Monday, November 30, 2015

Redistricting -- Just when you thought it was all settled... part one, Harris

Next Tuesday, oral arguments in Harris v Arizona Independent Redistricting Commission will be heard by the Supreme Court of the United States.

First filed in federal district court in Phoenix in 2012, a bench trial before a three-judge panel was held in March 2013. The trial court took a year to issue its ruling, which was appealed to the Supreme Court in a timely manner.

Now, after stipulated delay (both sides agreed) pending the outcome of Arizona Legislature v Arizona Independent Redistricting Commission, oral arguments are a week away.

Several amicus briefs were filed earlier this month in support of the AIRC position in the case.

Today's news (or rather last week's) is that SCOTUS granted motions for Arizona Attorney General Mark Brnovich to take 10 of the allotted 30 minutes to argue against the AIRC on behalf of the extremely and improperly partisan Secretary of State Michele Reagan; and for the Department of Justice to take 10 of the 30 minutes allotted to the AIRC to argue in support of the current legislative district map.

Further, reply briefs were filed by Harris' counsel and Reagan's counsel. I haven't taken the time to study those briefs, but Reagan's may provide a hint as to what unique perspective she claims to have and whether it might be pursuasive.

Lastly, when reviewing documents from today's AG press conference about Bitter Smith, I noticed that one of Brnovich's assistant AGs is Beau Roysden. Roysden previously worked as an associate with Joe Kanefield at Ballard Spahr, including on AIRC litigation. Currently, I'm not familiar with whether any ethics rules would prevent Roysden from working on the Harris case against the AIRC. But it is intriguing that he does now work for the AG.

When I reviewed amicus briefs supporting the AIRC position, they looked persuasive to me. But I have an obvious bias in favor of the commission's position. While I will not be traveling to DC to sit in on the OA, I expect to review and report on the transcript when it's posted, presumably Tuesday afternoon.

Susan Bitter Smith won't go down without a fight!

At ten o'clock this morning, Arizona Attorney General Mark Brnovich announced that he had filed a Special Action in the state Supreme Court seeking removal of Susan Bitter Smith*, currently chair of the Arizona Corporation Commission, from office as a result of longstanding conflicts of interest.

Chandler attorney and longtime citizen activist Tom Ryan, in early September, on his own behalf, submitted a complaint to Brnovich's office with documentation of an extensive investigation Ryan conducted to demonstrate the willfully brazen disregard Bitter Smith has shown for Arizona law.

Arizona Revised Statutes § 40-101 is clear in its applicability to this situation. Case law developed when Tony West was removed from office a decade and a half ago further emphasizes the clear cut and emphatic nature of the statute to protect Arizona citizens and ratepayers.

Rather than recount today's press conference (I wasn't there anyway), here are links to coverage by Stephen LemonsRyan Randazzo, and Yvonne Wingett Sanchez. The Yellow Sheet Report also had three pages on the Bitter Smith situation.

Notable, however, former House Republican spokesman and former ACC paid spin doctor Barrett Marson, at barely a minute after 10 am, took to Twitter to mischaracterize the situation as the solar industry attacking its best supporter.
He then proceeded to quibble about the difference between "pushing" and mentioning it to an interested reporter (Kristena Hansen). From Hansen's August 24 story,
Checks and Balances raised conflict questions about Bitter Smith to KJZZ, which then conducted independent research and reporting that included a review of various public documents, tax records and interviews with Bitter Smith, former commissioners, a former attorney general and various ethics and Constitutional law experts and attorneys.
Responding to Marson, current House Spokeswoman Stephanie Grisham tweeted,
Bitter Smith's characterization in the closed to the press speech she gave earlier this month at the AZ Energy at the Crossroads conference, said she was being harassed. Grisham (speaking for Speaker David Gowan) calls it #BullyJournalism.

Accountability is a bitch, isn't it ladies (Bitter Smith and Grisham)?

