Every challenge the Arizona Republican Party has made to the Arizona Independent Redistricting Commission (AIRC) redistricting plan for Arizona has ended in failure.
Today the U.S. Supreme Court issued a unanimous opinion in Harris v. Arizona Independent Redistricting Commission (.pdf) rejecting the challenge to legislative districts from the Original North Phoenix Tea Party founder Wesley Harris. Arizona Secretary of State Michele Reagan filed an amicus brief in support of Harris. Attorney General Mark Brnovich had to argue in favor of the Secretary of State at oral argument before the Court.
A three judge panel of the U.S. District Court for Arizona, by a vote of 2 to 1, entered a judgment for the AIRC. The majority found that “the population deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d 1042, 1046 (Ariz. 2014). Appellants sought direct review in the U.S. Supreme Court.
Justice Breyer delivered the unanimous opinion of the Court:
The Fourteenth Amendment’s Equal Protection Clause requires States to “make an honest and good faith effort to construct [legislative] districts . . . as nearly of equal population as is practicable.” Reynolds, 377 U. S., at 577. The Constitution, however, does not demand mathematical perfection. In determining what is “practicable,” we have recognized that the Constitution permits deviation when it is justified by “legitimate considerations incident to the effectuation of a rational state policy.” Id., at 579.
In cases decided before Shelby County v. Holder, 570 U. S. ___ (2013), Members of the Court expressed the view that compliance with §5 of the Voting Rights Act is also a legitimate state consideration that can justify some deviation from perfect equality of population. See League of United Latin American Citizens v. Perry, 548 U. S. 399, 518 (2006)[;] see also
Vieth v. Jubelirer, 541 U. S. 267, 284 (2004) (plurality opinion) (listing examples of traditional redistricting criteria, including “compliance with requirements of the [Voting Rights Act]”). It was proper for the Commission to proceed on that basis here.
We have further made clear that “minor deviations from mathematical equality” do not, by themselves, “make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State.” Gaffney, supra, at 745. We have defined as “minor deviations” those in “an apportionment plan with a maximum population deviation under 10%.” Brown, 462 U.S., at 842. And we have refused to require States to justify deviations of 9.9%, White v. Regester, 412 U. S. 755, 764 (1973), and 8%, Gaffney, 412 U. S., at 751. See also Fund for Accurate and Informed Representation, Inc. v. Weprin, 506 U. S. 1017 (1992)[.]
In sum, in a case like this one, those attacking a state-approved plan must show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors rather than the “legitimate considerations” to which we have referred in Reynolds and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their burden here.
Appellants’ basic claim is that deviations in their apportionment plan from absolute equality of population reflect the Commission’s political efforts to help the Democratic Party. We believe that appellants failed to prove this claim because, as the district court concluded, the deviations predominantly reflected Commission efforts to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary. And the record bears out this conclusion.
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The upshot was not random decision-making but the process did create an inevitable degree of uncertainty. And that uncertainty could lead a redistricting commission, as it led Arizona’s, to make serious efforts to make certain that the districts it believed were ability-to-elect districts did in fact meet the criteria that the [Justice] Department might reasonably apply. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___ (2015) (slip op., at 22) (“The law cannot insist that a state legislature, when redistricting, determine precisely what percent minority population §5 demands [because] the standards of §5 are complex . . . . [To do so would] lay a trap for an unwary legislature, condemning its redistricting plan as either . . . unconstitutional racial gerrymandering [or] . . . retrogressive under §5”).
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Changes in the boundaries of District 8, however, proved more controversial.
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Only then, after the counsel and consultants argued for District 8 changes for the sake of Voting Rights Act pre-clearance, did Chairwoman Mathis support those changes. On that basis, the Commission ultimately approved the changes to District 8 by a vote of 3 to 2 (with the two Republican-appointed commissioners dissenting). The total population deviation among districts in this final map was 8.8%. While the Commission ultimately concluded that District 8 was not a true ability-to-elect district, the State’s submission to the Department of Justice cited the changes to District 8 in support of the argument for preclearance. On April 26, 2012, the Department of Justice precleared the submitted plan.
On the basis of the facts that we have summarized, the District Court majority found that “the population deviations were primarily a result of good-faith efforts to comply with the Voting Rights Act . . . even though partisanship played some role.” 993 F. Supp. 2d, at 1046. This conclusion was well supported in the record. And as a result, appellants have not shown that it is more probable than not that illegitimate considerations were the predominant motivation behind the plan’s deviations from mathematically equal district populations—deviations that were under 10%. Consequently, they have failed to show that the Commission’s plan violates the Equal Protection Clause as interpreted in Reynolds and subsequent cases.
