Posted by AzBlueMeanie:
I posted about this last year, AIRC Update: Tea-Publican deadbeats sue the AIRC with your tax dollars to overturn Prop. 106 that created the AIRC, and They're baaack! Tea-Publican lawsuits against the AIRC.
The Arizona Capitol Times (subscription required) reports today, 3-judge panel to hear 2nd redistricting challenge:
Three federal judges have been appointed to hear a constitutional challenge to the state’s redistricting commission process.
The Republican-controlled Legislature led by Senate President Andy
Biggs and House Speaker Andy Tobin filed suit in federal court in June
They argued that the U.S. Constitution gives state Legislatures the
right to regulate congressional elections and that voter-approved
Proposition 106 in 2000 took that power away. The law created the
Arizona Independent Redistricting Commission to draw district maps.
The three judges were appointed Monday by Alex Kozinsky, chief judge
of the 9th U.S. Circuit Court of Appeals. They are Senior Circuit Judge
Mary Schroeder and District Judges Paul Rosenblatt and Murray Snow.
Here is a portion of what I posted last year. AIRC Update: Tea-Publican deadbeats seek to litigate with your taxpayer dollars:
Let's hear from someone who actually
knows what he is talking about, Paul Bender, a constitutional law
professor at Arizona State University. GOP lawmakers seek to overturn redistricting commission’s authority to create maps | Arizona Capitol Times (subscription required):
Paul Bender, a constitutional law professor at Arizona State University, said he doesn’t think such a lawsuit has much merit.
The “times, places and manner” referred to in the Constitution refer to the actual machinations of elections, Bender said.
Further, Bender said “the Legislature”
referenced in that section means the state government more broadly.
Examples of this can be found in the several parts of the Arizona
Constitution where election processes are described.
“It means whatever processes the state
has established for elections,” Bender said. “It includes the state
constitution and citizen initiatives.”
* * *
Bender said that such a lawsuit, if it
were successful, would also have far-reaching effects for redistricting,
and not just in Arizona. Five other states, California, Hawaii, Idaho,
New Jersey and Washington, also have independent redistricting
The authority of those states’ commissions would also be called into question under the lawsuit proposed.
Further, Bender said, the next part of
the same section of the Constitution states that “Congress may at any
time by law make or alter such regulations…” Bender said that if the
suit were successful in arguing that the section of the Constitution
applies to redistricting, that Congress would be able to redraw states’
congressional districts, throwing the commonly held basics of
redistricting practice into chaos.
The political gossip rag The Yellow Sheet Report (subscription required) also has this from Loyola Law School Professor Justin Levitt:
The underlying premise of the lawsuit is
not unheard of among election law and redistricting experts, but experts
tend to agree that such a lawsuit would have minimal chance of
Loyola Law School Professor Justin
Levitt, a regular contributor to electionlawblog.org said the premise is
“not an unfamiliar theory,” but added that a disconnect between the
U.S. Constitution and subsequent state constitutions and federal case
law saps chances of victory. The U.S. Constitution was framed before the
notion of citizen initiatives, which are included in progressive state
constitutions like Arizona’s, and that early 20th century case law has
interpreted Article 1, Section 4’s use of the term “legislature” to mean
the “legislative process.”
A strict interpretation, he said, would
preempt any influence, input or considerations from citizens, governors
or even the courts. “They would essentially be arguing that the people
can’t set the rules for redistricting,” said Levitt, adding that 1916 U.S. Supreme Court case law in State of Ohio ex rel Davis v. Hildebrant, 241 U.S. 565 – FindLaw | Cases and Codes upheld
the use of the referendum process for redistricting in Ohio. “It fairly
squarely decides that it’s okay for the people to exercise this power,
despite the Constitutional grant of power over congressional
redistricting to the ‘Legislature,’” Levitt said.
For a more recent example, Levitt said that the 11th Circuit Court of Appeals [in Diaz-Balart v. Scott] rejected
the Florida Legislature’s objection to a ballot measure that applied to
congressional redistricting. “I think it’s a longshot if [Art. 1, Sec.
4] means the Legislature and the Legislature only,” he said.
One issue I have not seen addressed in
the reporting that I have seen is that the legislature can only use
taxpayer money for lawsuits in support of or defense of legislation of
importance to the legislature as a whole. The alleged
"constitutional issue" being pursued by the Tea-Publicans in the Arizona
legislature is motivated by political partisanship for purely partisan
political advantage in elections.
In any joint legal representation, a
conflict of interest and adverse interests may arise between litigants
requiring separate legal representation. That conflict of interest and
adverse interests between the Tea-Publican majority and the Democratic
minority clearly exists here in spades, requiring separate legal
counsel. The Tea-Publicans do not speak for the legislature as a whole — despite their tyrannical beliefs to the contrary.
The Tea-Publicans ought to be required to spend their own money on their own
lawyers for this purely partisan litigation. Yours and my tax dollars
should not be subsidizing GOP lawsuits for purely partisan litigation,
allowing these Tea-Publicans to escape having to pay one dime out of
their own pockets for this litigation. Talk about deadbeats!
In another AIRC update, Steve Muratore at the Arizona Eagletarian blog reports on Leach v. Arizona Independent Redistricting Commission. Redistricting — Leach case update:
In a minute entry ruling
dated August 13 (the day of the last oral argument hearing), Maricopa
County Superior Court Judge Mark Brain dismissed the individual
redistricting commissioners as defendants in Leach v. Arizona Independent Redistricting Commission.
Plaintiffs counsel, Lisa Hauser and Mike Liburdi, had argued vehemently (in writing) in response to the AIRC motion their fishing expedition [discovery
efforts] would be hampered if the motion was granted. Commissioner Rick
Stertz even objected to the motion, saying he really wanted to be a
defendant. Recall that Judge Brain had wondered aloud about Rick Stertz's objection.
…Stertz' counsel filed an objection to the commission's motion saying
he really did want to be a defendant. The judge wondered aloud why
Stertz couldn't just write an op-ed. Wouldn't newspapers in the state
readily publish it?
One has to wonder who is paying Lisa Hauser and Mike Liburdi (in this
particular case) to challenge the Congressional map on the pretext that
the AIRC forgot to dot some "i's" or cross some "t's." I suppose we
can't blame Stertz or his attorney, John Munger, for trying to get the
taxpayers to foot the bill for their effort to undermine the work of the
commission. But really? It must take quite a bit of chutzpah.
Here's what Judge Brain said in his ruling:
The Commission is a legislative body with the capacity to sue and be
sued in its own name. See Arizona Minority Coalition for Fair
Redistricting v. Arizona Independent Redistricting Comm., 220 Ariz. 587,
208 P.3d 676 (2009); Ariz. Const. Art. 4, part 2, § 1(20). And the
Court can grant full relief without the commissioners being named as
parties. In the circumstances of this case, the Court does not believe
the individual commissioners are necessary or proper defendants.
Accordingly, the motion is GRANTED, and the individual commissioners are
This case was scheduled to go to trial in August, but Steve Muratore reports that Plaintiff's counsel Michael Liburdi told the court that plaintiffs would not be ready for trial until after the start of calendar year 2014.
I am still awaiting the ruling from another federal three-judge panel weighing a
separate challenge to legislative district boundaries in Harris v. AIRC, which was fully briefed earlier this month.