Anyway, in response to today's developments Checks and Balances Project, Scott Peterson, wondering about what C&BP really wants Brnovich to do, said this,

"Brnovich the defender of ethics in government showed up today — and that’s a good thing for Arizonans who're tired of commission corruption. But there hasn’t been sighting of ethics-focused Mark Brnovich for months when it comes to Bob Stump’s conduct and other cases of potential corruption on the commission.

"The AG himself said it’s 'important that we have regulators who are beyond reproach and who can be fair and impartial.'

"When you become Attorney General with substantial help by APS, it’s one thing to go after a commissioner who has opposed APS. The real test of your ethical compass will be to apply the standards and energy to commissioners APS helped install on the commission."

On another note, well maybe it's the same note, Lee Poole, the whistleblower in the Tony West case at the turn of the century, had this to say reflecting on Bitter Smith's dilemma,
I guess she intends to fight it at the Sup. Ct., which is not surprising (I say that "legally", not "personally")--but I suspect her argument will be a tough sell. The fundamental questions were already asked & answered in Jennings v. Woods/West, and by entertaining a re-visitation of those issues, or by inviting SBS' attorneys to essentially parse the otherwise crystal clear language and intent of that decision, the Ct. would essentially be inviting future messes for itself.
Like, what degree of "employment" triggers the law's application; what degree of "regulation" triggers it, etc. Why go down that road, when the "right" road was already pretty frickin' crystal clear?
I'm kinda wonderin' what the "back story" might be on her original decision to wear two hats at once; did she invite commentary from her attys in advance (and did they tell her what she wanted to hear, instead of what she needed to hear...), or did she plow ahead on her own w/out any advice in advance? If she loses (which seems likely), does she file a claim w/her attys. for malpractice?
The bottom line, as I see it, is that in today's Post Truth media environment, hacks like Marson and Grisham validate the gross corruption that has Arizona labeled as the most corrupt state in the country.

Brnovich today took one step in the right direction. He's got a long way to go to prove himself, however.

*  Two pdf files with upwards of 850 pages of exhibits attached to Brnovich's petition today are also available for review.

Thursday, November 26, 2015

Happy Thanksgiving -- and More about Trash Burner Bob Stump's Text Messages

In the wake of a court ruling in the lawsuit brought by Checks and Balances Project to compel disclosure of Corporation Commissioner Bob Stump's text messages, Stump reportedly still insists he did nothing wrong. At issue is the question of whether Stump improperly communicated with independent expenditure funders as well as officials of Arizona Public Service during the 2014 election for two seats on the Corporation Commission.

On Wednesday, Scott Peterson (C&BP exec. director) told the Arizona Eagletarian,
"Bob Stump has forgotten what the metadata disclosed. He's essentially betting his career that the text messages will disprove what metadata has shown."
On Wednesday, Capitol Media Services (Howie Fischer) reported that Maricopa County Superior Court Judge Randall Warner ordered review of Stump's text messages -- which Checks and Balances Project has been demanding be disclosed since last winter -- by former Judge David Cole.
Judge Randall Warner named former judge David Cole to review what was recovered from an examination of the utility regulator’s state-issued phone by the Attorney General’s Office. Cole is now free to review what the prosecutor’s office was able to reconstruct of long-deleted messages.
That list of messages includes communications with Republican candidates, the head of an organization that spent more than $300,000 from unnamed sources to get them nominated, and the executive of a utility that may have helped fund that effort.
But it has yet to be determined how many of the messages Cole determines are public will see the light of day.
“If corporation commissioner Stump has any claim that they’re privileged or that they’re somehow private, or something like that, they would assert that,” said Dan Barr. He is the attorney for the Checks and Balances Project which filed suit for the texts earlier this year.
At that point, it would be up to Warner to decide who is correct.
Because the phone and the messages are currently in the custody of the Arizona Attorney General's office, the report says the timing of said review is still up in the air. The bottom line, for the moment, is that the court has thus far granted what C&BP proposed months ago, as far as an independent review by a retired judge.

