Redistricting - FINALLY, District Court decides Harris in favor of AIRC

Thirteen months after trial wrapped in the Harris lawsuit -- which challenged Arizona's legislative district map -- the three-judge federal District Court panel issued its ruling today. Bottom line, the current legislative district map stands and will not be subject to a do over. However, based on a number of factors, an appeal to the US Supreme Court is inevitable.

Expecting the Dark Money sources and forces to accept defeat before getting the Supreme Court to rule on the matter is, in itself, a silly notion. But given the fact that a number of questions were considered and answered with different judges on the panel deciding different ways (not the same 2-1 majority on all questions), it's even more reasonable to expect the matter to be kicked up to the nation's highest court as soon as possible.

This footnote from the Order sets the tone:

1 This per curiam opinion speaks for a majority of the court in all but one respect. On the issue of the burden of proof that plaintiffs must bear, there is not a majority opinion. See the specific discussion on that subject below, at 42–43 n. 10. 

Judge Silver concurs in the result and joins this opinion in all but three respects. One is the burden of proof requirement just mentioned. There is no majority conclusion on that subject. Her second difference is with the factual finding that partisanship played some part in the drafting of the legislative district maps, primarily discussed below in section II.I, at 23–28, and to some extent in section IV.C, at 53–54. She finds that partisanship did not play a role. The finding on that subject expressed in this opinion represents a majority consisting of Judge Clifton and Judge Wake. The third disagreement, previously announced, was from the majority’s denial prior to trial of defendants’ motion for abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), discussed below in section III.B, at 33–36. That motion was denied by a majority consisting of Judge Clifton and Judge Wake. Judge Silver’s separate views are expressed in a separate opinion, concurring in part, dissenting in part, and concurring in the judgment, filed together with this per curiam opinion. 

Judge Wake dissents from the result reached in this opinion, though he joins portions of it. In addition to the finding that partisanship played some role, identified in the preceding paragraph, he specifically joins in section III of this opinion, at 28–40, discussing our resolution of pretrial motions. His views are expressed in his separate opinion, concurring in part, dissenting in part, and dissenting from the judgment, also filed together with this opinion.

The 55-page Order concludes thus:

We have concluded that compliance with the Voting Rights Act is a legitimate state policy that can justify minor population deviations, that the deviations in the map in large part resulted from this goal, and that plaintiffs have failed to show that other, illegitimate motivations predominated over the preclearance motivation. Therefore, plaintiffs’ challenge to the map under the one-person, one-vote principle fails.

V. Conclusion

We find in favor of the Commission on plaintiffs’ claim that the Commission’s legislative redistricting plan violated the one-person, one-vote principle of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We order the entry of judgment for the Commission.

Judge Wake, on the other hand, concludes his strongly worded 29-page dissent thus:

Numeric equality yields to some other worthy goals, within limits. Arizona voters left little to weigh against equality, and none of what they did allow is invoked here except homage to the Supremacy Clause. With that wedge the Commission pries pervasive party malapportionment back into Arizona, in the name of Congress and federal statute. It is a misplaced sense of federalism that stands aside while officers of a state that repudiated partisan malapportionment return to it on federal command that Congress never gave.

VII. CONCLUSION

Based on these findings of fact and conclusions of law, I would enter judgment for the Plaintiffs declaring that the Arizona Independent Redistricting Commission’s legislative redistricting plan violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. I would enjoin the Commission to promptly prepare and promulgate a plan that is free of that error.

Given the degree of disagreement between the three judges, not only will appeal be inevitable, but it's also likely to take SCOTUS a painstaking amount of time and effort to sort through and issue a final opinion. Clearly, the legislative district map will not be changed for the 2014 election, but I might suggest it reasonable to expect that if there are ultimately changes, it could take until the 2018 election before we see those hypothetical changes enacted. That is, depending on whether SCOTUS has any constraints on time lines for issuing rulings and opinions.