Redistricting -- Remember when the AZ legislature sued the AIRC?

Way back when (July 2012), the Arizona Legislature sued the Arizona Independent Redistricting Commission because it believes the US Constitution says the state legislature has the right to choose its own voters. Put another way, it believes ONLY the state legislature is lawfully allowed to draw Congressional district maps.

Anyway, today we learn that Chief Judge Alex Kozinsky, 9th US Circuit Court of Appeals, ordered appointment of a three-judge panel to hear the case that the GOP majority in the legislature wants to put on. The complaint begins,

The Elections Clause of the United States Constitution delegates the authority over the redistricting of congressional districts to the Legislatures of the States. Contrary to this constitutional delegation, Proposition 106 (adopted in 2000) amended the Arizona Constitution – removing that authority from the Arizona State Legislature (“Legislature”) and vesting it instead with the “Independent Redistricting Commission” (“IRC”). The Legislature brings this action requesting the Court to a) declare that Proposition 106 is unconstitutional to the extent it removes congressional redistricting authority from the Legislature, b) declare that the congressional district maps adopted by the IRC are unconstitutional, and c) enjoin the Defendants from enforcing or implementing any congressional redistricting plan from the IRC beginning the day after the 2012 congressional election is held in Arizona.

Yes, you read that correctly. The Republicans in the Arizona Legislature are asking the 9th Circuit Court of Appeals to declare the VOTE of the PEOPLE of ARIZONA unconstitutional.

Remember all that states' rights mumbo jumbo Republicans like to spout to engender contempt for the Obama administration? That rhetoric is NOT at all about putting the rights in the hands of voters. It's about putting it in the hands of "duly elected representatives" of those voters. Nobody put it more clearly than Sen. Al Melvin when he addressed the AIRC back in 2011.

Yes, Al Melvin, I’m now in my third year as a state senator representing LD 26. [note: he now represents LD11]

The reason I wanted to speak early on today is just the entire nature of this commission. When it was put on the ballot by Mr. Pedersen, later a Democratic candidate for US Senate and the money he placed behind this measure, it was sold to the people as an independent redistricting commission, rather than the 90 duly elected legislators in the Arizona State Legislature. 

So, now we’re dealing with that institution here in this room. Basically, we’ve got two Republicans, two Democrats, and you ma’am, the chairlady, as a so-called independent on the commission. And I’m struck by the fact, and I know this has been pointed out before, that your husband was a paid treasurer for Nancy Young Wright, a Democrat candidate in [the old] LD26 for the House.

And it came to my attention today that you specifically donated, I believe $100 to Mr. Cherny’s Democratic campaign for treasurer and that he lost to the Republican. And also that that individual, Mr. Cherny went on to become the current chairman of the Democratic Party for the state of Arizona.

So, to me, the onus is on you ma’am to be brutally and totally honest to the 6.5 million people in this state. If it wasn’t for this commission, 90 duly elected legislators would be doing this job. (emphasis mine)

Make no mistake, it was only the Majority (REPUBLICAN) caucuses that authorized this lawsuit. None of the Democratic members of either chamber voted for the idea. And in 2011, despite Melvin's nonsense claims to the contrary, it would NOT have been 90 duly elected legislators doing that job. It would most likely have been ONE now convicted political operative who spent more than ten years being paid by Arizona taxpayers to do political work for the Republican Party. That political operative, now a felon convicted of fraud, is John Mills. Mills, by the way, is due to be sentenced in October.

One has to wonder how Republicans in Democratically dominated Illinois feel about the idea of independent redistricting.

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Changing the subject, today was election day in Phoenix (and some other cities and towns around Arizona). Early (and unofficial) returns for Phoenix council district 2 indicates Jim Waring very likely is reelected, right now with 76 percent of the vote; in council district 4, it now looks like Justin Johnson and Laura Pastor will face each other in a runoff; council district 6 shows Sal DiCiccio likely reelected; and in council district 8, Kate Gallego has a strong lead over second place vote getter Warren Stewart. Kate's lead at the moment is 47 percent to 22 percent (rounded). If she does not break 50 percent plus one vote, she will also have to contend with a runoff election in November, probably against Stewart.

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Post by Forward Progressives.

In light of our state's GOP elected officials, their efforts to demolish the AIRC, including with the lawsuit referenced above, and having passed HB2305, the Voter Suppression Bill, former President Clinton's statement today is fitting commentary on the power struggles we face here in Arizona.

Redistricting -- Leach case update

In a minute entry ruling dated August 13 (the day of the last oral argument hearing), Maricopa County Superior Court Judge Mark Brain dismissed the individual redistricting commissioners as defendants in Leach v Arizona Independent Redistricting Commission.

Plaintiffs counsel, Lisa Hauser and Mike Liburdi, had argued vehemently (in writing) in response to the AIRC motion their fishing expedition [discovery efforts] would be hampered if the motion was granted. Commissioner Rick Stertz even objected to the motion, saying he really wanted to be a defendant. Recall that Judge Brain had wondered aloud about Rick Stertz's objection.

...Stertz' counsel filed an objection to the commission's motion saying he really did want to be a defendant. The judge wondered aloud why Stertz couldn't just write an op-ed. Wouldn't newspapers in the state readily publish it?

One has to wonder who is paying Lisa Hauser and Mike Liburdi (in this particular case) to challenge the Congressional map on the pretext that the AIRC forgot to dot some "i's" or cross some "t's." I suppose we can't blame Stertz or his attorney, John Munger, for trying to get the taxpayers to foot the bill for their effort to undermine the work of the commission. But really? It must take quite a bit of chutzpah.

Here's what Judge Brain said in his ruling:

The Commission is a legislative body with the capacity to sue and be sued in its own name. See Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Comm., 220 Ariz. 587, 208 P.3d 676 (2009); Ariz. Const. Art. 4, part 2, § 1(20). And the Court can grant full relief without the commissioners being named as parties. In the circumstances of this case, the Court does not believe the individual commissioners are necessary or proper defendants. Accordingly, the motion is GRANTED, and the individual commissioners are DISMISSED.