An intriguing aside, on Fischer's story, posted at the Arizona Capitol Times website, the following comment is attached,
"And Stump insisted there was no way to retrieve the texts as he had discarded the state-issued phone he was using at the time, a move he has since admitted was a mistake.”
Get it straight, Howard Fischer. It was not just a “mistake” as Stump contends, nor was it a simple “discard” as you contend. Stump destroyed State property. And so far there has been absolutely NO consequences to Stump for his action.
Who else among us gets to destroy State property with impunity? I have repeatedly asked our sleeping AG for a list of State property that I and others may destroy with impunity. So far, I have not gotten a response.
The name on the comment is Warren Woodward, who the Arizona Republic calls a frequent critic of the commission.

By the way, even though Checks and Balances Project has functioned as a de facto investigative journalism organization in the Stump situation, Stump and ACC chair Susan Bitter Smith both have taken to claiming that the Project is "a dark money organization." In stark contrast, Peterson insists that C&BP does not engage in any form of electioneering and in every blog post to its website states,
Checks and Balances Project is "a national watchdog blog that seeks to hold government officials, lobbyists, and corporate management accountable to the public. Funding for C&BP comes from pro-clean energy philanthropies and donors."
Is it any wonder that crony capitalists in the most corrupt state government in the country claim that C&BP harasses them? Holding government officials accountable is such a wonderful thing, isn't it?

Tuesday, November 10, 2015

Arizona Energy at the Crossroads -- Part II

One of the most interesting panel discussions of the day, on Saturday, featured Debbie Dooley, founder of Conservatives for Energy Freedom and state Rep. Rusty Bowers, a Mesa Republican who serves on the House Energy, Environment and Natural Resources committee. From the Yale Environment 360 newsletter,
Debbie Dooley’s conservative credentials are impeccable. She was one of the founding members of the Tea Party movement and continues to sit on the board of the Tea Party Patriots. She also serves as chairperson of the Atlanta Tea Party. 
But on the issue of solar power, Dooley breaks the mold. To the consternation of some of her fellow conservatives, she has teamed up with the Sierra Club and other environmental organizations, first in Georgia and now in Florida, to form the Green Tea Coalition. It’s an unlikely mix of conservative, environmental and other groups whose focus includes campaigning against the maintenance fees that utility companies charge solar customers. In Florida, the group is working to get an initiative on the ballot that would allow individuals and businesses to sell power directly to consumers.
Dooley's straight talking perspective was refreshing and enlightening. She is not an academic. Many of the other speakers at the conference were. Nevertheless, she made clear points that were readily communicated and absorbed. Okay, maybe I'm just not smart enough to appreciate the academics.

One of her first points, perhaps the most salient of the day by any speaker, is that Distributed Generation (DG) is a matter of national security concern.

Bowers, on the other hand, is a pompous creep. His claim to credibility at the conference, other than being vice-chair of the House committee, is that his ranch is six miles from the nearest point that he could connect to the electrical grid. Therefore, the ranch, at which he practices his art (as a sculptor), is completely energy independent and hence, off-the-grid. That's where his common ground with anyone at the conference seemed to begin and end.

To respond to Dooley on the national security concern, he asked who in the audience were national security experts. Not surprisingly, nobody raised their hands. He then proceeded to, dismissively and condescendingly, simply not even acknowledge that DG could make Arizonans far less vulnerable to terrorist attack.

From an undated paper (apparently written not long after a widespread August 2003 blackout) posted to the Clean Energy Group website,
Disruption of electricity has been a weapon of war in Iraq. Throughout the past summer, following the cessation of active combat operations by the United States, looters or saboteurs in Baghdad destroyed long distance power lines, stole valuable parts of the electrical system, and destroyed dozens of 100-foot electric towers.
Residents suffered in heat up to 120 degrees, huge backups of sewage resulted because of the failure of electric pumps, and damage to local electrical lines made it impossible for farmers to irrigate their fields, with tensions at a fever pitch.1 During the recent blackouts in the U.S. and Canada, many Iraqis gloated, making statements like: “Let them feel our suffering” after their months of life without electricity.2
Imagine that happening in desert cities and rural areas in Arizona. Go ahead, imagine it.

