Guest post: Child Safety bill important start, but NOT real reform -- UPDATED 5-28-14 2:10am

FOR IMMEDIATE RELEASE
Kristin Gwinn
(480) 577-2172
kgwinn@pafcoalition.org

PAFCO Response To the Governor's Proposed Child Welfare Reform:

" Where Are the Families? The Bill Is an Important Start, But Real Reform Is Missing."

This week, Governor Brewer called a special session of the Arizona Legislature to consider much needed reform to our child welfare system.

There is much to applaud in the proposed legislation including the establishment of a Cabinet-level Department of Child Safety (DCS) to replace the failing Child Protective Services and whose director will report directly to the Governor. The bill clarifies the purpose of DCS and adds accountability and transparency measures, new staff training requirements, and a Community Advisory Committee. Overall, the proposed bill structurally improves a system long-plagued by administrative inefficiencies, antiquated procedures, and lack of accountability.

The legislation will cost approximately $54Million, nearly half of which is designed to tackle the backlog of over 14,000 cases, with the remainder directed toward additional staff to address increasing caseloads, and $4 million earmarked for child-care subsidies.

While these changes are needed, let's be clear, they do not "fix CPS". In recent months, we've watched public administrators and elected officials look to place blame for the 6,500 uninvestigated ("NI") cases. We've heard lawmakers argue over how much we can afford to invest in our children and whether we should emphasize protection or prevention. However, in all of the chatter about "reform" and "wrecking balls", we've heard surprisingly little about the only people that really matter in all of this - the families.

The real problem with CPS is not the leadership that created the "NI" cases nor the years of chronic underfunding, though both are serious issues. Arizona's child welfare failure is a philosophical crisis; a direct reflection of the way we choose to view our families in need.

Ask the average citizen on the street what CPS does and they will tell you they protect children from bad boyfriends and the mothers who bring them home, the predators and perpetrators we are so horrified to hear about on the news. The truth is, these cases are the exception; more than 80% of all CPS cases involve neglect, not abuse.

The average family who winds up in the CPS system is likely to be poor. One or both parents may be unemployed or underemployed and may struggle with behavioral health or medical challenges. Many were themselves abused or neglected with no model for healthy parenting. They love their children very much, often sacrificing their own needs, constantly juggling and stretching what is not enough in order to cover their children's basic needs. Sometimes stress gets the best of them and they yell at their kids. Sometimes they are lucky enough to find work but find they have no money for appropriate child care, so they do the only thing they can - they leave their 4-year old in the care of the 8-year old. Sometimes the well-meaning neighbors get nervous and call the hotline and, before you know it, CPS is at the door.

What happens then is every parent's nightmare. Arizona removes more children from their homes than any other state. There are many reasons why, but it boils down to a historic pattern of treating parents like perpetrators and creating an adversarial relationship with families. Worse yet, we keep children longer than most states as well, an average of 17 months, demanding higher standards for return than would have been expected to keep the children in the first place. We like to imagine every CPS child placed in a loving foster home, but this is not the case. With so many children in care, they are often warehoused in group homes, sometimes alongside children with serious behavioral health issues, subjecting them to more trauma and stress. The long-term outcomes for these children are not good, and if they do go home, they often do so with new behavioral issues of their own.

These are complex problems, but the solutions are not mysteries. Evidence-based best practices are being implemented across the country, so we know what works. We know that in homes where the child faces no immediate physical danger, stabilizing the family in order to keep the child safely in the home is always the best outcome. We know that widely available child-care subsidies for low-income families make a huge difference, as do targeted, in-home interventions tailored to their individual needs. We know that a robust social safety net that truly meets the basic needs of families goes a long way toward avoiding neglect cases. We know that investing in prevention and support programs up front stops the rising tide of children coming into the system, saving us millions in expensive out-of-home care. We know that paying higher salaries to professionally-credentialed caseworkers leads to better qualified staff, better outcomes for families, and an end to high turnover rates.

There will be voices this week claiming they would love nothing more than to make these investments, but Arizona simply can't afford it. The fact is, we can't afford not to.

Child welfare is not a luxury item that we choose to fund at whatever level makes us comfortable; children are either safe or they're not. The failure to provide enough resources to cover basic needs is what led to many children being removed in the first place. The 10s of millions saved on expensive out-of-home care alone would offset the investment in support services. Let us remember that Arizona currently has 450 million of your tax dollars stashed in an untouched "Rainy Day Fund". What is happening to our kids isn't a rainy day - it's a Category 5 hurricane!

Ultimately, we are faced with a question of values. If we truly value our families, we must stop treating them like criminals and begin partnering with them to make things better. It's what's best for the children and it's less expensive in the long-run for taxpayers. All indications are that the new Director of DCS, Charles Flanagan, is open to real reform, but he cannot do it alone. Our next Governor must be held accountable for continuing the work that is only beginning, and we must demand an ongoing dialogue on how we become a state that invests in strengthening families rather than tearing them apart.

Good work will be done this week, we have no doubt, and we encourage all legislators to vote for the proposed bill. But make no mistake, the real reform is yet to come.

-----

UPDATE (not from PAFCO)

The proposed 214-page policy bill can be found at SB1001 and HB2001.

The Senate already has posted a proposed amendment. The proposal is to put more specificity into the statutory purpose for the new department.

The bill as introduced says, in pertinent part:

A. THE DEPARTMENT OF CHILD SAFETY IS ESTABLISHED.
B. THE PRIMARY PURPOSE OF THE DEPARTMENT IS TO PROTECT CHILDREN.

The proposed amendment would make the first sentence of subsection B read:

 B. THE PRIMARY PURPOSE OF THE DEPARTMENT IS TO PROTECT CHILDREN FROM ABUSE AND TO STRENGTHEN AND PRESERVE FAMILIES.

Which is all well and good but what about protecting children from neglect? In the PAFCO statement above, note:

The truth is, these cases are the exception; more than 80% of all CPS cases involve neglect, not abuse. 

But you say, you've read the bill and the new Dept. of Child Safety is tasked with doing the following:

To achieve this purpose, the department shall do and focus equally on the following:

1. INVESTIGATE REPORTS OF ABUSE AND NEGLECT.

2. ASSESS, PROMOTE AND SUPPORT THE SAFETY OF A CHILD IN A SAFE AND STABLE FAMILY OR OTHER APPROPRIATE PLACEMENT IN RESPONSE TO ALLEGATIONS OF ABUSE OR NEGLECT.

3. WORK COOPERATIVELY WITH LAW ENFORCEMENT REGARDING REPORTS THAT INCLUDE CRIMINAL CONDUCT ALLEGATIONS.

4. WITHOUT COMPROMISING CHILD SAFETY, COORDINATE SERVICES TO ACHIEVE AND MAINTAIN PERMANENCY ON BEHALF OF THE CHILD, STRENGTHEN THE FAMILY AND PROVIDE PREVENTION, INTERVENTION AND TREATMENT SERVICES PURSUANT TO THIS CHAPTER.

 To which I say, what happens when this new DCS is faced with fiscal hawks demanding to cut government funding? They will say to themselves*, "Selves, since the vast majority of the burden on this agency arises from reports of child neglect, and since the PURPOSE, as spelled out in statute does NOT specifically say we have to, if we're going to cut corners, that's where we start cutting corners, looking for ways to save money."

From where I sit, there is NO time like the present. Since the legislature is IN SESSION NOW, shouldn't we demand they spell out the purpose of the agency to include protecting children from neglect?

If you don't think anyone would ever go in that direction (to cut corners), consider that it's VERY unlikely that the word "neglect" was INADVERTENTLY omitted from the proposed amendment or from the purpose statement in the bill. How long has the committee/task force been working on this legislation?