In theory, counsel for plaintiffs could appeal the ruling, but doing so would appear unbelievably absurd and make it that much more obvious that the case Hauser and Liburdi have brought is complete nonsense. So I will be most surprised if they appeal.

The blatant absurdity of the case being so much more apparent now anyway, I would hope that counsel for the AIRC would press the case, in the event they win, for an award of attorney fees to pay back the taxpayers. At least in the Harris case, there was a substantive question of law (whether the variances in district population diluted the votes of [predominantly Caucasian] Republicans) that made litigation a reasonable course of action.

That has never been the case with this lawsuit.

In fact, a minute entry ruling issued last fall, dated October 15, 2012, Judge Brain said:

IT IS ORDERED granting and denying in part the motion to dismiss as follows:

1. Counts 1, 3 and 6 of the First Amended Complaint are dismissed because they fail to state a claim upon which relief can be granted.
2. The entire First Amended Complaint is dismissed pursuant to Rule 8(a), because it is far from the “short and plain statement” required by Rule 8(a). Plaintiffs shall file a second amended complaint which complies with Rule 8(a) no later than November 9, 2012.

Hauser and Liburdi filed the second amended complaint as instructed. Given the obvious skepticism demonstrated by Judge Brain at the August 13 hearing -- when Liburdi stated plaintiffs would not be ready for trial until after the start of calendar year 2014, it is abundantly obvious that plaintiffs' challenge to the Congressional map will be a lot like Sisyphus trying to roll the boulder up a huge hill.

Who is Carlyle Begay, the new state senator for LD7?

On August 6, Carlyle Begay was sworn in as the new LD7 state senator, taking the seat vacated by Jack Jackson Jr. when he resigned to become the Obama administration's liaison to Native American tribal governments for environmental issues.

In this video, from a January 23 hearing of the Senate Commerce, Energy and Military committee, Begay appealed for recommendation to the full senate for confirmation to serve on the board of directors of the Greater Arizona Development Authority. Besides presenting himself, Begay also gives a brief description of GADA.



Did I mention that Begay's appointment has proven already to be highly controversial. Thus far, I had been skeptical of the controversy, but now am having to give it serious consideration.

Begay's predecessor thinks he will be a fine senator. That may or may not be how it plays out. However, let's consider a couple of things.

First, just who is state Sen. Carlyle W. Begay? 

In the video, Begay describes an impressive educational and professional background. But some of the other things he says, and what members of the senate committee say in return, give us important clues to who he is and what citizens of LD7 can expect from him.

First, Begay mentions his father who has served as a long-time tribal (Navajo) liaison to Peabody Energy (which bills itself as the world's largest private sector coal company). Begay talked about how important it was to hear about those issues as he was growing up. No doubt father and son are both proud of each other.

But having grown up in a home where the idea of burning coal to generate electricity is the foundation of that family's prosperity is, to me, a significant Red Flag.

Peabody provides the (capital to deliver) coal to Salt River Project's Navajo Generating Station. A lot of Navajo Nation members provide the labor. We already know that SRP holds the Arizona Legislature by the short and curlies. SRP also has been a MAJOR player (and funder) of ALEC. We also know that ALEC has declared war on Renewable Energy Standards in every state.

When the American Legislative Exchange Council gathers for its 40th annual meeting in Chicago on Aug. 7, model legislation representing the group's latest effort to roll back state-level renewable energy portfolio standards will be up for consideration by a task force comprising companies including Peabody Energy Corp., American Electric Power Co. Inc., Duke Energy Corp. and Exxon Mobil Corp., according to Greenpeace research associate Connor Gibson.

If members of ALEC's Energy, Environment and Agriculture Task Force agree, the model legislation, known as the Market-Power Renewables Act, which seeks to create a market for renewable energy credits and phase out renewables mandates by 2025, will form the basis of a coordinated campaign in 2014 involving corporate lobbyists, think tanks and state legislators.

"They have some motivation to attack these renewable portfolio standards at the state level," Gibson said July 31 of the corporate members of the task force. The obvious motivation for fossil fuel-based companies is protecting their current and future profits, he said. "But ALEC can be a convenient way to leave these companies' names out of the public debate when states are having conversations about how to change their [RPS] laws." 

This is what we get with Carlyle Begay in the Arizona Senate. Or should I say that's what Peabody Energy gets?

Begay also described his service on Arizona's chapter of the American Indian Chamber of Commerce, including having served for two years as president. Which is all well and good, but Begay gives clues during the hearing that he strongly promotes privatization.

Privatization of public services and government agencies and functions has been a major factor in degradation of government accountability to the American people.

If you think the connection from the senate hearing testimony doesn't link Begay strongly enough to privatization, there's more.

Immediately after Begay's appointment and swearing in, charter school advocacy organization Democrats for Education Reform (DFER) issued a press release touting Begay's appointment.

Begay, a member of the DFER-AZ advisory board, has spent his career endeavoring to improve the quality of life for Arizona families through public policy and community service. He became involved in education while student teaching at the University of Arizona with the Collaboration for the Advancement of Teaching Technology and Science (CATTS), a program that partnered with local underserved school districts to improve students’ understanding of science, mathematics, and technology. (emphasis mine)

So who or what is DFER? Before getting down to the bottom line, its Statement of Principles has four paragraphs of platitudes.

We believe that reforming broken public school systems cannot be accomplished by tinkering at the margins, but rather through bold and revolutionary leadership. This requires opening up the traditional top-down monopoly of most school systems and empowering all parents to access great schools for their children.

"Empowering all parents to access great schools" is code for the charter school movement. The charter school movement, which got a solid foothold in Arizona about 20 years ago, is ultimately a front for privatization and undermining public education. I could (actually, CAN) write more about that, but it would belong in a different post.

However, the connection between DFER and ALEC is very clear.

