AIRC Update: Motion to dismiss GOP complaint in federal court


Posted by AzBlueMeanie:

Howard Fischer reports on Wednesday's hearing before a three judge panel of federal judges. GOP attorney to judicial panel: Redistricting maps are illegal:

David Cantelme told the three-judge panel the
Independent Redistricting Commission broke the law when it created
districts with varying populations despite state and federal laws
generally requiring all voting districts to have approximately the same
number of people. The commission's maps have a difference of more than 8
percent between the most and least-populated districts.

This is a losing argument. Apparently neither Howard Fischer nor David Cantelme are aware that the U.S. Supreme Court ruled on September 25, 2012 in a West Virginia Redistricting case — by an apparent unanimous vote — that lower-court judges not insist
on close-to-zero differences in the population of each of a state’s
districts for choosing members of the U.S. House of Representatives. Lyle Denniston wrote at, Opinion recap: Hedging on “one person, one vote”:

“Zero variance” in population is not the new constitutional norm for
redistricting, the Court made clear
.  Just because computers can
produce almost exactly equal-sized districts, the Constitution does not
require it, the decision said.

After sitting on the case from West Virginia all summer long, the
Court produced an eight-page, unsigned ruling that largely deferred to
the wishes of that state’s legislature on how to craft the three
districts for choosing its House delegation.  The opinion can be found here. The new ruling came in the case of Tennant v. Jefferson County Commission (docket 11-1184).

* * *

Tuesday’s ruling gave state legislators constitutional permission to
have some variation in size between congressional districts
, if the
lawmakers do so to protect incumbents from having to run against each
other, to avoid splitting up counties, and to avoid moving many people
into a new district from the one where they had previously cast their
votes. In what appeared to be a novel new declaration, the Court
stressed that lower courts should not demand that a state prove
specifically how each of those goals would be satisfied by moving away
from equally populated districts. And, in another legal innovation,
the Court said that a variation that is not really very big does not
become a constitutionally suspect one just because a sophisticated
computer program could be used to avoid nearly all such variations

If the difference between a state’s largest House district and its
smallest one is small — such as the 0.79% deviation in the West Virginia
plan — that does not become unconstitutionally large just because it
could be avoided by “technological advances in redistricting and mapping

* * *

On Tuesday, the Supreme Court said once again that state legislatures
can have some inequality in the population of districts, if that is
done, within reason, to serve the other goals that redistricting can be
arranged to meet
. The Court said explicitly that the Constitution does
not guarantee absolute equality in population of districts, even if
that could be achieved by high-tech computers.  It also cautioned judges
around the country not to go too far to second-guess how legislatures
work out the various and competing interests that they confront in

What else have you got, Howard?

[AIRC Attorney Mary O'Grady] she said there is legal flexibility to that equal-population requirement
if differences are needed to meet other legitimate state goals. And one
of those, O'Grady said, is to comply with requirements of the federal
Voting Rights Act that the commission do nothing to dilute minority
voting strength.

* * *

O'Grady said that population differences exist for a variety of reasons.

One is that requirement under federal law that states
do nothing to dilute minority voting strength. That means it cannot
reduce the number of districts where minorities have a reasonable chance
of selecting state representatives and senators of their own choosing.

She also said the 2000 ballot measure imposes other
mandates on the commission, including creating as many politically
competitive districts as possible. O'Grady said that, too, required some
adjustment of district lines — and populations.

Perhaps most significant, O'Grady said even if the
commission drew the lines with partisan considerations, that is not a
violation of federal law. [See Tennant v. Jefferson County Commission above.] And that, she said, means Cantelme cannot ask a
federal court to void the maps.

Judge Roslyn Silver seemed to agree. She said the
U.S. Supreme Court has given "great deference'' to legislative bodies in
redistricting — and that partisanship is "inevitable.''

But Neil Wake, another judge on the panel, said it
appears that the commission could have met its other goals without the
adjustments in district population that Cantelme said has created the
unfair situation for Republicans.

Silver said if the court allows Cantelme to pursue
his case, the trial must be held no later than March 25. She said that
provides enough time for the commission to have the required public
hearings and draw new maps if the court finds the current ones legally

Mary O'Grady is correct. The AIRC is the quasi-legislative constitutional entity in Arizona that has jurisdiction over redistricting, and thus has the legislative flexibility to comply with state and federal laws, such as the Voting Rights Act, which would permit variances in population to accomplish these competing objectives. (The U.S. Supreme Court has approved variances of up to ten percent in previous decisions).

Wednesday's hearing technically was on O'Grady's request for the
court to throw out Cantelme's lawsuit [a Motion to Dismiss].

Steve Muratore from the Arizona Eagletarian, who was present in the courtroom, adds Redistricting — Fed court hearing on Legislative District map:

Judge Silver announced a potential trial date of March 25, 2013 and gave
a deadline of November 7 (2012) for counsel to submit proposed trial
management plans. Then she said — that is, unless we decide to grant
the motion to dismiss.