Can any reasonable person believe they just forgot to include neglect in the purpose?

Squeeze, baby, squeeze... every last possible bit of value out of the measly amount of taxpayer funding we will allow this agency to have.

Oh, and when that time comes, and somebody decides to sue the state for not providing services to prevent their grandchildren from being neglected, the courts will look at legislative intent. When they do that, the PURPOSE statement carries added weight.

-----

* NOTE: Those people might be the governor, whoever that is at some point in the future, the DCS director, and assistant and deputy directors who both establish operating rules and are held accountable for certain results; AND lawmakers and whoever assumes the role of Grover Norquist and/or the Don't Tread on Me people who don't like paying taxes. The local voices who now assume the role of Norquist include but are not necessarily limited to the Goldwater Institute and Kevin McCarthy, long time director of Arizona Tax Research Institute.

Commencement season -- So, let's commence (further) changing the world.

John Nichols, just a day or so ago, spoke to an audience at the Kansas City (MO) Public Library on the topic, How to Reclaim Our Democracy from the Corporations. I am VERY thankful for those who had the foresight to record the talk. It's worth every one of the 72 minutes of your time (52 for the talk, 20 for Q and A).



Toward the end, Nichols cites Fighting Bob LaFollette, Wisconsin Republican turned Progressive, who rightfully taught that the reality is that we have a permanent struggle in this country. It's not a win once and for all time struggle. We know now that we are in a gilded age.

Robert “Fighting Bob” La Follette, the populist governor, U.S. Senator, and presidential candidate from Wisconsin who founded the Progressive Party and spent his career battling the corrupting, impoverishing and anti-democratic influence of big moneyed interests over government and public policy.    

This meshes with Machiavellian Democracy which,

then capitalizes on ever-present moments of aristocratic oppression by seeking and putting in place institutional arrangements through which the people vigorously and effectively respond to the grandi's oppressive schemes and actions; it empowers the people to halt the grandi's insolent behavior, punish those who are especially guilty of it and establish new laws that reset the grandi's institutional boundaries for future action. (McCormick, p. 31) (emphasis mine)

Two years ago in February, Nichols spoke in Phoenix at an event, along with Sen. Bernie Sanders, and touched on his then recently released book UPRISING. In the last year, we have seen progressive Arizonans (and some that might not identify themselves as such) taking vigorous and effective action to stop the Voter Suppression Act (#StopHB2305), stop the religious oppression bill SB1062, and put the brakes on GOP plans to aggressively expand the Alt-Schools fiasco. Let's not forget Kavanagh's $900,000 wet kiss to the private prison industry. Populist outrage put a stop to that, just like it has his bathroom bills and some other cockamamie ideas he's come up with to oppress people.

Those actions did not take place by accident, but rather by design.

Despite in-state pundits not having (YET) denounced their disrespect for legislative Democrats, don't be fooled. It took a village... in this case, it took Democratic lawmakers (whose influence is on the upswing because of and) along with grassroots activism, boots on the ground protest and populist (non-corporate) media. Okay, bold reporting by a handful of journalists employed by corporate media helped some too.

Anyway, Nichols closed his talk in Kansas City by saying,

The only thing that will destroy America is if YOU decide it's [reclaiming Democracy from the corporations] too much for you to do. Because the fact of the matter is that every generation has fixed the thing. From Tom Paine on. And now we're putting the responsibility in your hand. The great anthropologist Claude Levi Strauss hated it when someone would ask, "when was the Golden Age?" Because that suggested this is not the Golden Age. We have to stop thinking that way and to start thinking that the Golden Age is in us.

The most powerful tool money has in this [political] process is the suggestion that it will always win. That's much more powerful than anything else. WE have immense power within us to fix this thing. We have fixed this thing again and again and again. We can live in the greatest time in history. It only requires us to engage.

So, in this season for high school and college commencement ceremonies, let's get started with a summer of burning up the chaff of Republicans like Andy Biggshot, Tobin, Kavanagh, Yarbrough... and especially Tom Horne.

On the subject of commencements, Admiral William H McRaven, commander of U.S Special Operations Command gave a pretty inspiring speech to the 2014 graduating class of the University of Texas. McRaven, by the way, graduated from UT in 1977.

He cites the UT motto, "What starts here changes the world," then goes on to share some insights on how to do just that.

AZ Legistature -- fix CPS... or maybe it's time to reflect on the Beatles

Anyone who consumes news in Arizona knows by now that Gov. Brewer has called the legislature into special session to begin Tuesday, after the three day weekend for Memorial Day, to address the child safety crisis in Arizona government.

Addressing the top priority highlighted in Governor Brewer’s 2014 State of the State policy agenda, this reform proposal statutorily creates and funds the Department of Child Safety – a new, stand-alone agency whose sole focus is the safety of Arizona’s children.

“There can be no higher priority for our state than the safety of its children, who for too long have been failed by a system plagued by a lack of transparency and accountability, a shortage of resources, a massive backlog of cases and a flawed focus,” said Governor Brewer. “If we do not act strategically – and soon – to reverse this damage, the crisis will only continue to worsen. It is time that we establish a new Department – with a mission focused on child safety, a culture conducive to fulfilling that mission , and the resources to do the job.” (emphasis mine)

This is the statement of a person who takes seriously what she has been charged by the people of Arizona to do in light of the problems that have surfaced time and again without the legislature or the executive branch resolving them, for decades. Here's a link to Brewer's proposal. A 36-page PowerPoint presentation about the proposal can be downloaded here.

It is not the statement of a politician looking to get elected or re-elected. But the legislators, who will meet on the day before the deadline for filing nominating petitions (which is Wednesday, May 28) for their re-election campaigns, will be put in a unique situation where the people of Arizona will be readily able to hold those lawmakers accountable.

In the PowerPoint, Brewer quotes Ronald Reagan,

It has fallen to us, in our time, to undo damage that was a long time in the making, and to begin the hard but necessary task of building a better future for ourselves and our children.”

Indeed, the problems surrounding child safety have been festering for decades. The root causes for family stresses that make this function of government necessary will not be resolved with this session or whatever the legislature passes.

Nevertheless, this IS a necessary function of government as the provider of last resort AND as the body to which the people delegate the power to maintain civil society. It IS a requisite function of the social safety net that must be maintained as a part of the Social Contract that gives American government legitimacy.

I wonder just how boldly resistant to spending state taxpayer funding our friend John Kavanagh, chair of House Appropriations will be.

Oh please, John, make it easy to scuttle your 2014 campaign. Oh, wait, you may already have done so.



Easy or not, your campaign, John, will be scuttled. It IS time for a revolution in political thinking in Arizona.

CBS 5 Investigates -- Lobbyist gifts; are they really BRIBES? UPDATED 5-25-14

CBS5AZ investigative reporter Morgan Loew dug through raw data obtained from the Arizona Secretary of State on (reported) lobbyist bribes, er, gifts to state lawmakers. Here's his report.



Current House Speaker (and CD1 Republican primary candidate) Andy Tobin (R-LD1/Paulden), a known prevaricator (he told Loew one thing and did the opposite, likely without giving it a second thought), said (in a written statement to CBS5AZ) that he supports "increased gift transparency." Tobin is currently ranked number two on Loews list. Because he is Speaker, he has more power to set the policy agenda than almost every other member of the legislature.

Because they never do anything tangible about the problem, "supporting gift transparency" is really GOP code for "we're not going to make it any easier for you to find out who's kissing our bee-hinds or giving us trips and other entertainment."

ALEC chair Rep. Debbie Lesko, on the other hand, said (in Loew's video), "There's nothing wrong with what we're doing. It's [ALEC] a great organization."