The American Legislative Exchange Council (ALEC) has been in the news lately for a variety of reasons. Today, Salvador Rizzo at NJ.com wrote about ALEC model legislation in the Garden State. Rizzo correctly notes that Colorado’s SB-191 is now model legislation for ALEC. SB-191 was Colorado State Senator Michael Johnston’s bill, although other parties clearly helped with at least some parts of the bill. Johnston is on DFER-CO’s Advisory Committee. I asked Johnston about his bill becoming ALEC model legislation. “191 is model 4 many orgs as ED is still bipartisan policy area,” was Johnston’s response (via Twitter).

At the end of the video clip from Begay's appearance before the senate committee, Michele Reagan makes the motion for the committee to recommend Begay for confirmation. When it came time for her to vote on that motion, she mentioned that she had received numerous glowing citizen recommendations for Begay. Since they were on her computer, perhaps someone should submit a public records request for all written or digital communications received by Ms. Reagan on January 23, 2013. You know, to see who exactly it was that was recommending him to the Republican state senator from Scottsdale.

My hunch is that it wasn't coal mine workers from LD7.

Take note also of how the committee chairman, Al Melvin speaks to and about Begay. My experience (very limited) in listening to and reading comments written by Melvin suggests he is EXTREMELY partisan. Not just a little bit, but a LOT. Get a load of the things he posts to twitter and you'll see what I mean.

#azright Parents in AZ must have the ability to send their children to the school of their choice regardless of family income or Zip Code.
— Al Melvin (@SenatorMelvin) August 14, 2013

By the way, last week attorney Tom Ryan (who represents state Rep. Albert Hale) suggested to me that he believes Begay to be a Trojan Horse of sorts sent by Senate President Biggs. Ryan said he thought Begay's senate appointment and his relationship with Senate President Andy Biggs parallels that of former state Rep. Sylvia Laughter and former House Speaker Jeff Groscost.

I suspect the truth is more subtle than that. First off, Laughter reportedly grew up with or around the Groscost family. Groscost was, prior to his death, very active in the Mormon church in Mesa. Laughter went to college at Brigham Young University. Andy Biggs is also Mormon. If Begay turns out to be Mormon, the connection may not be so subtle.

Because there is essentially NO Democratic Party presence in Apache County, and the Board of Supervisors has only three members and I'm not sure they even serve full-time, it's likely that the screening and selection process was handled quite awkwardly. But whether anything improper took place is a different question altogether.

The normal process for appointments to fill vacancies starts with elected Precinct Committeepersons. In this case, it would have been the Democratic PCs in that portion of LD7 which is in Apache County. But because there are none, Apache County Supervisors appointed a committee to screen applicants.

That committee provided those Supervisors three names from which to choose, Carlyle Begay was one of them. Sitting state Rep. Albert Hale was another. At this point, the third name is inconsequential. However, if Begay is found to be ineligible to serve because he does not meet the requirements of the Arizona Constitution, that person may again be "in play."

Regardless of what else the Supervisors may have been thinking when they selected Begay, they did know that if they selected Hale, they would have to turn right around and go through the process all over again to fill the vacancy Hale would leave in the House.

Whether Andy Biggs contacted the Apache County Supervisors or not -- to advocate for Begay's appointment -- probably does not matter. But, according to Ryan, that Begay has been a long time resident of Gilbert rather than anywhere in Apache County does matter.

Begay has retained Andy Gordon to represent him.

The more I think about it, the more I think Tom Ryan is probably right that Begay (who may honestly be a Democrat, but seems to be an ALEC-leaning one) is really a Trojan Horse.

Redistricting -- Judge Brain: Why can't Stertz just write an Op-Ed?

Judges can be tricky at times with how they pose questions to counsel. And because I don't know much about his standard courtroom demeanor, I can't speculate on the significance of the notable skepticism Maricopa County Superior Court Judge Mark Brain expressed -- several times during this morning's hearing -- about Redistricting Commissioner Rick Stertz' desire to remain as a defendant in Leach v AIRC.

Judge Brain called the hearing for oral arguments on the AIRC motion for judgment on the pleadings, which notably called for dismissal of all five commissioners as individual defendants in Leach. Last Friday, Stertz' counsel filed an objection to the commission's motion saying he really did want to be a defendant. The judge wondered aloud why Stertz couldn't just write an op-ed. Wouldn't newspapers in the state readily publish it?

In last night's blog post, I briefly addressed that issue but really, WHO, given the opportunity to be let off the hook as defendant in a civil lawsuit, would want to stay on? Can we infer anything other than that Stertz wants to do his best to undermine the AIRC position and case?

Anyway, counsel for all parties, including individual counsel for Freeman and Stertz, were heard on the issue this morning. The only point made by Freeman's attorney is that he plans to waive legislative privilege. Of course, Stertz' counsel also indicated plans to waive said privilege.

That again brings up the question of why then does Stertz complain about having been treated by AIRC counsel in the Harris trial as a hostile witness.

Other than the Stertz drama, Leach counsel's position -- argued by Liburdi, not Hauser -- is that they want to make sure they are able to conduct all the discovery they can. There really was no passionate plea that if the commissioners were dismissed as defendants, that process would be hindered.

The other main point brought up -- by Judge Brain -- was the question of just when plaintiffs think they will be ready for trial. Liburdi indicated that would not take place before 2014. Which again elicited skepticism from Brain.

At the hearing, AIRC counsel presented a response to Stertz' objection.  The response argues that AIRC counsel had the authority to file the motion (which included request to dismiss the individual commissioners) on Stertz behalf and that Stertz should be dismissed despite his objection.

Besides, he can do his best to thwart the AIRC case without being a defendant. Really the only thing keeping Stertz on as a defendant would do is make Munger Chadwick's gravy train on the taxpayer dime continue nearly unabated.

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AIRC counsel also sent a letter to Hauser and Liburdi with information regarding discovery and disclosures, with about 95 pages of exhibits.

Redistricting -- Leach hearing Tuesday morning

Briefs, motions and requests for self-incrimination (admissions) have been flying at a seemingly furious pace the last few days in the Harris and Leach cases.

The final Harris brief pursuant to Judge Roslyn O. Silver's order last month was filed (on behalf of the plaintiffs) by Cantelme and contains predictable blather that breaks no new ground and covers no substantive points not already made in prior filings or in the actual trial (which wrapped up at the end of March, four and a half months ago now. The only thing different, from my uneducated vantage point is that Cantelme's language sounds much more desperate this time.