Dooley also cited the problems of crony capitalism as rationale for her teaming up with Sierra Club to start the Green Tea Coalition. She's right on the mark on that issue.

But Bowers apparently doesn't care whether it happens to you or me. He's in the legislature to represent lobbyists including utility lobbyists, not for enhancing security of Arizona citizens. Bowers also dismissively thumbed his nose (figuratively, not literally) at Dooley's suggestion to "follow the money." Which is ironic because I vividly remember Bowers, during his previous legislative service, arguing the merits of lobbyist gifts (dining and entertainment in particular) and saying that rather than ban gifts outright, just have enhanced reporting of those items lobbyists spend on lawmakers to influence them. In the 1990s, Rusty was all for allowing people to follow the money... because that's better than keeping our representatives from enjoying the bounty of their labors in selling influence.

Of course, we now know, from the research of Robert Cialdini, that the web of control that attaches to candidates who whore themselves out to lobbyists like Bowers does, is very real and absolutely tangible. It seems the acclaimed sculptor didn't realize there was scientific documentation of how those gifts work.

The bottom line with Bowers is that he was there to make a stand politically, for his puppetmasters, even though it seemed conference organizers had hoped for an intellectual discussion of actual issues related to the future of energy infrastructure and use in Arizona.

The bottom line with Dooley is that she's embarked on the strategy outlined in Unstoppable: the Emerging Left-Right Alliance to Dismantle the Corporate State. As long as she stays focused, eventually she (and we) will succeed.


In its November 9 issue, Yellow Sheet Reporters validated what I posted on Saturday evening about Susan Bitter Smith demanding that NO MEDIA be allowed to listen to her keynote speech that morning.
One source who attended the conference said Bitter Smith cited Corp Comm rules in kicking the media out. Meanwhile, citing a source in attendance, Muratore wrote that Bitter Smith mentioned that, as a commissioner, she acts as judge and is therefore not allowed to speak in such forums with reporters present. She also warned the attendees not to talk to the media about her remarks, Muratore’s source said.
Bitter Smith did not answer a call from our reporter, but Corp Comm spokeswoman Angie Holdsworth said what occurred is being “twisted up” by the anonymous sources. She said Bitter Smith did not cite any commission rule and it was not the commissioner, but the forum’s organizers, who kept the media out. However, she acknowledged that Bitter Smith wanted to keep reporters from hearing what she had to say on the advice of her counsel. “There was no citing of commission [rules]… She did not kick anybody out because of any commission rule,” Holdsworth said. She said Bitter Smith had spoken with Holohan before her speech and expressed her desire, based on legal advice, not to have reporters present. “She said she wanted to have a candid conversation and felt it was probably better not to have the media there, but it was Mark [Holohan]… who was the one who did not let this Steve [Muratore] in and kept the media out from there,” Holdsworth said.
Bitter Smith alluded to her counsel’s advice in the first part of her speech, a source confirmed this afternoon. “She got up and said, ‘I’ve been advised by my attorneys that I can’t give this talk with media in the room’ or something like that,” the source said
It seems to me that former journalist and now FLACK Angie Holdsworth is the one who was doing the twisting. Might she be uncomfortable with her first gig as a paid public relations minion?

According to the YS, Bitter Smith DID tell the AriSeia president that she didn't want any media people in the room, but then she (or her mouthpiece) denied that she was responsible for it. In another absurd development, YS reported,
Later this afternoon, Holdsworth also said Bitter Smith preferred no reporters be present because she didn’t want the context of her speech to be “overshadowed or sandblasted.” Also, she probably wouldn’t have a problem with Muratore listening to her speech. “But that was the organizers’ call who decided who was media and who wasn’t, basically,” Holdsworth said.
Translated into English, Bitter Smith reconsidered and now says it would have been fine for me to hear her speech. I find that statement superbly disingenuous.

Obviously, I stirred up a hornet's nest with the Saturday evening (blog) post. Bitter Smith now is trying to suggest she doesn't know who I am? Really?