Right, nothing wrong, except that it is THE preeminent vehicle for ensuring, as Machiavelli put it LONG ago, the domination, exploitation and oppression of the GRANDI over the POPOLO.

Loew's interview with behavioral scientist Robert Cialdini is tremendous. In the 1980s, Cialdini literally wrote the book on INFLUENCE. In another video, he puts it this way, "All cultures teach their children that you must not take without giving in return." This is no longer in dispute. He did the research. It is scientific fact.

Loew's list of the top 5 lawmakers in terms of taking lobbyist gifts and entertainment (this story doesn't even consider campaign contributions, that's a whole other dimension to our elected state officials groveling to curry favor from lobbyists) consists of:

1. Sen. Don Shooter (R-LD13/Yuma) -- running for re-election
2. Rep. Andy Tobin -- running for Congress
3. Sen. Kimberly Yee (R-LD20/North Phoenix) -- running for re-election
4. Rep. Jeff Dial (R-LD18/Ahwatukee) -- this year running for state senate
5. Rep. Tom Forese (R-LD17/Chandler) -- this year running for Corporation Commission. 

For more on Morgan Loew's report and to check the database to see how much lobbyists spent influencing your state lawmaker go to CBS5AZ.

You think that I'm exaggerating any of this? If anything, I've not been able to effectively illustrate the magnitude of the problem.

Clearly, Republicans are not the only ones who have their hands out to lobbyists. But as you can see, Republicans are at the top of the list at the State Capitol. This very much does directly impact public policy in Arizona.

Republicans cloak pretty much all of their public policy endeavors in terms of either being pro-business or, using Orwellian double-speak, they claim their Dominionist bills are about freedom.

On the other hand, what you don't see debated (even though Democrats may introduce bills along these lines) are pro-family economic measures like a living minimum wage and emergency family leave. You don't see pro-life bills debated to eliminate the death penalty, even though it's obvious that there have been innocent people executed. And you don't see lobbyist gift bans or ideas for strengthening the Clean Elections system.

What you do see, every year, are hateful, spiteful bills to oppress. SB1062 was all about religious oppression. You do see, this year especially, not at all subtle ways to undermine public education and promote private schools which are unaccountable to the people both financially and in the curriculum they use to indoctrinate our children.

We CAN and MUST change the tone of public policy debates and lawmaking in Arizona. We can start this year by picking up seats in the Arizona House, winning the Senate and the governor's office.

• John "Private Prison suck-up" Kavanagh is vulnerable and faces a credible Democratic opponent in Paula Pennypacker.
• Steven Yarbrough (R-LD17/Chandler), a key promoter of the Alt-Schools debacle, received the most expensive gift -- $2,400 trip to a conference paid for by Cathi Herrod's dubious organization -- and is as vulnerable as former House Speaker Jeff Groscost was after engineering the Alt-Fuels debacle. He faces a solid Democratic opponent in Kristie O'Brien.
• Kimberly Yee, number three on the list compiled by CBS5AZ, who also thumbed her nose at US Armed Forces veterans suffering PTSD, is being challenged by Glendale Union High School Board President, Patty Kennedy.
• Jeff Dial (number 4 on Loew's list) will face off with Democratic activist and long-time educator Janie Hydrick. 
• Don Shooter (number ONE on Loew's list) will not be unopposed this year. He has a primary election opponent (Toby Farmer, who has been collecting signatures for more than a year, but has not yet filed them) and Democrat Terri Woodmansee, who plans to file her signatures on Tuesday.

You can also be confident that I (and others, like Morgan Loew) will keep just as close of an eye on Arizona lawmakers when Democrats take control at the Capitol, whether it's this year or down the road. But the tone will change dramatically when Democrats pick up at least two more seats in the Senate. 

-----

UPDATED to include Terri Woodmansee as the Democratic opponent to Don Shooter for the senate seat to represent LD13.

NO PLACE TO HIDE -- from Dominionist oppression? Not quite yet.

The internet has long been heralded as an unprecedented instrument of democratization and liberalization, even emancipation. But in the eyes of the US government, this global network and other types of communications technology threaten to undermine American power...

Ultimately, beyond diplomatic manipulation and economic gain, a system of ubiquitous spying allows the United States to maintain its grip on the world. When the United States is able to know everything that everyone is doing, saying, thinking, and planning -- its own citizens, foreign populations, international corporations, other government leaders -- its power over those factions is maximized...

That's doubly true if the government operates at ever greater levels of secrecy. The secrecy creates a one-way mirror: the US government sees what everyone else in the world does, including its own population, while no one sees its own actions. It is the ultimate imbalance, permitting the most dangerous of all human conditions: the exercise of limitless power with no transparency or accountability. p 169, No Place to Hide by Glenn Greenwald. Published May 13, 2014 (emphasis mine)

That's essentially how Greenwald wraps up chapter three, "Collect it All," which in his latest book (released just days ago) describes, in exquisite detail, the mission of the National Security Agency (NSA).

Now, think about the 2014 regular session of the Arizona Legislature. What did we observe? First and foremost, the insidious wranglings of Cathi Herrod attempting to stealthily transform our state into a Dominionist dystopia (well, she probably doesn't think of it in those terms).

We KNOW that Cathi Herrod has owned and operated Steve Yarbrough (ostensibly R-LD17/Chandler) and the legislature in general for several years. Besides me, the Arizona Republic and the Phoenix New Times and other publications have documented her inordinate influence on state lawmaking and public policy.

SB1062 was driven by Herrod. She pulls the strings that make the GOP do what they do at the Capitol.

She uses Orwellian language to make people think that oppression is freedom. The foundation of her advocacy is Christian Dominionism. And oppression really IS oppression. John Kavanagh's bathroom bill was all about oppression. Cathi Herrod's SB1062 was all about oppression. GOP labor bills are all about oppression.

Cathi Herrod will not be satisfied until she has imposed her brand of theocracy on all of Arizona. Her allies have their sights set on the entire nation. Just this week, Dominionist Republican Ben Sasse won the Nebraska GOP primary nomination for the US Senate seat being vacated at the end of the year by retiring Sen. Mike Johanns. Sasse's campaign website looks like an advertisement for passage of SB1062.

Ben Sasse believes that our right to the free exercise of religion is co-equal to our right to life. This is not a negotiable issue. Government cannot force citizens to violate their religious beliefs under any circumstances. He will fight for the right of all Americans to act in accordance with their conscience.

Of course, if all you had to go by was one side of the story, Sasse's (or Herrod's), why would anyone be opposed to allowing Americans to act in accordance with their conscience? That's where critical thinking becomes indispensable.

How many people convicted of passing bad checks violated their consciences? What about corporations that fraudulently foreclosed on untold numbers of American homeowners? Just how tolerant, by the way, do you think Sasse or Herrod would be to practitioners of Islam, or Wicca, or Mayan ritual human sacrifice?

Such claims by Dominionists are red herrings meant to distract from their true intent, which is to LIMIT the religious freedom of anyone not accepting their world view or the right of others to act on their own sincerely held beliefs (like same sex marriage or a woman's sovereign right to self-determination over her own health care decisions)?

Are YOU ready to hand the keys to the most powerful government on the face of the earth over to religious oppressors?

We've had a taste of UPRISING in Arizona. It's time to institutionalize it by changing who is in control at the Arizona Capitol.

Dominionists fight to oppress our children in Tempe

Last week, the Tempe Union High School District Governing Board voted 3-2 in favor of a resolution to develop a sex ed curriculum based on a framework similar to the Family Life and Sexual Health (FLASH) program. Dominionists (Alliance Defending "Freedom"... which really means oppression of high school students by keeping them from learning science (fact) based information on the subject) were and apparently still are in a tizzy over the vote.

