger and his staff had indicated was "relevant to the question," they said it was pretty much everything.

Of course, the record is all on record. So, it's anyone's guess as to what is making Stertz and Freeman so skittish about the question of legislative privilege. Being an attorney himself may or may not have played into his position, but while Freeman joined in Stertz' request for a two week extension, he did say:

Commissioner Freeman does not concede that he must definitively and irrevocably elect whether to assert any privilege before being asked any questions or being presented with any discovery request. Commissioner Freeman, therefore, to the extent permissible under the law and any order of this Court, reserves the right to waive or assert any privilege until such time that he must respond to discovery requests or questioning at a deposition or trial. In addition, Commissioner Freeman does not waive any privilege, evidentiary, or other objections he may have to any discovery requests or responses offered by any other party.

Intriguing, for sure. Today, however, Judge Silver responded to Stertz' motion by granting an extention until TOMORROW (Friday, February 8). I've got to hand it to her, she made it clear from the start that she intends to keep to the schedule of starting the trial in March.

IT IS ORDERED the Motion for Extension of Time (Doc. 113) is GRANTED IN PART. No later than February 8, 2012 Commissioners Richard Stertz and Scott D. Freeman shall advise the Court whether they will invoke the legislative privilege.

And so far, she's sticking to her guns.

Arizona UPRISING -- the next AZ governor, perhaps?

Of course, it's not scientific and he hasn't even formally declared his candidacy, but when one of the most notorious Arizona Republicans is sounding the warning, it might just be a good sign.

This evening, Nathan Sproul tweeted:

Looks like @fredduval is jumping in Govs race. Could be problem for GOP nominee. He's smart, likable and not crazy. #UhOh

— Nathan Sproul (@NathanSproul) February 7, 2013

Redistricting -- Those Poor, Persecuted Republicans

So, do you think you've seen it all? Well, how about this: the newly elected chairman of the Arizona Republican Party, in a statement quoted by Roll Call reporter Abby Livingston said:

“Arizona’s political landscape today reflects a flawed process where election districts were drawn up based on a one-sided political agenda and too much secrecy, and I’m taking action now to make sure that doesn’t happen again,” state GOP Chairman Robert Graham said in a statement.

“We are looking for an honest and open process that doesn’t favor one group of voters over another — one that is truly bipartisan and treats voters equally while putting an end to the discrimination against Republicans.”

Now Roll Call bills itself as:

In a world of media spin and special interest bias, CQ Roll Call has stayed true to its roots. From Capitol Hill hearing rooms to campaign war rooms, from the White House to the House and Senate floors, CQ Roll Call covers Congress, inside and out...

With the largest press corps on Capitol Hill, CQ Roll Call has earned a reputation for delivering comprehensive, accurate and objective congressional reporting.

That MIGHT be somewhat true, but in its reporting on Graham's press release, Ms. Livingston seemed to practically fall over herself attempting to validate the concerns of the GOP whiners.

Arizona featured one of the most protracted, nasty rounds of redistricting of any state last cycle. But operatives from both parties admit that Democrats got the better end of the independent commission-drawn map during the decennial process.

IF Roll Call actually was true to the mission it brags about, Ms. Livingston would have to name those "operatives from both parties." My impression, however, is that this kind of reporting is akin to Yellow Sheet envy. The Yellow Sheet unabashedly reports "News Notes & Gossip."

THIS tripe -- copying a press release and reporting it as news, then making vague claims of admissions from operatives from both parties -- is FAR from comprehensive, far from accurate and about as far from objective as a reporter can get.

Why, you might ask, do I think this is a big deal?

For the Arizona GOP to complain about how they got the short end of the stick is their right. Objectively, however, the outcome was NOT the result of a one-sided process, nor was it the result of secret deals. Deliberations were done in open session. For the entire time the maps were in process.

This conspiracy of incompetence between the AZ GOP and Roll Call does not mark the first or the only effort that has been made to mischaracterize the painstaking process of gathering quantifiable public input and analysis of voter registration data.

If THIS situation were to be reported COMPREHENSIVELY, and objectively, it would not result in a pervasive meme that the GOP were victims in the process. But I expect the AZ GOP to consistently make that false claim from now until doomsday. Thankfully, we do not have to rely on corporate media to pander to the "persecuted Right Wing" any more.