Case in point, Cantelme sinks to name calling by referring to the Arizona Independent Redistricting Commission's entire approach -- ensuring preclearance on the first effort -- with the clearly derisive and dismissive expression "preclearance-made-me-do-it." Of course he is arguing that, because of Shelby County, the AIRC was required to ignore the first criterion mandated in the state constitution -- to comply with applicable federal law.

That the five commissioners were supposed to know two years before the Supreme Court handed down the Shelby County ruling is, of course, patently absurd. But then again, what Cantelme has been saying and doing to attempt to undermine independent redistricting since 2011 have been obviously absurd all along.

In approaching his conclusion that the District Court should order the AIRC to reconvene and draw a new legislative district map, Cantelme tries to nullify the AIRC argument that Shelby County should only apply prospectively and not retroactively.

The IRC argues that this Court should follow the Chevron Oil Co. v. Hudson, 404 U.S. 97 (1971). Chevron Oil is the standard followed by a court to determine whether the case before it should be applied prospectively. Thus, in Nunez-Reyes v. Holder, 646 F.3d 684 (9th Cir. 2011), the Ninth Circuit determined that its instant ruling affirming a lower court decision denying an immigration applicant’s petition for cancellation of removal should be applied prospectively. Id. at 687.

Even if Chevron Oil applies here, the circumstances do not compel that Shelby County apply prospectively. The test for prospective-only application involves a three-part balancing test beginning with whether the “decision to be applied nonretroactively . . . establish[es] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Next, the court “weigh[s] the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrogressive operation will further or retard its operation.” Third, the court weighs “the inequity imposed by retroactive application” to determine whether it would produce “substantial inequitable results” or “injustice or hardship.” American Trucking Associations, Inc. v. Smith, 496 U.S. 167, 179 (1990) (quoting Chevron Oil, 404 U.S. at 106-07). (emphasis in bold added)

It seems to me that Shelby County, in nullifying a critical provision of the Voting Rights Act, overruled clear past precedent AND is deciding an issue of first impression whose resolution was not clearly foreshadowed. Of course, Cantelme would have us believe that HE did foreshadow (foretell) this whole situation. But I don't think that is what case law is about. However, there's a pretty good chance that I got at least part of that wrong (since I'm not a law school graduate).

Will quarterback Cantelme connect with his receiver on the Hail Mary play he's running with this brief? Now we wait to see what, if anything, will be decided by the federal court in the Harris case. 

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The issue before Maricopa County Superior Court Judge Mark Brain on Tuesday morning is whether to dismiss the five redistricting commissioners as defendants in the Leach case. The case will turn on whether Lisa Hauser is able to convince Judge Brain that the AIRC violated the procedures required by the Arizona Constitution as amended by voters for drawing district lines.

The AIRC had filed a motion to dismiss them as defendants but Hauser vociferously objected. She believes that if the motion is granted, it will be much more difficult for her to prove her case.

Adding to the intrigue, Commissioners Stertz and Freeman have hired their own legal counsel, on the taxpayers' dime of course, because they apparently see this case as an opportunity for them -- even though they had their chance and did have their ideas considered in the establishment of the Congressional district map now in use -- to throw a wrench into the works and despite their having been outvoted 3-2 in many votes. They apparently want to have the majority say (contrary to what the voters decided when authorizing the AIRC).

To that end, last week Stertz filed an objection to the Commission's Motion for Judgment on the Pleadings. (excerpt below)

Defendant Arizona Independent Redistricting Commissioner Richard Stertz (“Mr. Stertz”) hereby opposes the Motion for Judgment on the Pleadings filed by Mr. Stertz’s co-Defendant, the Arizona Independent Redistricting Commission (“the Commission”), on June 5, 2013 for the reason that the Commission’s counsel do not represent Mr. Stertz for the purposes of the motion, and Mr. Stertz is entitled to, and wishes to, remain a party to this lawsuit.

On or about April 3, 2013, Mr. Stertz advised the Commission in Writing that the Commíssion’s counsel (the law firms of Osborne Maledon P.A. and Ballard Spahr L.L.P.) did not represent him and were not authorized to file any documents, motions or pleadings on his behalf in any case. See letter dated April 3, 2013, attached hereto marked Exhibit A. This was based on the fact that the Commission’s counsel do not represent Mr. Stertz’s interests whatsoever, culminating in the Commission’s counsel ultimately calling Mr. Stertz as a hostile witness in the related federal case of Harris v. AIRC in March 2013. See excerpt of transcript of trial in Harris v. AIRC on March 25, 2013, p. 203:18-20, attached hereto marked Exhibit B.

This will no doubt be a part of the hearing this morning. The drama continues and the plot certainly does thicken.

Since the GOP controlled state legislature is probably cheering Stertz on from the sidelines, they will have no right to complain about the exorbitant run up of legal costs from Munger Chadwick (Stertz' counsel's firm) or from whoever will be representing Commissioner Freeman.

Additional Leach filings from Friday and Monday include a response to plaintiffs' first request for production of documents, objecting for the most part because the requests were overly broad. A natural result of the plaintiffs not having a case and really hoping the AIRC would goof and provide some basis on which they could say "gotcha." This strategy is also known as a fishing expedition.

Further, the AIRC responded to the plaintiffs' first set of "nonuniform interrogatories to defendants," as well as a response to plaintiffs' request for admissions.

Stay tuned as the drama continues to unfold.

Speaking of Political Polarization...

Following up on my reflections after watching the documentary film The Act of Killing and thinking about it all last weekend, I find the nature of protests outside of Desert Vista High School on Tuesday -- when President Obama spoke in Phoenix on ideas for reforming the home mortgage financing industry -- particularly disturbing.

Protest messaging came both from the Right and Left, but that from the Right was cause for concern.

Racially-charged sentiment infused the protests and split the crowd both politically and physically. Obama supporters congregated on the west side of the road in front of the high school and his critics lined up across the street.