The FLASH framework includes,

The sexual violence prevention lessons are further based on the Social-Ecological Model and the Confluence Model. The Social Ecological model seeks to impact factors that support violence at four levels: 1) individual, 2) relationship, 3) community and 4) society. FLASH focuses primarily on the levels 2, 3 and 4. The use of scenarios, introspective work and social norm re-setting addresses these levels. Visit the CDC's Violence Prevention website for more information: www.cdc.gov/ncipc/dvp/social-ecological-model_dvp.htm

TUHSD Governing Board member and Tempe City Council candidate David Schapira made the motion in last week's board meeting, after Cathi Herrod's oppression troops did their best to demonize David and Planned Parenthood.



What exactly does Cathi Herrod and her ilk have against sexual violence prevention?

I stand with David Schapira and I stand with Planned Parenthood.

Tell the Orwellian (and narcissistically/ironically) named Alliance Defending Freedom that we want our students to grow up having as much fact based knowledge as possible rather than living in the oppression of ignorance and sexual violence.

Guest post -- Hey Bob Robb, WHAT partisan games did the IRC play? UPDATED 9:17pm MST 5-12-14

Robert Robb's column "Judges find partisan games with redistricting map" grossly distorts the federal court's recent decision finding that Arizona's legislative districts are constitutional (Arizona Republic Opinions, Wednesday).

The Republican-backed lawsuit claimed that minor population deviations in the legislative districts were the result of partisan bias favoring Democrats. The facts tell a different story, one Robb ignores.

The majority of the three-judge panel found that the desire to comply with the Voting Rights Act, not partisanship, was the predominant reason for the minor population deviations the Arizona Independent Redistricting Commission made in some of Arizona's 30 legislative districts.

In other words, it was compliance with federal law, not partisan bias, that motivated the commission's redistricting work.

Under the law at the time, Arizona could not use new voting maps without getting "preclearance" from the federal government that the maps complied with the Voting Rights Act. As a result of the commission's work, the Department of Justice approved Arizona's legislative districts on the first attempt, something Arizona had never done before.

So what exactly are the "partisan games" Robb says the judges found?

The majority opinion found that partisanship played some role when a change was proposed for Legislative District 8 in Pinal County. The facts showed that the commission approved changes that made District 8 more competitive and also improved minority voting strength. Favoring competitive districts is part of the commission's responsibilities under Arizona's Constitution. District 8 became one of a handful of legislative districts in which either party's candidate could prevail.

Competitiveness aside, complying with the Voting Rights Act played a significant part in District 8's changes.

As the court noted, a majority of the commission supported the District 8 changes only after the commission was advised that the changes would improve the state's chances of receiving preclearance.

The court's finding that partisanship "may have played some role" in one proposal for one of 30 districts does not add up to what Robb describes as a "hijacked" process or the lawsuit's claim that partisanship drove the whole map.

After all, if there was a partisan conspiracy bent on propping up Democrats, it failed: Republicans remain in control of the Arizona Legislature, with comfortable majorities in both the House and Senate.

Robb's concern about partisan hijacking is contradicted by his concern about the Republican commissioners not being able to choose their own counsel to represent the commission. He says this "defeats the purpose of having bipartisan counsel." How, exactly? The commission's lawyers are ethically required to represent the entire commission and not individual commissioners or partisan interests.

This lawsuit provided conspiracy theorists their day in court, and they lost. The court found no conspiracy among the commission's chair and its two Democratic members to draw maps that favor Democrats.

The court found no partisan bias in the mapping consultant's work, no partisan bias in the hiring of lawyers and, most importantly, no violation of federal law.

The Arizona Independent Redistricting Commission completed its work in public meetings in which anyone who wanted to do so could express their views. Its many maps and statistical tables are available to anyone.

Arizona's redistricting was a thorough, public process that produced maps that comply with the law. The commission did its job under immense pressure, and did it well.

Mary O'Grady and Joseph Kanefield are attorneys for the Arizona Independent Redistricting Commission. Paul Charlton is an attorney for commission chairwoman Colleen Coyle Mathis.

-----

The entire official record of the proceedings of the AIRC is available at the commission's website. The Arizona Eagletarian began publishing additional details and observations on the process in December 2010 and continues through the current time as necessary.

UPDATE UPDATE UPDATE

I should note that the headline is a rhetorical question. However, if Mr. Robb would like to respond I would be amenable to publishing his response.

However, our good friend John "Private Prison sycophant" Kavanagh submitted comments for my consideration. In this instance, he appeared to be wanting to speak FOR Mr. Robb, which I don't think is at all necessary. He also attempted, much like he's been told repeatedly that I will NOT let him do here, to make the debate about what he wants it to be about. Because I have told him that repeatedly, I need offer no other explanation for refusing to approve his comments.

John, if you want to respond to my previous post, about Machiavellian Democracy, and stay on topic, I'd love to get your take. Of course, I doubt you have the emotional honesty to recognize your policy efforts (and bill proposals) as oppressive when they actually are.

On another note, I have reviewed Judge Wake's 29-page dissenting opinion in Harris and plan to write up my analysis soon. I actually found it encouraging rather than maddening, in part because Wake uses so much hyperbole and non-substantive loaded language that it strengthens my hunch that he wrote it for Tea Party activists, not for Supreme Court justices.

Coming soon to an Arizona near you... Machiavellian Democracy!

The cure for apathy is empowerment.

Let's just figure that voter apathy, as a general condition, is a given. If you want me to expound on that point, challenge me in comments to this post.

We also know, from increasingly frequent reports over the last couple of years, that inequality has encroached upon America and Arizona in a pervasive manner.

Can the financial condition or situation the typical American finds themselves in reasonably be considered oppressive?  Should anyone working a full-time job be unable to pull one's family out of poverty? Or be unable to keep up payments on an underwater mortgage? Or otherwise be unable to enjoy the fruits of one's hard work?

Really, what matters is whether the typical Arizonan considers the economic climate (not just the summer temperatures) oppressive.

As I reported in my previous post, Niccolo Machiavelli apparently wasn't a Machiavellian when it came right down to it. His most currently famous writing, The Prince, likely was more of a warning to the people than a blueprint for princes on how to deceive and subjugate the people.

In Machiavellian Democracy, John P. McCormick expounds at great length on Machiavelli's passion for the "republic" as a form of political structure. The book sheds light on what so many have experienced at the hand of the ruling class in Arizona. Of course, the GOP has consistently sought and imposed ways to dominate, exploit and yes, oppress the people.

McCormick and Machiavelli, besides illuminating what's been done in the shadows, figuratively, if not literally, are tremendously empowering. Take this passage, for example (from page 31),

Machiavelli's analysis asks readers to ponder whether expansive, formal checking by one political actor (the people) on another political actor's (the nobility's) governing does not itself entail a form of governing; whether it is not, in itself, a substantive form of participation in rule.

Machiavellian Democracy then capitalizes on ever-present moments of aristocratic oppression by seeking and putting in place institutional arrangements through which the people vigorously and effectively respond to the grandi's* oppressive schemes and actions; it empowers the people to halt the grandi's insolent behavior, punish those who are especially guilty of it, and establish new laws that reset the grandi's institutional boundaries for future action. 

This passage is instructive when we look back on the first six weeks of the 2014 regular session of the Arizona Legislature. On the first day of the session, Yarbrough introduced the unmistakably oppressive SB1062. Framing it as religious liberty does NOT remove the underlying purpose, oppressing the people they demonize. In Cathi Herrod's case, they demonize certain of the people (popolo, not the grandi) in order to drive fundraising and further an agenda of oppression.

Herrod was astoundingly freaked out at the backlash against her bill and could do nothing but prevaricate about the actual intent of the bill and about the people who ROSE UP to denounce it and demand it's veto.