I appreciate that Yellow Sheet staff did some digging and asked some good questions. However, they still use language that gives the plutocrats the benefit of the doubt, but this was good for keeping the issue on the front burner. The fight for integrity in Arizona government continues, especially related to the problem of corruption in utility oversight.

Monday, November 9, 2015

LD26 Beer Summit and Bake Off this Saturday!

One of the most fun parties LD26 Democrats throw all year is the annual Beer Summit. This year, it's Saturday November 14 at 2pm.

Special Guest

Join LD26 for our annual Beer Summit. This year we'll be pairing the summit with a candidate bake-off, so come out to sample beer and vote for the candidate with the best baked goods.

We will also have a large variety of beer to sample and enjoy!

General admission is $26, Young Democrats can attend for a reduced rate of $10, and kids will receive free entry. We can't wait to see you all.

Admission includes 1 free drink (beer, soda, water), 1 free beer sampling (a variety of local beers), a brat (veggie too) and eating & voting for the best dessert!

Plus a raffle to win a personal meal prepared by none other than Tempe City Councilmember Corey Woods.

*Additional drinks and food will be available upon purchase.

November 14, 2015 at 2pm - 5pm

Barnes House
1104 S Ash
Tempe, AZ 85281
Google map and directions

For more information, CONTACT:
Samantha Pstross ·

NOTE: Democratic Presidential Debate scheduled for Saturday will start at 7 pm, Mountain Standard Time, so the Beer Summit does not conflict. 

Saturday, November 7, 2015

AZ Energy at the Crossroads -- the Good, the Bad and the Ugly!

What did the chairwoman of the Arizona Corporation Commission have to hide this morning when she addressed the 30 or so people in attendance at a conference put on by the Arizona Solar Energy Industries Association?

Of course, I wondered about it while I sat outside the meeting hall and texted key individuals to let them know I was removed from the room before I could even start to take notes (and I didn't even mouth my favorite word while making eye contact with her). Corporation Commission chairwoman Susan Bitter Smith apparently demanded that NO MEDIA be allowed to hear what she had to say.

Outrageous, you say? Well, hell yeah!

Even though panel moderators later in the day would include Brahm Resnik from 12News, Jim Small from the Arizona Capitol Times and Herman Trabish, who writes for Utility Dive, (each of whom arrived after Bitter Smith was done) nobody else who writes for publication to my knowledge was present during the keynote.

One attendee, a person who does NOT work for or is in any way (other than attending the conference, having paid the fee to attend) connected to AriSeia or APS reported the following to me about Bitter Smith's remarks.
I did not know that you were ushered out Steve. Sorry to hear that. That is highly inappropriate in my opinion as it is repression of a free and independent press.
To encapsulate, Mrs. Bitter Smith complained at length about Checks & Balances being an "out of state, dark money group" who she felt was misrepresenting AriSEIA and other pro-solar folks at today's event.
She spoke of someone online who said she was imminently under the threat of arrest. She mocked this person while speaking of it.
She also spoke angrily about Checks & Balances accusing a fellow commissioner of being incapable of writing his own opinions, an obvious reference to Doug Little's recent release of documents.
She tried to encourage all present to turn against Checks & Balances and reject what she represented as harassment. She also said Checks & Balances was harassing regulators across the country.
No mention of ALEC, 60 Plus, Americans for Prosperity & all the others who have worked on behalf of pro utility commissioners including Bitter Smith. During the Q&A these groups did come up.
My overall impression was her talk was the manifestation of an embattled chairwoman who went on the offensive at the wrong venue.
According to that attendee, Bitter Smith claimed in her talk that because she is a judge (or functions in the capacity of a judge, in her role as a Corporation Commissioner), she's not allowed to speak in situations like that with journalists present. Further, she warned her audience against speaking to the press about the content of her remarks this morning.

Given her power to retaliate against specific interests or companies represented at the conference, it comes as no surprise that nobody really wanted to talk with me much today at the event.

That claim on her part, of course, is complete and total bullshit. It also reeks of intimidation and at least borders on improper exercise of authority by an elected official. That she demanded exclusion of anyone who would possibly publish her remarks, is (in my humble opinion) very ugly.