Obama foes at one point sang, "Bye Bye Black Sheep," a derogatory reference to the president's skin color, while protesters like Deanne Bartram raised a sign saying, "Impeach the Half-White Muslim!"

Many on both sides wore red, white and blue and carried small flags.

“It just kind of happened naturally,” said Michael Pomales of how the opposing sides separated. Pomales, an 18-year-old Ahwatukee Foothills resident who graduated in the spring from Desert Vista High, said he decided to join the protesters side “to spread a little love” as the crowds began shouting at each other.

Pomales said his response to people yelling for Obama to go back from where he came from is simple: “He’s a great man. He cares about what I care about, education, jobs. He’s our president. He’s an American.”

Deanna Bartram, a 17-year-old University of Arizona student from Black Canyon City, lashed out at people who call her racist for not supporting Obama. She believes Obama supporters use the “race card” against her because they disagree with her political message.

“Obama is ruining American values. He is ruining the Constitution. He needs to go back to where he came from because obviously, he is a liar,” she said. “I am not racist. I am part Indian. Obama’s half Black, half White.”

“He’s 47 percent Negro,” shouted Ron Enderle, a 77-year-old Chandler resident who said that he and his son served as Marines and his grandson is currently serving in the Marines. Enderle criticized the president mishandling security at the U.S. Benghazi Embassy...

Judy Burris said that she blames Obama for racism in America reaching heights not seen since the 1960s Civil-Rights Era.

“We have gone back so many years,” she said. “He’s divided all the races. I hate him for that.”

Since I attended the event INSIDE at Desert Vista High School, I was able to get some pictures to tell the story (posted for my friends on Facebook). I gladly share with you the last one I took, as I was leaving the school. It is an important message to students at Desert Vista and all Arizonans.

In spite of that message, or perhaps further highlighting the need for it, we should be vigilant and aware that potential for political and racial bias still lingers, especially in Arizona. Do we forget the horrendous legacy of racial violence in America?

President Barack Obama’s choice of Myrlie Evers-Williams to deliver the invocation at his second inauguration shifts the nation’s gaze on this Martin Luther King Jr. Day, ever so gently from the euphoric post-racialism of a black presidency to a legacy of racial violence that has not yet been put to bed, as it also signals, perhaps, the president’s intention to devote public space to this still unsettled issue.

Clearly, for the majority of American voters last November, we are a post-racial America. Of course, not all of those who voted against Obama's re-election continue to embrace racial polarization. But can one be anything but willfully ignorant of current events and the political and social mood throughout the country if they remain unaware of the many who tenaciously hold onto race based fear and anger?

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This leads to my concern about an upcoming town hall event being organized by four Republican members of Arizona's Congressional delegation (Gosar, Salmon, Schweikert and Franks) billed as a Congressional Field Hearing, The I.R.S. and the E.P.A. bureaucrats out of control?

A scant two years ago, without warning, opponents of independent redistricting in Arizona organized substantial, sustained and often raucous "participation" in business meetings and open hearings conducted by the Arizona Independent Redistricting Commission.

My question to the Congressmen (one of which, David Schweikert, represents the district in which I reside) is whether they purposely intend to foment hatefulness toward the President or will they claim they had no idea Arizonans already felt so strongly about what they contend is the "intrusiveness" of the Obama administration.

Just today, news comes that Maryland GOP Congressman Andy Harris held such a town hall.

A Maryland town hall meeting grew heated Tuesday, when GOP Rep. Andy Harris faced disgruntled constituents angry over partisan politics fraying the country and the perceived lack of Republican action to fix problems.

At a packed gathering in Bel Air, voters voiced their discontent on topics ranging from the Benghazi attack to National Security Agency surveillance to health care reform. Some demanded that Republicans do more to pressure President Barack Obama and Democrats to change the direction of the country.

"I want [House Speaker John] Boehner up there defying this guy and saying, 'We're going to impeachment with you' if you do not start obeying the laws," attendee Ed Hunter declared. "Listen, we're dying out here because you guys are being nice guys!" he later added. 

This is NOT rocket science. The outcome of the dog and pony show they are putting a pretty bow on and calling a "Congressional Field Hearing" IS a foregone conclusion. One aspect of that conclusion is the inevitable raising of hateful voices demanding removal of Barack Obama from office.

Just how will these Arizona Congressmen try to avoid responsibility for what will most assuredly become an angry mob?

How much security will they have at the event? Will they allow people to "pack heat," or will they have to go through metal detectors?

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By the way, I called David Schweikert's office to talk with district director Kevin Knight about the upcoming Congressional Field Hearing and was told that he was just wrapping up a meeting and would call me soon thereafter. When I had not heard from him by 5:05pm, I called again. The office apparently stops answering the phone at 5pm. The option is given to leave a voice mail message. When I waited to leave such a message, I was informed that the mail box is full... so, never mind.

Disappointing, to say the least.

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When I posted the news item about Maryland Congressman Andy Harris, to Facebook, Steve Brittle, long-time environmental activist and chair of Don't Waste Arizona made this comment:

These four Congressman will blame EPA for something the Congressmen alone have the power to fix. EPA is a regulatory agency that is charged with implementing the requirements of the Clean Air Act, which was passed by Congress and signed into law by President George H. W. Bush. After 20 years of not doing what was required about the Navajo Generating Station's emissions, EPA was sued and is under federal court order to do something to reduce the NGS' emissions. If these Congressman were trying to do anything constructive, they could introduce bills to modify the Clean Air Act's requirements that are subject of the court's order. It's not Obama's fault; he can't introduce a bill in Congress. Of course, these Congressmen would never introduce legislation like that because it wouldn't pass. Hence the bogus blame game charade.

I understand and for the most part agree with Brittle's comment. But it looks like the primary purpose of the town hall, as it relates to the Navajo Generating Station is to put complaints on a Congressional hearing record to put pressure on the EPA.

Power Engineering magazine's website has a June 28, 2013 item

The U.S. Environmental Protection Agency has extended the comment period for an emissions control plan for the coal-fired Navajo Generating Station in Arizona, according to a report from the Associated Press.