Nevertheless, protests at the Capitol, tens of thousands of online protest petition signatures, actually getting the attention of corporate media, set the course for the only thing the governor could do about it. On February 26, she vetoed SB1062. Brewer listened. The business elite and corporate media pundits may have claimed that the popular UPRISING had nothing to do with the governor's veto. That's just propaganda in hopes of fooling the people when another incident arises.

However, though chambers of commerce got the governor's staffers to answer their phone calls, it was the National Football League that grabbed the attention of the chambers. The people's UPRISING grabbed the attention of the NFL and clamped down hard. Thus chastising the troglodytes in the legislature who refused to heed the warning.

At the end of the 2013 regular session, the GOP majority passed the unmistakably oppressive Voter Suppression Bill, #StopHB2305. The GOP underestimated the people. This year, finding the warning (in the form of successfully qualifying the referendum for the ballot) unavoidable this time, to mitigate their own stupidity, the GOP repealed HB2305 rather than face the wrath of the voters this year in November. Brewer signed HB2196 (the repeal) on February 27, the day after she vetoed SB1062.

Cutting through all of the rhetorical bullshit, the GOP effort in each of these situations represents substantive oppression of the people by the grandi.

Look back at how ProgressNow Arizona exec. director Robbie Sherwood summarized the legislative session. For example,

Senate Bill 1062 vetoed. Cathi Herrod’s legislation to condone discrimination against the LGBTQ community based on religious objections inspired thousands of young Arizonans to protest and become politically active, many for the first time. The deafening community outcry and embarrassing national spotlight forced Gov. Jan Brewer to veto the bill.

Business elites and other skeptics have suggested other explanations for how this played out. But Robbie's assessment matches Machiavelli's. The popolo lashed out loudly and emphatically. Those who needed to hear and heed (the grandi), heard and heeded. After putting on a show of thoughtful analysis, Gov. Brewer did what everyone knew she had to do. Of course, one of those (grandi) who is oppressively too big for his britches (John Kavanagh), claimed (for a time) that Brewer was going to sign the bill into law.

John Kavanagh chided me last fall about my use of the word "hubris." Well, I can think of no better word to describe GOP lawmakers who, even though they see the writing on the wall, do the bidding of Cathi Herrod, ALEC and the private prison industry. ALL of whom have promulgated oppressive policies. All of whom got it, at least to some extent already, stuffed back in their faces. More from McCormick's book,

Machiavelli's Discourses demonstrates that the people are passive and deferential... but that when provoked with threats to their liberty, the people can react with enough spirit and virtue to punish transgressors and to deter future instances of oppression. (emphasis mine)

It is VERY important, however, to note that this is not a once and for all deal. The fight goes on every day and every year, every decade and every century. The grandi have, according to McCormick's exposition of Machiavelli, insatiable appetite for oppressing the people. Frankly, all honest renderings of American history from the beginning, show this to be true.

Bill Moyers sheds light on what we recognize these days as Democratic lawmakers being too soft.

One of our two major parties is dominated by extremists dedicated to destroying the social contract and the other party has been so enfeebled by two decades of collaboration with the donor class it can offer only feeble resistance to the forces that are devastating everyday people. Our economy is a plantation run for the aristocrats — the CEOs, hedge funds, private equity firms — while the field hands are left with the scraps. Go see Robert Reich’s documentary Inequality for All. It’s all right there.

Machiavelli empowers the people.

Elizabeth Warren has given us A Fighting Chance (very empowering). And Ralph Nader empowers and emboldens us with his new book, Unstoppable: the Emerging Left-Right Alliance to Dismantle the Corporate State.

The cure for apathy is empowerment.

In Arizona, the emerging empowerment of the people over the grandi hasn't happened overnight. Key individuals and groups have been at it for a while and will continue to fight that good fight.

Join us.

-----

* Grandi, literally the Great. As used by Machiavelli, it wasn't the size of a latte at Starbucks, but rather one of the terms he used in referring to the aristocracy. Or, "The grandi 'who wish to command and dominate the people' and the popolo 'who desire only not to be commanded or oppressed by the grandi.'"

Government is raw power... to do what?

Remember that priceless gem given to us a month or so ago by Arizona Senate President Andy Biggshot?

Government is raw power. Government is raw power. Government is not compassionate or merciful. That is left to individuals, but government is raw power where it imposes its will on people.

Of course, Biggshot seemed to be of the mind that he was fighting for small business and individual taxpayers when he made that statement which he (probably wrongfully) attributed to George Washington.

The usual meme he and his ilk use to rationalize and justify decimation of public education and every other function of Arizona government is "economic growth." For example, business reporter Russ Wiles writing in the Arizona Republic declared in February,

Arizona’s economic performance could outpace that of the nation this year, with the gap widening in 2015, according to a new report.

An economic update from BMO Capital Markets* [an investment bank, apparently invested first and foremost in propaganda] sees Arizona’s economy growing 3.2 percent this year and 3.5 percent next. Both results would beat the nation’s economy, which BMO expects to expand 2.9 percent in 2014 and 3 percent in 2015.

He hedged, however, writing during the time between when the legislature passed SB1062 and when Gov. Brewer vetoed the bill.

SB 1062 hasn’t yet been signed or vetoed by Gov. Jan Brewer. Critics fear a backlash that could include a loss of tourism and convention business that would crimp the state’s economic growth.

Setting aside the Dominionist bent of many of our GOP lawmakers, what do we REALLY get from the kind of policies that Biggshot and his GOP comrades have pushed on Arizona the last couple of decades? From arizonaindicators.org/economy (a website maintained by the Morrison Institute for Public Policy)

Measured by gross product per employee or earnings per employee, Arizona’s productivity is further below the national average than in the past. On all indicators of individual prosperity, such as per capita personal income and average wage, Arizona is below the national average—and generally has lost ground over time. Individual prosperity, sometimes referred to as economic well-being, is the ultimate goal to which communities strive. (emphasis mine)

So, what's the REAL point Biggshot was making with his hubristic declaration of power?

Surprisingly, or maybe not, the most poignant -- and salient -- insight we can get to understand the dynamics of the GOP dominating Arizona politics over the years can be found in the writings of Niccolo Machiavelli. Conservapedia's article on the Italian Renaissance political theorist states,

During his time and long afterward, Machiavelli was considered to have been inspired by the devil, and his name has been used for centuries to describe the use or approval of unscrupulous, self-serving political action. The Prince made "Machiavellian" a byword for deceit, despotism and political manipulation, as in a politician who spends all his time and effort on obtaining and retaining power for himself. 

Was Machiavelli a Machiavellian? The question much debated by scholars is whether Machiavelli intended The Prince to be an actual guide book in how to be a ruthless tyrant, or--as most scholars argue--wrote it as a warning to republican citizens... Machiavelli, most scholars believe, was dedicated to republicanism as the best form of government and opposed tyranny. The Prince was a warning that it could happen like this if citizens let down their guard.

Arizona voters will no longer be caught letting their guard down because we NOW can see through the BULLSHIT propagated by Andy Biggshot and others of his ilk.

From Machiavelli's Discourses, as set forth by University of Chicago political scientist John P McCormick, in Machiavellian Democracy (2011),

Machiavelli consistently entwines popular morality with civic ideals like "common good" and "public freedom" (D I.4) For instance, he insists: "The desires of free peoples are rarely pernicious to freedom because they arise either from being oppressed or from suspicion that they may be oppressed." ... Thus, the people prove two of Machiavelli's points in this incident: they exhibit an oppressive appetite only in response to oppression inflicted upon them; and they do so honestly, overtly, without any trace of subterfuge or guile...

After all, the empirical evidence marshalled by Machiavelli suggests that aristocrats rely on such qualities, and on the material advantages resulting from them, first and foremost to oppress others, to overturn regimes, and not to rule wisely or advance the common good...