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First, [the Appellants] claim that the plan reflects unreasonable use of partisan considerations by pointing to the fact that almost all the Democratic-leaning districts are somewhat underpopulated and almost all the Republican-leaning districts are somewhat overpopulated. That is likely true. See 993 F. Supp. 2d, at 1049 (providing a chart with percentage deviation figures by district). But that fact may well reflect the tendency of minority populations in Arizona in 2010 to vote disproportionately for Democrats. If so, the variations are explained by the Commission’s efforts to maintain at least 10 ability-to-elect districts. The Commission may have relied on data from its statisticians and Voting Rights Act expert to create districts tailored to achieve pre-clearance in which minority voters were a larger percentage of the district population. That might have necessitated moving other voters out of those districts, thereby leaving them slightly underpopulated. The appellants point to nothing in the record to suggest the contrary.
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Second, the appellants point to Cox v. Larios, 542 U. S. 947 (2004), in which we summarily affirmed a district court’s judgment that Georgia’s reapportionment of representatives to state legislative districts violated the Equal Protection Clause, even though the total population deviation was less than 10%. . . . It is appellants’ inability to show that the present plan’s deviations and boundary shapes result from the predominance of similarly illegitimate factors that makes Cox inapposite here. Even assuming, without deciding, that partisanship is an illegitimate redistricting factor, appellants have not carried their burden.
Third, appellants point to Shelby County v. Holder, 570 U.S. ___ (2013), in which this Court held unconstitutional sections of the Voting Rights Act that are relevant to this case. Appellants contend that, as a result of that holding, Arizona’s attempt to comply with the Act could not have been a legitimate state interest. The Court decided Shelby County, however, in 2013. Arizona created the plan at issue here in 2010. At the time, Arizona was subject to the Voting Rights Act, and we have never suggested the contrary.
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For these reasons the judgment of the District Court is affirmed.
I have said from the beginning that this case was without legal merit based upon existing Supreme Court precedents. The Court’s opinion agrees with my earlier legal analysis on every point.
Media coverage of this case over the years has been largely limited to “Republicans say . . .” as if what they said had any merit; it did not. This created a false sense among GOP partisans that they had a legitimate claim. They did not. This is a failure of the media in giving credence to both sides even when one side clearly has no credible basis for what they say. The law is what it is. That is how this frivolous lawsuit should have been reported.
Secretary of State Michele Reagan should pay for the expenses associated with having Attorney General Mark Brnovich argue her amicus brief before the Court out of her own pocket. Taxpayers should not have to pay for frivolous lawsuits motivated by partisan political grandstanding.
UPDATE: Arizona’s Politics blog has an update on the final remaining redistricting challenge, Leach v. AIRC, Maricopa County Superior Court No. CV2012-007344. READ: Redistricting Eyes Now Turn To Superior Court, Where AZSOS Reagan, AG Brnovich Would Rather Fight AND Switch:
Now that the U.S. Supreme Court has today knocked down Republicans’ challenges to Arizona’s redistricting process and maps (for the 2nd time), all interested eyes will turn to a 3rd, still-active case in Maricopa County Superior Court.
There, last month, the judge (Hon. Roger Brodman) denied the Arizona Independent Redistricting Commission’s (“AIRC’s”) motion to disqualify Arizona Secretary of State Michele Reagan and Arizona Attorney General Mark Brnovich from taking an active role on behalf of the Plaintiffs…even though they are named as Defendants.
The 7-page minute entry from March 14 concludes that the politicians can fight and switch because they are only nominal defendants and since it will not end in a jury trial, there will be no prejudice, and “(i)t will not be decided on political posturing of any of the participants in this case.“
The judge notes that discovery in the 2012 case will be cut off shortly, and that the AIRC raised the close issue of whether the AG’s office should be disqualified under the rules of ethics was not made in time. Reagan and Brnovich’s offices made the declaration of fighting and switching to the Plaintiffs’ side in September 2015, but the motion to disqualify was not made until December 16.
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Through last June, the AIRC had spent $1M of taxpayers’ funds defending the Leach suit ($3.65M for the three cases). Arizona’s Politics has requested an updated figure.
UPDATE: Arizona’s Politics blog has the updated figures: BREAKING: Arizona Taxpayers Have Spent (Approximately) $4.5M In Legal Fees Defending Republican-Backed Challenges To Redistricting:
Arizona’s Politics notes that more than $850,000 has been paid by the state to law firms from the AIRC’s account in the current fiscal year.
As almost all of that will be related to the Harris (decided today) and Leach cases (and not general legal expenses), the total is now very close to $4.5M. The breakdown among the seven firms is to the right; it totals $853,724.55.
The $4.5M total does NOT include the amount taxpayers have paid for Assistant AG’s and other Arizona-employed attorneys (at the Legislature, the Secretary of State’s Office, the Governor’s Office, etc.) while they have been working on these cases. We have also not included those challenges that were mounted by the AG or the Governor. It also does not include any payments that may have been made between last year’s article and the close of the fiscal year at the end of that month.
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It is also worthwhile to note here that the AIRC received several hundred thousand dollars’ worth of pro bono legal services by top Supreme Court advocates Seth Waxman and Paul Smith, in both the cases brought by the Arizona GOP legislators and the Harris case (partly funded by GOP-philic dark money).