According to the report, the EPA has proposed that nitrogen oxide emissions at the power plant be cut by 84 percent within 10 years, but stated it was open to hearing alternatives to help improve air quality at places like the Grand Canyon as part of the agency’s regional haze regulations.

Salt River Project, the plant’s operator, asked for additional time to propose other options. The EPA has set a new deadline for public comment of Oct. 4, the Associated Press reported.

Nevertheless, since the August 22nd hearing also will address recent complaints regarding the Internal Revenue Service, I don't see how the Congressmen will keep it from devolving into nothing but an Obama hate fest.

We can also expect to see state Rep. Kelly "Crazy-lady" Townsend (R-Gilbert), who a few months ago was saying she intended to file suit against the IRS for challenging the tax-exempt status of her Tea Party non-profit (about which she is on record, several times on YouTube, boasting of the partisan political activities of that organization).

And hence the political (and race-based) polarization in Arizona will be further exacerbated.

Shouldn't we instead be expecting our elected US lawmakers to be working constructively toward solutions everybody can live with?

Libertarians file Sinema recall papers UPDATED 11:50pm MST 8-8-13

Earlier today, Arizona Libertarians Mike Shipley and Thane Eichenauer filed a petition with the Arizona Secretary of State to start a recall against Democratic Congresswoman Kyrsten Sinema. They say that her vote against limiting National Security Agency domestic spying constitutes a violation of her oath to uphold the United States Constitution.

On July 24th, 2013, the US called a vote (number 412) where she chose NOT to stand with 205 other US House members in placing a limit on government snooping. Kyrsten Sinema chose to reject limits on NSA data collection. In doing this, she supports a "Big Brother" government with no limits. We call on our fellow Arizona residents to support the recall of Kyrsten Sinema. 

According to Secretary of State staff, 62,533 (valid) signatures of voters registered in the Nineth District must be filed on or before December 6, 2013 in order to force a recall election.

If this recall puts pressure on Sinema to find the Democratic voice she seems to have lost over the last couple of months, it could be a good thing. But it is also possible Sinema, figuring the odds are stacked heavily against the possibility the petition could succeed, will completely ignore Shipley and Eichenauer.

It was just last night I wrote that I figure the competitive balance of Arizona's First, Second and Nineth Congressional Districts is likely to foster a nasty re-election campaign for Reps. Kirkpatrick, Barber and Sinema.

If nothing else, the recall may raise the possibility this seemingly safe vote will be exploited in the 2014 election season as much as a bold stand in favor of civil liberties would have been.

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UPDATE

There seems to be some disagreement among members of the peanut gallery (which includes me) as to whether Members of Congress are considered "public officers" according to the state constitution.

Article 8, Section 1 of the Arizona Constitution states:

Every public officer in the state of Arizona, holding an elective office, either by election or appointment, is subject to recall from such office by the qualified electors of the electoral district from which candidates are elected to such office. Such electoral district may include the whole state. Such number of said electors as shall equal twenty-five per centum of the number of votes cast at the last preceding general election for all of the candidates for the office held by such officer, may by petition, which shall be known as a recall petition, demand his recall. 

Until I get insight from an attorney, I have to figure that the Secretary of State's office would not have accepted the application, put a deadline date on it and calculated the number of signatures required if it was NOT possible to recall a Congressional representative in Arizona.

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Additional update:

While there have been several recall applications filed with the Arizona Secretary of State over the years (including this year), none has ever gotten enough signatures to have to consider any other legal question. But I'm sure this has been covered before and likely is covered by the US Constitution which, on issues like this, would almost certainly supercede any state law.

Federal case law that may be applicable to this situation can be read here.

At best, it appears Shipley and Eichenauer have embarked on a symbolic but as far as any direct impact, strictly Quixotic effort to recall Sinema.

Anyway, it's likely there is additional insight to be gained that may warrant further updates.

Catching up -- Redistricting

Last week, the Arizona Independent Redistricting Commission filed its response to the Harris (Cantelme) supplemental brief as ordered by District Court Judge Roslyn O. Silver last month.

Plaintiffs have from the beginning alleged that their case would show that the Commission created minor population deviations for impermissible partisan reasons. When Plaintiffs failed to establish evidence of partisan motivation, they shifted their theory to a referendum of the Commission’s compliance with the Voting Rights Act, including the Commission’s efforts to ensure that the redistricting plan obtained preclearance from the Department of Justice. But Plaintiffs’ claim fails on the facts and the law for the reasons set forth in Defendant’s Post-Trial brief (Doc. 219). 

Plaintiffs cannot rely on Shelby County to rescue their case. Plaintiffs never plead or argued that the constitutionality of Section 4(b) or 5 of the Voting Rights Act was an issue in this case, despite that Shelby County was pending and fully briefed at the time of trial. Instead Plaintiffs claimed that partisanship was the sole motivation for the minor population deviations and that every possible justification—including compliance with the Voting Rights Act—was a pretext. Plaintiffs have not met their burden, and Shelby County provides them no help. 

In any event, the Court’s decision in Shelby County both supports the Commission’s defense and confirms that, to the extent there is anything to dispute at all, the dispute belongs in Arizona’s courts. [...]

Whether the Commission misinterpreted the Voting Rights Act, or whether it is obligated to seek preclearance, does nothing to show that the Commission was putting up pretexts to hide partisan ends (assuming partisan ends are of constitutional concern in political redistricting). Plaintiffs ask for nothing short of an invasive second-guessing of the Commission’s legislative action, a result that encourages federal court actions challenging state redistricting plans and does nothing to preserve districting as “primarily the duty and responsibility of the State.” Id. (quoting Perry, 132 S. Ct. at 940); Cox v. Larios, 542 U.S. 947, 951-52 (2004) (Scalia, J., dissenting) (observing that challenges to legislative maps with deviations under 10% based on “impermissible political bias” are “more likely to encourage politically motivated litigation than to vindicate political rights” (emphasis in original)). [...]

For the foregoing reasons, the Commission respectfully requests that this Court uphold the constitutionality of the legislative map. If the Court needs to resolve any state-law issues prior to reaching its final determination, the Commission respectfully requests that it abstain under Pullman, so that the parties may promptly seek a state law determination in state court.