These elections... underscore how indispensable for good government are the people's active challenges to elite privilege... (emphasis mine)

Andy Biggshot left us no question, he does NOT advocate in favor of the common good.

Perhaps the best reflection on this type of "leadership" came recently from Sen. Elizabeth Warren (D- MA), who summed it up when she called out the GOP,

The Republican vision is clear: "I've got mine, the rest of you are on your own."

Some might not like it when Sen. Warren or other voices standing against the oppression speak up, but there can be no mistaking that this was the essence of Andy Biggshot's message that day debating the FY2015 state budget.

By the way, it's so easy for people who only look at the current state of affairs in America to be cynical and pessimistic. They may point to an apathetic electorate. But when these same people lift up their eyes and look to history -- after all, there is NO NEW thing under the sun -- the shadow lifts and light shines on a brighter future.

The cure for apathy is empowerment. Machiavelli empowers not The Prince, but the popolo (the people). Ideas and insight are powerful things.

That prince is highly esteemed who conveys this impression of himself, and he who is highly esteemed is not easily conspired against; for, provided it is well known that he is an excellent man and revered by his people, he can only be attacked with difficulty. 

and...

I say that every prince must desire to be considered merciful and not cruel.

Andy Biggshot is a prince not highly revered by his people. And he projected himself as not even considering mercy as having a place in his principality. His authority will be challenged, mightily. In fact, if Democrats pick up three seats (do-able) in this year's election, he will be kicked off of his throne (senate presidency).

-----

This takes us back to the contentious fights over redistricting, still going on in court, over the current maps. Rather than fight for the common good, the various Republicans who have been plaintiffs in each of the three lawsuits have instead been fighting over the privilege of NOT having to even appeal to the common good in elections. If they win these lawsuits, it's easy to surmise, they can rest assured they may safely ignore the interests of the people in policy and lawmaking and still retain their raw government power.

So far, however, they've been handed losses in two of the three lawsuits. The other suit may have been abandoned. One of the losses has already been appealed to the Supreme Court. The other may be appealed soon.

Nevertheless, arrogance in how they conducted themselves (GOP state lawmakers) in the 2014 legislative session demonstrated profound indifference to the common good. Citing just one example for each of three GOP candidates for senate seats this year (two of whom are incumbents, one is the term limited House Appropriations chairman), I believe these three are demonstrably vulnerable this year.

• Steven Yarbrough (R-LD17/Chandler) Cathi Herrod's point man on several bills, he was the main pusher behind SB1062. 
• Kimberly Yee (R-LD20/NorthCentral Phoenix) put the kibosh on a research study for use of medical marijuana to treat PTSD. Why would anyone not be willing to explore mitigation of PTSD in war veterans?
• John Kavanagh (R-LD23/Fountain Hills) brazenly and with no remorse after getting caught, tried using his position as appropriations chairman to give a nice, big, juicy wet kiss ($900,000, no strings attached) to his benefactor, private prison operator GEO Group.

I realize it's a longshot. But it's very possible. One need only look to how the Alt-fuels debacle ended the political career of former House Speaker Jeff Groscost. In 2002, Democrat Jay Blanchard defeated Groscost in Gilbert for a seat in the Senate. That election had major ramifications on the senate for the next term.

The people, even rank and file Republican voters, don't like to be taken for fools. But Yarbrough, Yee and Kavanagh didn't think of that when they were working against the interests of the people.

Therefore, go forth Arizona Democrats, tell the story with confidence and clarity. The future, depending on climate change, is bright.

-----

* BMO Capital Markets is part of one of North America’s largest universal banks as measured by assets (#8) and market capitalization (#9); published by Bloomberg as of Mar 15, 2012.

Justice Ginsberg reflects on her time in the Supreme Court; Wake's Harris dissent

The occasion was delivery of the annual John P. Frank memorial lecture, sponsored by Arizona State University's School of Social Transformation. The event was really a conversation with Justice Ruth Bader Ginsberg, along with her friend, retired Justice Sandra Day O'Connor, moderated by Senior Ninth Circuit Court of Appeals Judge Mary Schroeder. It was a nearly full house at Gammage Auditorium.

For me, the most salient point came when Ginsberg discussed some of her most memorable dissenting opinions. She cited a dissenting opinion by Justices Brandeis and Holmes in 1919 that eventually inspired change in legal treatment of Free Speech in America. That prefaced mention of her dissent in Ledbetter v Goodyear Tire and Rubber Co (2007).

Lilly Ledbetter had been an area manager for Goodyear for a long time when she learned that others with far less time in the same position were being paid substantially more than she was. Ledbetter sued under Title VII of the Civil Rights Act of 1964. Because the unlawful employment practice started so long before she sued, the majority opinion held that she was barred by statute of limitations language in Title VII from making a claim. Because of Ginsberg's dissenting opinion, Congress passed the Lilly Ledbetter Fair Pay Act of 2009. (Arizona's 2 GOP senators (Kyl/McCain) voted NAY; its 8 Representatives voted along party lines, 5 AYE/3 NAY; President Obama signed the bill into law January 29, 2009)

A bill to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.(emphasis mine)

Which now brings me to the District Court decision in Harris v AIRC. Ginsberg's comments shed important light on the 2-1 decision denying the Tea people a victory over Independent Redistricting. Thus far, I've read the 55-page per curium opinion ostensibly authored by Circuit Court Judge Clifton and the 16-page concurring opinion written by Judge Silver. Because Judge Wake's dissenting opinion is not of immediate consequence, I left it to last and will read it in the next few days.

But referenced in Clifton's and Silver's opinions are sharp rebukes to Wake's. For example, from my previous post, on the per curium opinion, Footnote 11 reads,

Similarly, the dissenting opinion contends, at 20, that the Department of Justice “has never required unequal population for preclearance in the 48 years of administering Section 5.” That assertion is not proven. More importantly, it is an irrelevant straw man. For preclearance purposes, any variation in population is a means, not an end. There would never be reason for the Department to “require[] unequal population.” That is not the Department’s goal. The question is whether a state might improve its chances of obtaining preclearance by presenting a plan that includes minor population variations. The evidence presented to us supported that proposition, and neither plaintiffs nor the dissenting opinion deny that fact. (emphasis mine)

That would seem to nullify Wake's opinion in the eyes of the Supreme Court, generally speaking. However, we know the current SCOTUS leans strongly to the right, as apparently does Wake. Yet, for SCOTUS, in this case, making a partisan ruling in favor of the plaintiffs will, in fact, cut both ways. Politics is like a pendulum. Dominance the GOP has enjoyed over lawmaking in Arizona for the last couple of decades is likely to swing back the toward the left.

BUT, if Wake wasn't writing his opinion for the court but to reignite the political firestorm, hoping to undermine Independent Redistricting for the 2021 cycle, the straw man fallacy may simply not have been a particular concern for him.

Lord knows, Wes Harris' tirades during public comments in AIRC hearings often held little to no relation to logic and rationality. Oh, and apparently the Arizona Republic's Bob Robb doesn't care about the fallacious nature of Wake's arguments either. Maybe Mr. Robb will be taken to school by our good friend John Kavanagh, who considers himself an adamant opponent of fallacies.

Redistricting -- Harris case, majority order

Together with Judge Wake's dissent, this may be where, why and on what basis we'll see Cantelme appeal this judgment to the Supreme Court. Remember that the Harris lead counsel told the Republic last week that, "We are heartened that two judges out of three found partisanship was a motivation,"

Findings of law (P. 41 of the order).

