AIRC Update: U.S. District Court wants briefing on Shelby County v. Holder

Posted by AzBlueMeanie:

In a one-page order signed by Chief U.S. District Judge Roslyn Silver on Monday, the three judge federal court panel considering the Arizona GOP's legal challenge to the Arizona Independent Redistricting Commission (AIRC) state legislative districts map has asked for additional briefing from the parties on the effect, if any, of the U.S. Supreme Court decsion on Shelby County v. Holder on this case.
Harris v. AIRC – Order dated 7-8-13 (.pdf).

The issue the federal court wants briefed in particular is the possibility of abstention in favor of state court adjudication.

Section 5 pre-clearance under the Voting Rights Act (VRA) provides two paths to pre-clearance: one is submission to the Department of Justice (DOJ) for review — the path the AIRC followed — and the other is proceeding in U.S. District Court, the path the State of Texas chose to follow.

The U.S. Supreme Court struck down the formula for covered jurisdictions under Section 4 of the VRA in Shelby County v. Holder, which had the intended consequence of suspending the pre-clearance provisions of Section 5 of the VRA until such time that Congress acts to adopt a new covered jurisdiction formula under Section 4.

Unlike the state of Texas which chose to proceed in the U.S. District Court and appeals to the U.S. District Court for the District of Columbia, Federal District Court Denies Preclearance of Texas Redistricting Plans, and thus remained under federal court supervision throughout the redistricting process (the case is still in court), Arizona's redistricting maps were pre-approved by the DOJ — for the first time since Arizona became a covered jurisdiction under Section 4, I would add — and the 2012 election proceeded under approved maps. The Arizona GOP's legal challenge is to the approved maps, not part of the initial pre-clearance process as in the state of Texas. This distiction is important.

Arizona's redistricting was a completed act. At the time of pre-clearance approval by the DOJ and the 2012 election, the VRA was constitutional and the law of the land for almost 50 years. There was no constitutional infirmity. I agree with the AIRC's attorney Joe Kanefield that Shelby County v. Holder is "legally irrelevant to this case."

What the Arizona GOP is arguing is that it wants to take a trip in Mr. Peabody's WAYBAC time machine to go back in time to when the AIRC submitted its maps to the DOJ and to apply Shelby County v. Holder retrospectively to invalidate the DOJ pre-clearance process as if it never happened. This is not how the law works. Shelby County v. Holder applies prospectively to redistricting after the decision, it does not apply retrospectively to completed acts of redistricting prior to the decision. The rule of law demands finality.

I am somewhat troubled that Judge Silver is entertaining the Arizona GOP's position in the order requesting additional briefing on the issue. This does not mean that she agrees with it. It is more likely to develop the record on appeal that the issue was thoroughly considered by the trial court.

Should the three judge federal court panel agree with the GOP position, however, it would lose jurisdiction of the case under the VRA, and as the order indicates, the federal court would abstain in favor of state court adjudication.

In other words, the case would have to be refiled in state court and the legal process would start all over. This delay would put us well into the 2014 election cycle where there must be certainty in the boundaries of state legislative districts. I imagine that the state court would issue a stay order maintaining the status quo until a final decision is rendered after appeals in the state courts. This means the legislative district boundaries in 2014 would remain the same as the legislative district boundaries in 2012. Ultimately, if the state courts were to agree with the Arizona GOP, the remedy is to send the matter back to the AIRC with instructions for a new redistricting process. That process would take us into the 2016 election cycle.

Oddly enough, the Arizona GOP's lawyers do not want the U.S. District Court to abstain
in favor of state court adjudication. They want to keep this case in federal court
because they are working against the 2014 election calendar. They are going to have to make one helluva convoluted argument about how the VRA is unconstitutional and Shelby County v. Holder should apply retrospectively, but the federal court nevertheless retains jurisdiction. It should make for one helluva piece of sophistry.

The U.S. District Court had the option of proposing its own district maps under the VRA if it rejected the AIRC maps as a remedy, but I would argue that this remedy is no longer available to the court after Shelby County v. Holder, with Section 5 of the VRA now in suspension.

The only question the U.S. District Court has to answer in this case is did the AIRC legislative district maps meet the constitutional and legal requirements applicable at the time the maps were approved by the DOJ? The answer to this question is clearly "yes."

Of course, this does not matter to the Arizona GOP and its secretive redistricting organization FAIR Trust, whose lawyers/lobbyists are litigating this case. Whatever the U.S. District Court rules, there will be an appeal to the D.C. Circuit Court of Appeals and eventually to the U.S. Supreme Court. This case is going to remain in the courts for years.

For those of you following this case closely, here is the briefing schedule:

Plaintiff's brief is due by July 19;

Defendant's brief is due by August 2;

Plaintiff's reply is due by August 9.

The order does not indicate oral argument, but the parties could request it.

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