Later in the day, I asked one of the conference organizers if Bitter Smith's speech was recorded. He told me that it was not.

There certainly seems to be a HUGE amount of irony involved when an elected Corporation Commissioner complains about checks and balances. Does she even realize why the concept was written into the Constitutions of the United States and of Arizona?

Doesn't the mere fact that she complains about it tell you something is amiss?

Well maybe in another post tomorrow I'll hit the positive highlights of conference. There were some.

Wednesday, November 4, 2015

Arizona Energy at the Crossroads Conference

Saturday, November 7, 2015 from 9:00 AM to 5:00 PM (MST)

You're Invited

For the first time in Arizona’s history, proposals for changes to utility rate plans will have a great impact on the future of power generation with ramifications on cost, water use, pollution, jobs and individual choice. Join national and local experts in an open and honest discussion of the issues that will drive Arizona's energy future. Topics to be discussed include:
  • Electricity Supply in Arizona: Today and Tomorrow
  • Impact of Customer Generated Energy
  • Why Rates Matter: Case Studies of Effect of Energy Rates on Users
  • Solar Energy: Free Market Choice or Bad for Other Ratepayers?
  • Rate Design Trends and Emerging Technology Response
Debbie Dooley, one of the original founders of the Tea Party Patriots, will be discussing solar energy and whether it is a free market choice or bad for ratepayers with House Energy Committee Chairman Rep. Frank Pratt. The panel will be moderated by 12 News’ Brahm Resnik, so it should be a very lively discussion. You won’t want to miss it! See the agenda below for information on all of the panel topics, panelists and moderators.
Conference Agenda
8:00AM            Registration Opens
9:00 – 9:10      Pledge of Allegiance, Introductions & Opening Remarks – Mark Holohan, AriSEIA
9:10 – 09:40    Opening Keynote – Arizona Corporation Commission Chairman Susan Bitter Smith
9:45 - 10:45     Electricity Supply In Arizona: Today & Tomorrow
  • Barbara Lockwood, APS
  • SRP (speaker TBD)
  • Moderator: Mark Holohan, AriSEIA
10:50 – 11:35  Impact of Customer Generated Energy
  • Dr. David Wells, ASU “Who’s Installing Solar: An Analysis of Arizona Goes Solar”
  • Thomas J Williams, Scottsdale Community College
  • Dr. Stan Reynolds, The University of Arizona, “Renewables & the Arizona Energy Market”
  • Moderator: Jim Small, Arizona Capitol Times
11:35 – 12:30  Lunch – Keynote Karl Rabago, “Rethinking the Investor Owned Utility Model”
12:30 – 1:15    Why Rates Matter: Case Studies of Effect of Energy Rates on Users
  • CR Herro, VP, Environmental Affairs, Meritage Homes
  • Dr. Paul Tighe, Superintendent, Mingus Union High School District
  • Ken Hicks, CFO, Peoria Unified School District/ASBO
  • Moderator: Sue Pierce: Pierce Energy Institute
1:20 – 2:15      Rate Design Trends
  • Leland Snook, APS
  • Karl Rabago, Executive Director, Pace Energy and Climate Center
  • Moderator: Herman Trabish, Utility Dive
Afternoon Break – Take as needed, please try not to be disruptive
2:20 – 3:10      Solar Energy: Free Market Choice or Bad For Other Ratepayers?
  • Debbie Dooley, Co-founder of the Tea Party & Green Tea Coalition
  • Hon. Frank Pratt (R-8), AZ House of Representatives, Energy Committee Chair
  • Moderator: Brahm Resnik, 12 News
3:15 – 4:00      Emerging Technology Response Self-Use vs. Net Metering (Battery Storage)
  • Lon Huber: Strategen
  • Farid Dibachi, CEO, JLM Energy
  • Moderator: Herman Trabish, Utility Dive

Open to the public

Admission $35 (includes morning coffee, lunch and afternoon snack)
University of Arizona and MCCCD students with ID - Free ($15 w/lunch)
Only 200 seats available - Preregistration required

Additional information,


Rio Salado Conference Center
2323 West 14th Street
Tempe, AZ 85281


My skeptical ear, along with a notebook, pen and smartphone for live Tweets, will attend. I'll also let you know what I think afterward. But if you can make it, please do.

