Another SCOTUS Surprise: AZ GOP vs. AIRC, Part II

I noted yesterday that Harris v. Arizona Independent Redistricting Commission has been distributed for the Conference of June 29. The U.S. Supreme Court will issue its “clean up” Orders List for this term Tuesday morning. “The discussion of Harris in Arizona Legislature indicates that Harris will be dismissed tomorrow.”

OK, I was wrong about that! It appears that the four dissenters in Arizona Legislature v. Arizona Independent Redistricting Commission are being petulant and want another bite at the apple. In today’s “clean up” Orders List (.pdf), the Court noted “probable jurisdiction” in Harris v. Arizona Independent Redistricting Commission (14-232).

This is the Supreme Court’s way of saying it has decided to get briefs and hear oral argument in a direct appeal from a three-judge district court. When a court notes “probable jurisdiction” it is saying it believes the questions likely will be substantial enough and that it wants to get briefs and hear further argument.

Lyle Denniston at SCOTUSblog comments on the Orders List, A new look at race and politics in redistricting:

Twenty-four hours after giving constitutional backing for Arizona’s use of an independent commission to draw new election district maps for its members of Congress, the Supreme Court on Tuesday took on a case complaining that the same state agency wrongly used race and partisanship in crafting state legislative district boundaries.

The new election law case, Harris v. Arizona Independent Redistricting Commission, was apparently held inactive on the Court’s docket until it ruled on a claim by the state legislature that it was unconstitutional to hand the congressional redistricting task to an independent agency not elected by the people.

The Court rejected that challenge in a divided decision Monday, and then, on Tuesday, ordered a review of how the commission handled the fashioning of state legislative election maps in the wake of the 2010 Census.

A group of Arizona voters raised a number of issues in the new case: that the 2012 state legislative maps violated the “one person, one vote” requirement of population equality among districts because Republican voters were packed into districts to enhance minority voter strength in other districts, that this treatment of Republican voters used partisan factors illegally, and that the commission illegally sought to create districts dominated by Hispanics to enhance their voting power.

These uses of race and partisanship, the new appeal argued, were done to try to enhance prospects that the U.S. Department of Justice would approve the new maps under the Voting Rights Act, at a time when Arizona had to get such clearance before implementing new election laws.  That preclearance requirement has now been wiped out by the Supreme Court, the voters’ lawyers noted, so such factors can no longer be justified.

The Court has already agreed to rule at its next Term on a case that also tests the application of the one-person, one-vote principle.   The issue in Evenwel v. Abbott is whether the process of redistricting should use population measured by voters in each district, or total population in each, in judging whether the equality of representation rule has been violated.

Robert Barnes at the Washington Post adds, Justices agree to hear dispute over union fees, reapportionment:

The court will return to the issue of reapportionment in Arizona, just a day after validating an independent commission to which the state’s voters delegated redistricting powers. The court accepted a case that says the supposedly nonpartisan independent commission was too partisan in its redistricting decisions.

Chief Justice John G. Roberts Jr. wrote about the case extensively in his dissent to the court’s 5-to-4 ruling that Arizona voters had the right to cut the legislature out of redistricting decisions.

A district court panel ruled that partisanship played some role in the development of the commission’s plan but did not rise to the level of a constitutional violation.

“A finding that the partisanship in the redistricting plan did not violate the Constitution hardly proves that the commission is operating free of partisan influence — and certainly not that it complies with the Elections Clause,” Roberts wrote.

The Arizona Independent Redistricting Commission won its case in Harris. The Arizona Capitol Times (subscription required) reported, Court rejects challenge to IRC’s legislative map:

A federal three-judge panel ruled that the Arizona Independent Redistricting Commission does not have to redraw any portion of its legislative district map, rejecting the claims from Republican challengers who that alleged the map violated the one-person-one-vote principle.

The IRC said it was simply trying to create districts that would comply with the Voting Rights Act. At the time, Arizona was subject to the Section 5 of the act, which required the U.S. Department of Justice to approve the state’s legislative districts.

The judges sided with the commission, saying the population deviations were based on Voting Rights Act compliance, not partisanship.

“We have concluded that compliance with the Voting Rights Act is a legitimate state policy that can justify minor population deviations, that the deviations in the map in large part resulted from this goal, and that plaintiffs have failed to show that other, illegitimate motivations predominated over the preclearance motivation,” the court’s order read.

Read the Order in Harris v. AIRC Here (.pdf).

 As I have posted several times, the argument that state legislative district populations must be strictlly equal is not supported at law. The U.S. Supreme Court has permitted population deviations to accommodate other legitimate concerns.

The U.S. Supreme Court in Tennant v. Jefferson Co. Commission et.al. 567 U.S. ___ (2012) upheld a West Virginia congressional map that differed in population between districts by as much as 4,871 people. Lyle Denniston wrote at SCOTUSblog.com, 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).

“The equal population standard for congressional districts is notably stricter than for legislative or other types of political districts. In contrast, state and local redistricting followed a “substantially equal” standard, which translated to a rough rule/guideline allowing most maps a 10% deviation. While not a clear cut rule, it has become an operational standard in the redistricting community.” U.S. Supreme Court Elaborates on Equal Population Requirement.

It is not clear to me what the four justices who voted for review in Harris find to be ‘substantial” questions given the Court’s precedents in this area of law. The Evenwell v. Abbott case is equally problematic: the Constitution requires apportionment of congressional districts by equal population — not equal number of registered voters. The four justices who voted fro review in these cases are clearly up to no good based upon long standing practices and court precedents.

UPDATE: Here is the jurisdictional statement submitted by the Plaintiffs in Harris (keep in mind that this case is about Republicans seeking to make permanent their partisan majority advantage in Arizona):

QUESTIONS PRESENTED

1.  Does the desire to gain partisan advantage for one political party justify intentionally creating over-populated legislative districts that result in tens of thousands of individual voters being denied Equal Protection because their individual votes are devalued, violating the one-person, one-vote principle?

2.  Does the desire to obtain favorable preclearance review by the Justice Department permit the creation of legislative districts that deviate from the one-person, one-vote principle? And, even if creating unequal districts to obtain preclearance approval was once justified, is this still a legitimate justification after Shelby County v. Holder, 133 S.Ct. 2612 (2013)?

3.  Was the Arizona redistricting commission correct to disregard the majority-minority rule and rely on race and political party affiliation to create Hispanic “influence” districts?

UPDATE:   In a new order, the Supreme Court said it would not be ruling on a complaint that the agency wrongly created districts to give Hispanic voters more political power (h/t SCOTUSblog).

The review of the case in the Court’s next Term will be confined to two issues, paraphrased as follows:

** Does the desire to give one party an election advantage justify sharp deviations from the principle of population equality among districts, in violation of the one-person, one-vote principle?

** Does the desire to gain approval by the U.S. Department of Justice Department for new districting maps justify such deviations in population equality, especially since Department approval is no longer a requirement?