The devil is in the details: the ‘Five to Nine’ initiative is a bad idea

The devil is in the details.

AIRCI previously posted about the ‘Five to Nine’ Initiative to expand the AIRC to be filed by former state legislator Doug Quelland (the “Q”). While I agree with the expansion of the Arizona Independent Redistricting Commission, the devil is in the details.

Now that Quelland has filed his initiative, C-05-2016 (.pdf), I disagree with the devil in the details of this initiative.

The most devilish detail is that this ballot measure appears to be designed to personally benefit Doug Quelland and other so-called “independents” who run for office, win or lose.

The devil is is in the manner in which members of the AIRC are to be appointed:

(6)  Appointments to the Arizona Independent Redistricting Commission shall be made in the order set forth below. No later than January 31, 2017, and from thence forth on years ending in one, one member shall be appointed by the Speaker of the Arizona House of Representatives, one member shall be appointed by the second largest minority party or group of registered independents in the Arizona House of Representatives, one member shall be appointed by the longest serving member of the majority party in the Arizona State Senate who received the most votes in the last general election, one member shall be appointed by the longest serving member of the second largest minority party or group of registered independents in the Arizona State Senate who received the most votes in the last general election, One member shall be appointed by the President of the Arizona State Senate, one member shall be appointed by the second largest minority party or group of registered independents in the Arizona State Senate. The final three members shall be appointed by the following:  shall any of the three above groups of registered voters not have three appointees after the above selection, then the last three appointments shall be made by the following, if one to three independent, Republican or Democratic members need to be appointed, they will be appointed by a member of the Arizona House of Representatives or a candidate for the Arizona House of Representatives that received the most votes in the last general election while running as a member of a party or group that does not have three appointees. If three are still not selected as appointees the another member will be appointed by the member or candidate for Arizona State Senate that received the most votes in the last general election. If any more members need to be appointed they shall be appointed by a member or candidate for the Arizona House of Representatives that received the second most votes in the last general election.  The last three appointers shall only be from legislative districts that in the previous general election of 2016 and hence forth in years ending in one at least three candidates for that office were on the ballot and that the appointer was on the ballot that had at least three candidates (one Republican, one Democrat, and one Independent) for the office that the appointer ran for. Also the last three appointees must come from a district in which a registered Demcorat, a registered Republican and a registered Independent were on the ballot and received votes. Write-in candidates will not be included.

What all this dense, confusing language means is that the Republicans will appoint three AIRC members, and the Democrats will appoint three AIRC members.

Because no independent candidate has ever been elected to the Arizona legislature, the three “independent” AIRC members will be appointed by losing independent candidates for office — individuals who do not represent any political party or organized constituency. (Assuming that an independent actually is elected to the Arizona legislature, that individual would make an appointment).

And do you know who the top vote getter among losing independent candidates was in 2014? That’s right, Doug Quelland. “With no elected independents in the Legislature, Quelland’s plan would have picks for the commission made by the three independent candidates for the Legislature who get the most votes. Based on the 2014 election, that would give Quelland one of the picks[.]” Quelland pushes plan to revamp Redistricting Commission. How convenient. The “Q” is running for office again in 2016.

Going forward, if this measure were to be enacted, it can easily be circumvented. The Republican and Democratic parties could have their members register as an independent for three years and to run for office in the election preceding redistricting. For purposes of illustration, the Republicans could easily spend enough money to qualify three former Republicans running as independents  as the top vote getters among independents, or even elect one to office, and capture six of the nine seats on the AIRC. Remember the Arizona GOP’s “Green” scheme in 2010 to siphon off Democratic votes? They’ve done this before. If the Democrats ever had the kind of money that Republicans have, presumably they could do the same.

The other problem I have with this initiative is its super-majority requirement for any AIRC action:

(12) Seven commissioners, including the chair or vice-chair, constitute a quorum. Seven or more affirmative votes are required for any official action . . . .

The intent of this provision is to force encourage at least one Republican or Democratic appointee to join with the three members of the other political party and three independent appointees to make any decision. This is a recipe for failure. A simple majority vote is all that should ever be required for simple administrative and legislative acts.

The consequence will be that the AIRC deadlocks and is unable to complete its business in adopting legislative and congressional redistricting maps. If the AIRC cannot complete its task, redistricting is going to wind up in front of a three judge panel of the federal court by default. Judges will impose redisticting maps, as has occurred in past redistricting. This only serves to undermine the very purpose of the AIRC.

The initiative also appears to attempt to remove the oversight provision in the present law that was abused by Governor Jan Brewer and the Arizona Senate in seeking to remove the AIRC’s Independent Chair Coleem Mathis. The Arizona Supreme Court ruled that their action was unconstitutional. But removal of the oversight provision as a check on the AIRC because of their unconstitutional actions is unwarranted:

(4)  The Independent Redistricting Commission shall not be answerable to or directed to do anything by any other state agency, office, branch or employee.

This is not the way to expand the AIRC in a manner that is consistent with the present law approved by the voters. This is really about Doug Quelland.

By the way, if the idiotic “top two primary” initiative is enacted, this measure would be eviscerated. It is highly unlikely that an “independent” would appear on the November general election ballot, so where would the “independent” appointers come from then?

Linda Valdez of the Arizona Republic should actually give these measures the “careful scrutiny” she calls for in her column before suggesting these initiatives are good ideas. They do not deliver what they promise. Valdez: Digital voters, analog system.

3 responses to “The devil is in the details: the ‘Five to Nine’ initiative is a bad idea

  1. Lawrence Mohrweis

    Five-to-Nine: A Dangerous Trojan Horse

    I agree that there should be more independent commissioners on Arizona Independent Redistricting Commission (AIRC). However, Doug Quelland’s “Five to Nine” initiative to expand the AIRC has a very serious flaw built into it. The initiative gives the political parties the ability to “game the system.” Republicans and Democrats could easily support former “partisan candidates” to run as independents in legislative races. Win or lose, those “independents” with the most votes would then be eligible to select the members to serve on the redistricting commission as the AIRC’s independent members.

    Redistricting scholars have expressed concern that Arizona’s political parties in 2020 will be involved in trying to “game the system.” Doug Quelland’s “Five to Nine” initiative is a blatant attempt to game the system. Scholars have asserted that if the independent member(s) of the Arizona Independent Redistricting Commission are really partisan members then the legitimacy of the whole exercise falls apart (see Professor Bruce Cain’s article, The Yale Law Journal, April 2012).

  2. Great job! Thanks for the analysis.
    I know it’s entrenched in statute, regulation and just plain old common practice but I think much of the problem revolves around the use of the word “independent”. A much more accurate, and therefore useful, term is “unaffiliated”. It probably would be beneficial if we could engage more people in the political process but for now we have a system which is dominated by two parties. If you want to make a difference pick one and get involved. You probably will not agree with everyone in the party you choose but you will have a much better chance of converting some to your position than if you stay unaffiliated.

  3. Thanks, Meanie, for that really good analysis of an overly complicated and confusing initiative!