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Additionally, the Navajo Nation filed an amicus curiae brief that includes some intriguing insight on why the US Supreme Court Shelby County ruling is of no consequence to Cantelme's complaint.

Shelby County does not affect the issues presented by the Plaintiffs in this case. Plaintiffs claim that the Legislative Plan violates the one person, one vote principle set forth in the Fourteenth Amendment and ask this Court to interpret the meaning of the equal population requirement in the Arizona Constitution. Dkt. 55 at 38-41. Plaintiffs did not, however, bring a claim under the Voting Rights Act, 42 U.S.C. § 1973, specifically they did not bring a declaratory action claiming that either Section 4 or Section 5 is unconstitutional; therefore, Shelby County has no impact on this Court's decision. In addition, this Court should abstain from interpreting Arizona's constitutional equal population provision.

In other words, as significant as the Supreme Court ruling that Arizona is no longer required to seek preclearance for changes to voting laws or procedures (including redistricting) is, that's NOT what the Harris case was about. And oh, by the way, Judge, since you're also thinking about whether a federal court should rule on this matter in the first place, we believe it's an eleventh amendment issue that should be left to the state courts. The Navajo Nation brief concludes:

The issue in this case is whether the Legislative Plan is constitutional. Shelby County does not impact this Court's analysis in that regard. The Commission was required to comply with the Fifteenth Amendment, which is enforced through the preclearance mechanism of Section 5. The facts demonstrate that the Commission considered numerous factors under state and federal law. Nothing in Shelby County bolsters Plaintiffs claims or impacts this Court's ability to review the federal constitutional question under the Fourteenth Amendment. The Legislative Plan is presumptively valid and Plaintiff's failed to rebut this presumption. Because the plan does not violate the federal constitution, this Court should follow Arizona's interpretation that the equal population requirement mirrors the federal requirement for legislative plans and deny Plaintiffs' request for relief. (emphasis mine)

Of course, Plaintiffs' request for relief was for the court to declare the legislative district map unconstitutional.

Plaintiffs (our good buddy Wes Harris and his merry band of malcontents, with David Cantelme as lead counsel) will now be allowed to respond to the AIRC (and perhaps also the Navajo Nation) briefs. The deadline for that final filing is this Friday (August 9) and the brief is supposed to be limited to 10 pages.

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The Yellow Sheet Report (8/6) noted trends in Arizona's voter registration numbers.

It has been clear for some time that, while Republican registration is increasing slowly, Dem registration is declining and the pool of voters registered as something other than Dem or Republican has grown dramatically. The last two years or so, since the IRC established a baseline voter registration mark on which it based the new maps, are no exception. Since the IRC’s snapshot of the voter rolls (which seems to have been taken around July 2011, given historical voter registration numbers), Republican registration has increased by 3,189, Dem registration has gone down by 21,462 and OTHER registration, including independents and minor parties, has increased by 35,834, a full order of magnitude more than the growth in GOP voters. In that time, the gap between Republican and OTHER registration has shrunk from 55,760 to 23,115 voters. If the trend continues, OTHER registration threatens to intersect and exceed Republican registration in the near future. If the average rates of change for the three voter registration categories over the past four years holds true ... Republicans will be outnumbered by OTHERs within the next six months. 

Here's a graph they presented showing the trends:

While it's an unpleasant reality that Democratic voter registration has been falling, willfully choosing to not come to grips with it will solve nothing. Figuring out why it's been moving in that direction is probably important. However, going forward, it will be even more important to understand how and why voters vote the way they do.

Let's hope somebody has been working on that research.

However, that brings up the issue of how elected lawmakers vote on issues presented to them. There have been a number of recent votes by Arizona's Congressional representatives that rightfully make us wonder if they actually Represent US.

This is particularly irksome for those representing competitive Congressional districts. Press releases follow disappointing and controversial votes presenting rationalizations and justifications for not taking bold stands. One case in point is the recent vote on the Amash amendment to limit National Security Agency spying on American citizens. Arizona's Republican Congressmen, except for Franks, voted to limit the NSA domestic spying activity, as did Democrats Grijalva and Pastor. However, Barber, Kirkpatrick and Sinema wimped out and voted against the measure.

My hunch is that those three votes were made as a triangulation maneuver.

How does this relate to voter registration and redistricting?

In each case where the voter registration for an Arizona Congressional district is not competitive, the Member of Congress was free of worry about the 2014 election consequences and voted predictably as one would expect based on their history. Trent Franks, being generally a fan of government intrusion into the moral (including bedroom) decisions of Americans -- most notably his alignment with Cathi Herrod and her brand of right-wing political extremism -- predictably would favor spying on Americans as a routine matter.

Messrs Salmon, Gosar, Schweikert, Grijalva and Pastor, on the other hand predictably favor civil liberties and enjoy adequate registration advantages to discourage big money donors from challenging them in next year's election.

However, the closely competitive balance of Arizona's First, Second and Nineth Congressional Districts means Democrats Kirkpatrick, Barber and Sinema respectively can reasonably expect intense campaigns and challenges from Republicans. Big Money/Special Interests WILL be lustfully eyeing all three of those seats in the US House of Representatives. Therefore, while a bold vote in favor of civil liberties might be privately preferred by those Special Interests, they want the seats and will fund the most divisive and nasty campaign to unseat the Democratic incumbents as they possibly can.

Which takes us back to Represent.US and the American Anti-Corruption Act which will eventually and ultimately get multi-partisan support. But not from the corporate interests that have had a stranglehold on Congress for as long as we can remember.

Just how Polarized is the Political Environment in Contemporary USA and AZ?

On Friday evening, I and a couple of friends sat through Joshua Oppenheimer's newly released film The Act of Killing.

I hadn't heard of it before last week. But being increasingly curious about and needing to better understand the history that has brought us to the political and social environment we live in today, I was compelled to sit through this two hour documentary. It will likely be considered a classic in due time.