Redistricting -- fed court order on privilege?

Following up on Howard Fischer's story the other day regarding the question of legislative privilege, Arizona Independent Redistricting Commission counsel Mary O'Grady provided a copy of the January 30 order.

O'Grady indicated the recent court order does not specifically make a ruling on whether each commissioner is allowed to invoke the privilege, but does instruct all five commissioners to respond, by Wednesday this week to the question of whether they plan to do so or to waive said privilege. Fischer apparently read between the lines (of that order) where Judge Roslyn Silver stated:

These Defendants should know that if the legislative privilege is recognized here, claiming privilege will likely be treated by the Court as irrevocable, such that any individual claiming the privilege would not be permitted to testify on those subjects at trial.

The election by a defendant not to assert a legislative privilege does not mean that the defendant foregoes other limitations upon discovery and trial examination, including limitations that might be imposed by the Court under its authority to supervise discovery and manage the case.

While Fischer's inference -- that the redistricting commissioners "do not need to answer certain questions from those who are suing them" -- may seem reasonable, that's NOT what the order says, or even implies. Silver specifically stated, "if the legislative privilege is recognized here..." leaving the possibility open that said privilege might not ultimately be recognized.

Anyway, apparently all five commissioners will have individual counsel on this question. I will follow up later this week to see and report on which ones invoke and which ones waive the privilege. We will find out at some point after that whether the court will recognize the privilege.

Redistricting news update

Howard Fischer of Capitol Media Services reported yesterday that members of the Arizona Independent Redistricting Commission:

...do not need to answer certain questions from those who are suing them, a federal court has ruled.

The judges accepted the argument by commission attorneys that its members are entitled to the same immunity from having to explain their decisions as state legislators. That allows them to rebuff inquiries from those who are suing them.

I'll try to get AIRC staff or counsel to elaborate on this point in the next day or so, but since this story came out on the weekend, I'm not going to bug them yet.

Additionally, the New York Times ran an op-ed today, penned by Princeton University professor of microbiology (who apparently also has some passion for politics) Sam Wang on The Great Gerrymander of 2012.

Normally we would expect more seats in Congress to go to the political party that receives more votes, but the last election confounded expectations. Democrats received 1.4 million more votes for the House of Representatives, yet Republicans won control of the House by a 234 to 201 margin. This is only the second such reversal since World War II.

Using statistical tools that are common in fields like my own, neuroscience, I have found strong evidence that this historic aberration arises from partisan disenfranchisement. Although gerrymandering is usually thought of as a bipartisan offense, the rather asymmetrical results may surprise you.

Through artful drawing of district boundaries, it is possible to put large groups of voters on the losing side of every election. The Republican State Leadership Committee, a Washington-based political group dedicated to electing state officeholders, recently issued a progress report on Redmap, its multiyear plan to influence redistricting. The $30 million strategy consists of two steps for tilting the playing field: take over state legislatures before the decennial Census, then redraw state and Congressional districts to lock in partisan advantages. The plan was highly successful. 

Professor Wang lumps Arizona in his statistical analysis without examining the additional factors the AIRC must consider when drawing district lines but at least acknowledges the fact that it's an independent commission. Wang also notes that California's independent commission produced results that fit within the outcomes he believes should be expected when partisan gerrymandering is removed from the process.

Because Arizona's independent commission was in its second cycle, and because Republicans so easily dominated that process the first go-round (in 2001), the GOP strategy did not work in our state. But that hasn't stopped them from trying. This blog has record of plenty of instances of those efforts from December 2010 to the present (i.e. UNfair Trust). At this time, they are being highly persistent in their litigation efforts.

And in the federal court lawsuit (reported on by Fischer, at the top of this blog post), I suspect the ruling extending legislative immunity from disclosure of deliberations may be a substantial setback to the GOP plaintiffs and counsel (Cantelme). In their efforts to claim decisions made by the AIRC were done solely or primarily for partisan purposes, they had their sights set to "go a-fishin" in hopes of finding something to substantiate their claims.

It would be silly of me to suggest the likelihood of any particular outcome of the lawsuit at this time, but this preliminary ruling still strikes me as encouraging.

Let's also hope that op-ed columns like the one today in the NYTimes gets more people working on adopting independent redistricting in lots of other states in time for the 2021 cycle.