The New LD26 State Senator is Andrew Sherwood!

Congratulations to LD26, and thanks are due to the Maricopa County Board of Supervisors especially Denny Barney for the selection of Rep. Andrew Sherwood to fill the vacancy left when Ed Ableser took a job in Nevada.
The Maricopa County Board of Supervisors voted Wednesday to appoint Sherwood, 35, a marketing director, to fill the seat until January 2017. Ableser resigned Sept. 30, after nearly a decade in the Legislature, to take a job with the Nevada Department of Education.
Ableser had faced criticism in recent years for his number of absences during legislative sessions.
"I work hard at my job. I don't think I've ever missed a vote or a day of work," Sherwood said, with his wife, Amber Gell, by his side. "I"m going to take that work ethic with me."
He said next session he will work with fellow senators to boost school funding, as well as on increasing jobs. Known for his friendly fighting with Republican Rep. Eddie Farnsworth, Sherwood said he looks forward to similar debates with outspoken Republican senators John Kavanagh and Don Shooter.

This appointment, which I view as the best possible outcome as a result of the three names voted on by my fellow LD26 precinct committeepersons nearly a month ago now, sets the ball in motion for filling the new vacancy LD26 now has in the House of Representatives.

Tentatively, the LD26 PCs will meet during the week of November 16 to select three new names which will be submitted to the Maricopa County Board of Supervisors for the next selection.

Thus far, Samantha Pstross and Michael Martinez have affirmatively indicated they plan to seek the appointment. David Lucier, who was nominated but did not make the senate short list, has indicated to me that he is giving serious thought to seeking it. Jana Lynn Granillo, who also was nominated but didn't make the senate short list, has not gotten back to me yet, but it is possible she will also again seek the position.

Lastly, I will make a decision in the next day or so as to whether I will put my name in the hat this time. Over the last month, I've pondered the possibility of serving in the legislature.

There is precedent for someone with my perspective representing citizens in the lawmaking process. I can make things happen, but in a different way than somebody like Sen. Andrew Sherwood. I'm not going to pretend to be what I am not. I will elaborate more on that point when I make my decision.

Monday, November 2, 2015

Redistricting -- Motions and Amicus Briefs in Harris case

Two intriguing motions were filed on Friday to divvy up oral argument time in the upcoming hearing on December 8 before SCOTUS.

The Department of Justice requested (and the Arizona Independent Redistricting Commission agreed to a grant of) 10 minutes of the Appellees' allotted 30 minutes of the hearing.
The brief argues that appellants [Harris, et. al.] failed to carry their initial burden of producing evidence sufficient to infer that the deviations in Arizona’s plan resulted from invidious partisan discrimination. Appellants’ minimal showing of political influence in the design of the map did not negate the presumption that the population disparities were the byproduct of legitimate districting criteria. In similar circumstances, this Court has recognized that federal courts should not conduct an intrusive judicial inquiry into the justification for the disparities.
The 49-page DOJ brief further states,
1. Drawing legislative districts is a quintessential state sovereign function. Miller v. Johnson, 515 U.S. 900, 915 (1995). States therefore have considerable discretion to engage in the balancing and compromises inherent in the districting process—subject to the requirements of the Constitution and federal law. Ibid.
As relevant here, the Equal Protection Clause requires States to draw legislative districts that are substantially equal in population. Reynolds v. Sims, 377 U.S. 533, 568 (1964). The VRA imposes additional obligations...
Arizona Secretary of State Michele Reagan, on the other hand, also requested (and counsel for Harris agreed to a grant of) 10 minutes of the Appellants' allotted 30 minutes of the hearing claiming that she has a distinct approach to present to show how the legislative maps are unconstitutional. That, of course, is a claim she hopes to be able to argue... but I can't see how she can do so persuasively.