More terrifying than any horror film, and more intellectually adventurous than just about any 2013 release so far, The Act of Killing is a major achievement, a work about genocide that rightly earns its place alongside Shoah as a supreme testament to the cinema's capacity for inquiry, confrontation, and remembrance.

To dub Joshua Oppenheimer's documentary a masterpiece is at once warranted and yet somehow limiting, the term too narrow for what the first-time filmmaker achieves with his debut.

The Act of Killing does NOT show any actual violence. The main character however, Anwar Congo, personally boasts of killing hundreds of ethnic Chinese and communists in 1960s Indonesia. He simulates violent scenarios he helped carry out. The horrifying aspect of this movie is in the realization of how "gangsters" and paramilitary groups of young people (including young adults) are treated as heroes in their communities and their country.

Even in current day Indonesia, broadcast television interviewers describe what these gangsters did as "a more efficient system for exterminating communists. A system more humane, less sadistic and without excessive violence." Every single word of that description is euphemistic propaganda, designed solely to have the Indonesian viewers accept that the mass killing was somehow good and noble.

Then Oppenheimer asks why these mass murderers have never been punished. One of them spells it out, "War crimes are defined by the winners. I am a winner. So I can make my own definition."

In World War II, the Germans did not win the war. Even so, there are still people who deny there was ever a holocaust. Nevertheless, Germany did not get the privilege of defining what was or was not a war crime.

The ultimate question must be whether and under what conditions could such mass killings ever happen again. Could it ever happen, especially here, in the United States?

We would hope not, right?  But could it?



The Act of Killing plays through August 8th at the Harkins Camelview in Scottsdale; and in Tucson, at The Loft Cinema, September 13-19.

DuVal to AZGOP -- Stay desperate, my friends!

In a powerfully humorous response to notably lame criticism, Democratic gubernatorial candidate Fred DuVal today had some serious fun at the expense of the apparently already desperate Arizona Republican Party.

In a press release dated July 27, GOP chair Robert Graham tried to define DuVal as "the most uninteresting man in the world." It looks to me like DuVal completely dispelled any such notion:

Instead of sending a similar attack back to the Republicans, Fred DuVal set a new standard in political statesmanship today when he delivered a case of Dos Equis beer to Republican Chairman, Robert Graham and Executive Director Chad Heyward.

Borrowing from Dos Equis' memorable marketing campaign featuring "the most interesting man in the world," DuVal included a tongue-in-cheek thank-you card featuring a photo of himself dressed in a smoking jacket with full beard strikingly resembling Dos Equis' famous spokesman. Instead of using Dos Equis' theme, "Stay Thirsty My Friends" DuVal's card said, "Stay Desperate My Friends" and was addressed as a message from "The Most Electable Man in Arizona."

"Honestly, I was flattered the Republican Party decided to target me a full year before the election," said Fred DuVal, "but instead of responding to their insult negatively I wanted to show them that I am a good sport and will bring a new spirit of cooperation to the state capital when I am elected governor." 

One has to wonder if the cockamamie idea to suggest defining DuVal in that manner was the brainchild (or brainSTORM) of state GOP communications director, Tim Sifert.

I mean, REALLY? Last month on Arizona Horizon, Sifert was able to talk about the GOP perspective on why voter suppression is necessary -- without stuttering or stammering. But how could anyone think it was at all rational or compelling? But hey, I should be praising Sifert, because the AZ GOP keeping him on will tremendously boost Democratic fortunes in the 2014 election season.

So, thank you Robert Graham and Tim Sifert for, as the late night talk show hosts/comedians like to say, providing plenty of good material.

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Changing the subject just a bit, but perhaps remaining on the topic of desperation, state Rep. Albert Hale reportedly has signaled intent to file a court challenge to the appointment of Carlyle Begay to the state senate. From the August 1 Yellow Sheet:

Hale told our reporter yesterday he plans to go to court to challenge Apache County’s decision to pick Carlyle Begay to replace Jackson Jr in the Senate because, as noted yesterday, it is unclear if Begay actually resides in LD7. The questions surrounding Begay’s eligibility to get appointed because of his residency aren’t novel. Similar questions were raised when Burges’ name was sent to the Maricopa County Board of Supervisors as a potential replacement to Bundgaard in early 2012. [Burges was appointed to replace Bundgaard, despite any such question] The issue surfaced more recently when Fillmore, who is from Pinal County, expressed interest in replacing Crandall, even though the two live in different counties in LD16. At issue is the statutory requirement that a nominee to fill a vacancy must also meet the qualifications to serve in the Legislature.

The Constitution mandates that [for a person to qualify to serve in the legislature, s/he] must “have been a resident of Arizona at least three years and of the county from which he is elected at least one year before his election” to the Legislature. Begay has been living in Gilbert for the last seven years but maintains an address in Apache County and registered to vote in that county late last month. Hale’s challenge could focus on the constitutional requirement that legislators must have resided in the same county they’re representing for at least a year. Begay’s likely defense to such a claim was laid out by Maricopa Deputy County Attorney Colleen Connor in January 2012 in an opinion she issued to Supervisor Max Wilson during the replacement process following Bundgaard’s resignation. Connor concluded that the county residency provision of the Constitution was a remnant of the old representation scheme that saw lawmakers representing counties instead of districts. 

From my perspective, a couple of points stand out. First, the citation from the State Constitution says,

... shall have been a resident of Arizona at least three years and of the county from which he is elected at least one year before his election. (emphasis mine)

Begay obviously was NOT elected. That, in itself, does not mean the constitutional provision is meaningless in this case. But it does mean that it would likely take a decision, ultimately by the Arizona Supreme Court, to resolve the conflict in the language.

More salient, however, is that there is no way around the fact that it is the Apache County Board of Supervisors who have the ultimate authority to make the appointment to fill the vacancy. I don't see how, if Hale sues them, he could expect to be appointed in the event Begay was to get disqualified.

To me, that makes any legal action Hale may take to enforce his indignation tantamount to spinning wheels on a gravel road without ever gaining any traction. He could make a lot of noise; he could cause a lot of people a lot of grief; but I can't imagine any way he could get satisfaction regardless of what a court may decide.