Before requiring the state to justify its deviations, plaintiffs must make a prima facie case of a one-person, one-vote violation. By itself, the existence of minor deviations is insufficient to make out a prima facie case of discrimination. Brown v. Thomson, 462 U.S. 835, 842 (1983). With respect to state legislative districts, the Supreme Court has said that, as a general matter, a “plan with a maximum population deviation under 10% falls within this category of minor deviations.” Id. at 842. Although courts rarely strike down plans with a maximum deviation of less than ten percent, a maximum deviation below ten percent does not insulate the state from liability, but instead merely keeps the burden of proof on the plaintiff...

Because the maximum deviation here is below ten percent, the burden is on plaintiffs to prove that the deviations did not result from the effectuation of legitimate redistricting policies. The primary way in which plaintiffs seek to carry their burden is by showing that the Commission deviated from perfect population equality out of a desire to increase the electoral prospects of Democrats at the expense of Republicans. Plaintiffs argue that partisanship is not a legitimate redistricting policy that can justify population deviations.

The Supreme Court has not decided whether or not political gain is a legitimate state redistricting tool. See Cox, 542 U.S. at 951 (Scalia, J., dissenting) (noting that the Court has not addressed whether a redistricting plan with a maximum deviation under ten percent “may nevertheless be invalidated on the basis of circumstantial evidence of partisan political motivation”). Because we conclude that the redistricting plan here does not violate the Fourteenth Amendment whether or not partisanship is a legitimate redistricting policy, we need not resolve the question. For the purposes of this opinion, we assume, without deciding, that partisanship is not a valid justification for departing from perfect population equality. (emphasis added)

I haven't yet read the entirety of Judge Wake's dissent, but I have to figure Cantelme's working it to find his angle.

From Page 44 of the order:

More importantly, we fail to see how compliance with a federal law concerning voting rights—compliance which is mandatory for a redistricting plan to take effect—cannot justify minor population deviations when, for example, protecting incumbent legislators can. This is, perhaps, our primary disagreement with the dissenting opinion. It too narrowly defines the reasons that may properly be relied upon by a state to draw state legislative districts with wider variations in population. [...]

The dissenting opinion also acknowledges, at 17 & 23, that obtaining preclearance under the Voting Rights Act was a legitimate objective in redistricting. But it contends that pursuit of that objective could not justify even minor variations in population among districts. In practical terms, the dissenting opinion would apparently permit the Commission to consider the preclearance objective only in drawing lines dividing districts of equal sizes. [...]

Plaintiffs and the dissenting opinion, at 19, attempt to reframe the inquiry, arguing that the text of the Voting Rights Act itself does not specifically authorize population deviations. That is correct; there is no specific authorization for population deviations in the text of the legislation. But neither is there specific, textual authorization for population deviations in any of the other legitimate, often uncodified legislative policies that the Supreme Court has held can justify population deviations... The question is not whether the Voting Rights Act specifically authorizes population deviations, but whether seeking preclearance under the Voting Rights Act is a legitimate, rational state goal in the redistricting process. We are satisfied that it is.

The dissenting opinion, at 19, goes a step further and argues that the Voting Rights Act itself prohibits any deviation in exact population equality for the purpose of complying with the Voting Rights Act. No court has so held, and we note that plaintiffs themselves have alleged that the Arizona redistricting plan violates the Equal Protection Clause, not that it violates the Voting Rights Act. We do not read the Act in the same way that the dissenting opinion does.11

Footnote 11:

Similarly, the dissenting opinion contends, at 20, that the Department of Justice “has never required unequal population for preclearance in the 48 years of administering Section 5.” That assertion is not proven. More importantly, it is an irrelevant straw man. For preclearance purposes, any variation in population is a means, not an end. There would never be reason for the Department to “require[] unequal population.” That is not the Department’s goal. The question is whether a state might improve its chances of obtaining preclearance by presenting a plan that includes minor population variations. The evidence presented to us supported that proposition, and neither plaintiffs nor the dissenting opinion deny that fact. (emphasis mine)

On the subject of whether the Supreme Court ruling in Shelby County v Holder (2013) changes anything related to this lawsuit or the responsibility of the AIRC to comply with Section 5 of the Voting Rights Act,

...so long as the Commission was motivated by the requirements of the Voting Rights Act as it reasonably understood them at the time, compliance with the Voting Rights Act served as a legitimate justification for minor population deviations.

I had heard scuttlebutt prior to the Harris trial that there was sharp conflict in general between Judges Silver and Wake. In reading the incredibly strong language in describing Wake's dissenting opinion in a couple of places, I suspect that scuttlebutt might be understating the situation. Nevertheless, the judgment in favor of the AIRC stands. To recap, as I posted last week,

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. (emphasis mine)

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.

And I will be surprised if Cantelme does not appeal the Harris ruling to the Supreme Court.

Redistricting -- Judge Silver's opinion on the Harris case

In her 16-page opinion concurring with the per curium decision and order in the Harris case, Judge Roslyn O. Silver lays out her view of how the plaintiffs (Cantelme) failed to make the case they said they would make that the Arizona Independent Redistricting Commission had, solely and exclusively for unlawfully partisan purposes, diluted the vote of Arizona Republicans in establishing the legislative district map in 2012.

In a section she titled, The Alleged Plot Failed, Silver wrote:

Before directly addressing why I believe plaintiffs failed to prove their case, it is worth noting that the 2012 election using the new map proved their theory has no basis in reality. In the 2012 elections, Republicans won 17 out of 30 (56.6%) senate seats and 36 out of 60 (60%) house seats. As of June 2012, Republicans had a statewide two party registration share of 54.4%. Thus, under the map plaintiffs believe was created to systematically harm Republican electoral chances, Republicans are overrepresented in the legislature. (emphasis added)

Before that, Silver notes, in multiple ways,

By the time of trial, plaintiffs were again describing their claim as grounded on a belief that partisanship was the “sole” explanation for the population deviations. [...]

Plaintiffs repeatedly stated they would establish partisanship as the actual and sole reason for the population deviations and we adopted that as the standard plaintiffs needed to meet. I believe that remains the appropriate standard.

As reported in the Arizona Eagletarian shortly after the trial completed,

The following are disputed questions of fact to be tried:
1. Whether the IRC’s sole reason for the population deviation was partisan advantage and other asserted reasons were pretextual or not in good faith. [...]

I firmly believe that plaintiffs failed to make their case on any of these questions of fact.

More regarding the failed plot:

But it is hard to take plaintiffs’ challenge seriously given that the alleged contrivance against Republicans failed. See Adam Raviv, Unsafe Harbors: One Person, One Vote and Partisan Redistricting, 7 U. Pa. J. Const. L. 1001, 1062 (2005) [Page 12, note 71] (“And certainly it makes sense not to overturn a plan that, whatever the intent of the planners, did not actually hurt their political opponents.”). [...]

Turning to the merits of plaintiffs’ claim, the evidence is overwhelming the final map was a product of the commissioners’s consideration of appropriate redistricting criteria. In particular, the commissioners were concerned with obtaining preclearance on their first attempt. [...]

In fact, it is not even clear whether plaintiffs contend the draft map was the result of partisanship. But if partisanship actually were at the heart of the draft map, and assuming the Republican commissioners were not Democratic sleeper-agents, one would expect the record to be replete with objections by the Republican commissioners. It is not. [...]

Again, the vast majority of the changes to the draft map were agreed to by the Republican commissioners. And as observed by Commissioner Mathis, all of the commissioners are “very strong people” who would have spoken up if they had an objection. I do not believe we are in a better position to divine invidious discrimination than the partisan actors actually involved in the process. [...]