On the surface, Reagan's position as Secretary of State, which should be a neutral position overseeing elections in Arizona, is nothing more than a ploy to exacerbate the one-party dominant political structure.

Additional amicus briefs were filed.

The Navajo Nation brief summarized its argument thus,
Amici agree with Appellee Independent Redistricting Commission (“Commission”) that the population deviations in Arizona’s 2012 legislative map (“Legislative Plan”) are permissible under this Court’s jurisprudence and that Shelby County v. Holder, 133 S. Ct. 2612 (2013) is not applicable here. Moreover, Amici are concerned that if the Court grants relief that the framework for legislative redistricting will change, negatively impacting many Indian voters who only recently secured the right to vote.
Seven former DOJ officials who had responsibility for enforcing the Voting Rights Act also filed a brief. Their interests are specified,
Collectively, they served in both Democratic and Republican administrations, and oversaw the preclearance of redistricting plans following the last five Censuses.
Amici have a unique and valuable perspective on the breadth of preclearance requests made prior to this Court’s decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013) and the practical effects should this Court decide that the goal of achieving preclearance prior to Shelby County was not a “legitimate” or “rational” interest. Reynolds v. Sims, 377 U.S. 533, 579 (1964). Each amici also has intimate knowledge of the preclearance procedures and protocols for submissions under Section 5 of the Voting Rights Act prior to this Court’s decision in Shelby County.
They summarize their arguments, in part, thus,
Appellants urge this Court to hold that achieving Section 5 preclearance approval was not a legitimate or rational justification for the minor population deviations. Appellants’ arguments are misguided and the repercussions of the holding they request would be significant.
The Commission’s goal of complying with Section 5 of the Voting Rights Act’s non-retrogression standard and achieving preclearance on the first attempt was a reasonable policy goal with the practical benefits of conserving resources and protecting its sovereign control over the vital function of redistricting. It was both “legitimate” and “rational” and easily justified the minor population deviations in the redistricting plan. Reynolds v. Sims, 377 U.S. 533, 579 (1964). Indeed, avoiding retrogression, quite apart from preclearance,is a reasonable and legitimate goal. [...]
The holding Appellants urge the Court to adopt is incorrect, unnecessary, and would disrupt political stability across the country. [...]
Therefore, if this Court were to hold that compliance with Section 5 was not a rational or legitimate consideration, over a thousand redistricting plans would be open to legal challenges, creating massive instability in the political process in States throughout the nation. Put differently, if Shelby County is given the effect that Appellants seek, over a thousand redistricting plans potentially would be open to constitutional equal apportionment challenges (notwithstanding the inclusion of only minor population deviations in the plans). The potential impact of Appellants’ suggested rule cannot be understated. [...]
The Commission therefore acted reasonably by selecting a map that both satisfied Section 5 and the one-person, one-vote principle under this Court’s precedent. The Court should affirm the district court’s sound decision.
This brief seems to blow Reagan's position clean out of the water.

Then there's the brief submitted by Princeton University professor Samuel Wang. Dr. Wang,
...operates the Princeton Election Consortium blog, which since 2004 has been devoted to statistical analysis of election processes and predictions (see
and summarizes his argument thus,
This brief proposes that gerrymandering claims like the one in this case should be analyzed by looking at the statewide effect of a redistricting plan, and it offers a method for doing so that is simple, elegant, and well-suited to the task. The method is to compare each party’s vote in the median district with each party’s average (mean) vote across all districts. A large spread between these two percentages shows that one party’s voters have been packed into some districts, signaling a gerrymandered advantage for the other party. In this case there is no such spread, and in fact Republicans, who are claimed to have been victimized by gerrymandering, are shown to be the modest beneficiaries of the redistricting plan. (emphasis mine)
Wang concludes,
In sum, because the results of Arizona’s elections are inconsistent with the existence of an effective anti-Republican partisan gerrymander, this Court should reject appellants’ argument insofar as it relies on any such intention by the Commission to disadvantage Republicans.

By the way, I do not plan to attend the oral arguments hearing this time.