Court to determine legality of Arizona's legislative map

By Jeremy Duda
The Daily Record Newswire
 
PHOENIX — The fate of Arizona’s legislative map will hinge on whether the U.S. Supreme Court believes the Arizona Independent Redistricting Commission was justified in underpopulating most Democratic districts or overpopulating Republican ones.

The high court this week heard arguments in Harris v. Arizona Independent Redistricting Commission, which alleges that the population discrepancies between the state’s legislative districts were an intentional ploy to help Democrats that violates the Equal Protection Clause of the 14th Amendment.

If the high court sides with the plaintiffs, a group of conservative activists, it will trigger a mid-decade redrawing of Arizona’s legislative districts that would likely hinder Democrats’ ability to win in at least one, and possibly several districts.

Here is a look at the nuts and bolts of the case.

What’s the big deal?

The question at the center of the case is whether the U.S. Constitution permits the commission to create legislative districts with unequal populations in order to ensure that minority voters can elect the candidates of their choice under the terms of the Voting Rights Act.

At the time of the redistricting process, Arizona was subject to a provision in the Voting Rights Act that required Justice Department approval of its redistricting maps, and the IRC position is that it sought to achieve preclearance by adding more minority districts.

Why is this considered unfair?

Eleven of the 12 Democratic-leaning districts had lower-than-average populations, while 16 of 17 Republican districts were overpopulated.

Why might this be unconstitutional?

Mark Hearne, an attorney for the plaintiffs, argues that the 14th Amendment and the “one person, one vote” principle enshrined by the Supreme Court precludes the commission from creating unequal districts, even for the purpose of complying with the Voting Rights Act.

Furthermore, Hearne stated that the desire for “preclearance” is not a valid reason for packing Republican voters into certain legislative districts because a subsequent Supreme Court ruling eliminated that requirement.

Hearne asserted that the commission “overshot the mark” in its attempt to create additional minority districts.

A consultant to the IRC advised the commission that it would be permissible to create unequal districts in order to comply with the Voting Rights Act, which Hearne referred to as “defective legal advice.”

“This notion of “having to” dilute some citizens’ votes and inflate other citizens’ votes is flatly contrary to the Constitution’s guarantee of equal protection.

A statute cannot command a constitutional violation,” Hearne wrote.

But Hearne alleged that the Voting Rights Act was not the true reason for the population disparity. The plaintiffs have long argued that the commission overpopulated some districts with GOP voters in order to tilt the scales toward the Democrats.

“Our point is simply this: The commission drew unequal districts to create partisan advantage for the Democrat Party,” Hearne argued. “This case concerns the right of all Arizona citizens to have their votes equally weighed as the United States and Arizona Constitutions guarantee.”

Why shouldn’t the court rule for the plaintiffs?

IRC attorney Paul Smith argued that the Supreme Court has long held that minor population discrepancies between legislative districts are permissible.

And Smith wrote that the commission’s goal of complying with the Voting Rights Act was a justifiable reason for the unequal district populations.

“This court has repeatedly held that maximum population deviations of less than 10% are de minimis and do not require justification by the state,” Smith wrote.

“Appellants’ argument would undermine decades of consistent precedent and create an incoherent rule subjecting nearly every state’s legislative apportionment plan to increased constitutional scrutiny and fact-intensive oversight by federal courts.”

Smith wrote that in a previous Supreme Court ruling that struck down maps based on population disparity, the court ruled that the Georgia Legislature had abused the “ten-percent rule” by creating unequal districts solely for the purpose of giving Democrats a partisan advantage.

“Even if the de minimis population deviations in Arizona’s state legislative maps require explanation, the court below correctly found that the deviations were justified by the commission’s desire to achieve preclearance and adhere to Arizona’s constitutionally prescribed redistricting criteria,” Smith said.

And regardless of later rulings by the Supreme Court, Smith noted that at the time it was drawing the maps, Arizona was subject to the Voting Rights Act’s preclearance requirement and said the plaintiffs in the case “misunderstand how retroactivity works.”

How did this get to the high court?

The case went before a three-judge panel in U.S. District Court in 2013.

In a 2-1 decision, the court upheld the maps, ruling that the population disparity between the districts was motivated primarily by a desire to comply with the Voting Rights Act, though they conceded that partisanship played at least some role in the commission’s decisions.

Who else is involved?

In addition to the attorneys for the commission and the plaintiffs, the high court will hear arguments from U.S. Solicitor General Donald Verrilli and Arizona Attorney General Mark Brnovich.

Brnovich is representing Secretary of State Michele Reagan, who supports the plaintiffs’ allegation that the commission unconstitutionally packed Republicans into some districts to give Democrats a partisan advantage, while Verrilli will argue on behalf of the U.S. Department of Justice, which is siding with the commission.

What has caused so much tension in the case?

Since early in the process, the commission was plagued by accusations of partisan bias. Colleen Mathis, the independent chair of the commission, routinely voted with Democratic Commissioners Jose Herrera and Linda McNulty.

The two Republican commissioners, Scott Freeman and Richard Stertz, were on the losing side of 3-2 votes on almost every important decision the commission made, from the hiring of attorneys and consultants to the approval of maps.

Then-Gov. Jan Brewer and the Legislature, which at the time had a Republican supermajority in both chambers, impeached Mathis over allegations of malfeasance.
The Arizona Supreme Court later reinstated Mathis.

Didn’t the Supreme Court already rule on an Arizona redistricting case?

The Dec. 8 hearing was the second time in 2015 that the Supreme Court has heard arguments in a case involving Arizona’s redistricting commission.

In March, the high court heard arguments in a lawsuit filed by the Legislature, which alleged that the U.S. Constitution reserves congressional redistricting powers exclusively for lawmakers.

The court upheld the commission’s authority to draw congressional boundaries in June.