Much more important than the relative lack of objections is that plaintiffs did not identify, with reasonable particularity, the exact changes to the final map they believe were due solely to partisanship. Plaintiffs initially seemed to be claiming every aspect of the final map was due to partisanship. However, at trial and in their post-trial briefing, they focused primarily on three districts: Districts 8, 24, and 26... As for District 8, the per curiam opinion concludes partisanship did motivate certain changes. At trial, however, Commissioner McNulty explained those changes were meant to make District 8 more competitive. I found her explanation reasonable and credible... More importantly, even if Commissioner McNulty did make changes to District 8 with partisanship in mind, that is not enough.

Evidence that one commissioner was motivated by partisanship is only a good starting point and it is a given that four of the five commissioners always have at least some partisan self-interest. There must be evidence that two other commissioners had that same motivation... I saw no such evidence.

In the end, Plaintiffs’ evidence of partisanship consisted largely of pointing to the final map and asking the Court to conclude by inference only that the pattern reflected in the map established an intent to discriminate against Republicans. [...]

The final map represents an attempt to satisfy legitimate redistricting criteria, especially the Voting Rights Act. As observed in the per curiam opinion, “changes that strengthened minority ability-to-elect districts were also changes that improved the prospects for electing Democratic candidates.” In other words, the changes the Commission made to strengthen its case for complying with the Voting Rights Act also had the effect of improving Democratic prospects. In light of this, the alleged pattern in the final map easily is explainable on grounds other than partisanship.

-----

Obviously, I didn't include every salient point in posting excerpts from Judge Silver's opinion. So, by all means feast your eyes and your mind on it for yourself if you want to know more.

I, and at least some other interested parties have been operating under the assumption that Cantelme would certainly appeal to the Supreme Court. The Arizona Republic write up on the Harris decision says, however,

David Cantelme, who represented the plaintiffs, said attorneys are studying the opinion and will decide later if they will appeal. Any appeal would go directly to the U.S. Supreme Court.

"We are heartened that two judges out of three found partisanship was a motivation," Cantelme said. But one of the two concluded it was not a primary motivation, thus denying plaintiffs the win they sought. 

With how clear and specific Silver's opinion is in parsing the issue of partisanship, Cantelme (and his Dark Money funders) may actually have second thoughts. Then again, I still think an appeal to the Supreme Court is likely.

The Joe Show -- private screening May 14 in Phoenix

Save the date!    Mark you calendar!    BE there or be square!


You thought it would be in theaters, but so far it has only been shown to audiences at a film festival. Now is your chance to see it and meet the director!

A fundraiser for my friend Ken Clark for his 2014 campaign for an LD24 seat in the Arizona House of Representatives. Ken is a veteran lawmaker and was co-chair of the Arizona Competitive Districts Coalition beginning in 2010. Having worked with Ken during the 2011 redistricting process to advocate for as many competitive districts as possible, I support him wholeheartedly. And so does outgoing House Minority Leader Chad Campbell, who currently holds the seat but is precluded from running this year due to term limits.

View the trailer on YouTube.

The Joe Show is not in theatres but you can see it on May 14, 2014 at the Randy Murray Productions studio, 631 N. 1st Ave, Phoenix.

Please join me.

Redistricting -- hopefully a wrap up to the NDC/Heslop/deficient 2011 proposal -- UPDATED 6:55pm MST 5-2-14

On April 30th, I spoke with Doug Johnson, president of National Demographics Corporation who is also a fellow at the Rose Institute at Claremont McKenna College. Johnson was adamant that any indication NDC had failed to submit pricing information with its 2011 bid for the Arizona Independent Redistricting Commission's mapping consultant contract was the fault of the State Purchasing Office (which resides in the Arizona Department of Administration).

Johnson repeated, more than once, that any person who reported to me anything to the contrary was lying and that I should never listen to that person ever again. After having verified that my understanding -- contrary to Johnson's -- was correct, I called Johnson again. I had to give him the opportunity to reconsider his claim. He only repeated it, with equal emphasis.

Today, I have located the documentation, which has been posted online at the AIRC website continuously since July 2011, that casts unquestionable doubt on Johnson's claim that the problem with NDC's blank "attachment 3" (the schedule of deliverables and pricing) was because of technical problem for which any employee or agent of the State of Arizona was responsible.

This documentation, subject to full disclosure subsequent to the award of the contract to a different bidder, is found in two evaluation documents.

• A PDF file titled "Commissioners individual ratings" contains evaluations of some factors by SPO personnel as well as Commissioner Scott Freeman's individual evaluations of each of the interviewed mapping consultant candidate firms. 

Notable in this document is that NDC was docked (by SPO) half of the available points based on its proposal's conformance to RFP terms and conditions. That rating included this notation, "Failed to provide documents referenced in proposal response," and "Provided no information in original pricing proposal document." (Page 5 of the PDF document)

• A second PDF file, titled "Commissioners individual ratings 2" contains the individual evaluations made by Commissioners Rick Stertz, Jose Herrera, Colleen Mathis and Linda McNulty.

Notable in this document is (on page 13 of the PDF file) AIRC chair Mathis' statement,

Their pricing sheet was submitted late, one week after all other firms submitted theirs. This was not due to a technical glitch on SPOs end but was on NDC's end. There is no way to guarantee that they were not aware of pricing information of other firms when they submitted theirs. It is not fair to other firms.

Now I feel bad for Mr. Johnson because he was insistent, emphatic and repeated his claim to me on two separate phone conversations last night that whoever told me NDC had failed to submit pricing data originally was lying. Well, it's actually the legal record of the proceedings that told me.

If Mathis' comments on the weakness of the NDC bid, and the official notation of the State Purchasing Office were disputable, it seems to me that either Commissioners Freeman or Stertz, or the Koch brothers' (and other Dark Money) funded UNfair Trust operatives (Cantelme and Liberdi) would have said something about that specific point either immediately after the documents were posted or during litigation. Granted, the litigation over the AIRC allegedly violating its lawfully mandated procedures is still pending, but may have been abandoned.

Nevertheless, the publicly available documentation of the mapping consultant hiring process shows pretty clearly that NDC's proposal was grossly deficient by way of omission of important documents. Additionally, individual evaluations of NDC's proposal made by the commissioners reflect the sloppiness of the language in the proposal with the Republican commissioners downplaying this factor and while the chair and the two Democratic commissioners considered that factor to be material in nature and adjusted their scores accordingly.

BOTTOM LINE

The bottom line of this situation appears (strongly) to be that 1) "retired partner" David Alan Heslop, now convicted of conspiracy to commit bribery for incidents and events unrelated to Arizona Redistricting, was one of two owners of NDC at the time the first AIRC granted the mapping consultant contract to NDC in 2001. Doug Johnson bought out the ownership interest of both Heslop and Florence P. Adams at an unspecified point in 2006, while NDC was still under contract to the AIRC. The allegations (and several charges, but Heslop pleaded guilty to only one charge of conspiracy to commit bribery) date back at least to September 2006 according to the 20-page factual basis document signed by an assistant US Attorney and by Heslop.

The 2011 proposal submitted by NDC in hopes of winning the contract to draw this decade's district maps was deficient for several reasons. None of those reasons is related to Johnson's relationship with Heslop.

-----

This post is meant to also supply an update to two previous Arizona Eagletarian posts, here and here.

-----

UPDATE 5-2-14

Pursuant to his comment posted to this story, NDC president Doug Johnson forwarded to me a document he says refutes reports that his pricing information (attachment 3) had been received by the State Purchasing Office on any date later than the rest of his proposal. You may view that document.

As far as I can tell, that document presents an acknowledgment that SPO received an attachment 3, but does not specify the contents (lack thereof) or a date/time stamp for when that document was received by SPO.

At this point, I'd love to be able to give Johnson the benefit of the doubt, but as far as I can tell, the available facts do not support his claims.

If I learn specifically how that document might verify or support his claim that my reporting has been incorrect, I will update accordingly.