Two Court Cases that Saved the Arizona Independent Redistricting Commission

As Arizona’s Independent Redistricting Commission (AIRC) awaits census data to draw legislative and Congressional maps, Arizonans should remember two court cases that blocked gerrymandering.

• One event was a Supreme Court victory for Arizona’s AIRC, with Ruth Bader Ginsberg writing the majority opinion.
• The other was the temporary unseating of Colleen Coyle Mathis, the chairwoman of the commission, by then-Governor Jan Brewer for being a closet Democrat. Mathis was reseated after former Arizona Chief Justice Thomas Zlaket defended her.

GOP: the AIRC is unconstitutional

Proposition 106 — creating Arizona’s Independent Redistricting Commission — was passed in 2000 and went into effect in the 2001 census cycle.

Republicans sued the Commission in 2012, culminating in the landmark U.S. Supreme Court opinion, Arizona State Legislature v. Arizona Independent Redistricting Commission.

The GOP argued the creation of the Arizona Independent Redistricting Commission violated the Elections Clause of the U.S. Constitution, which states: “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

The U.S. District Court for the District of Arizona rejected the Republican legislators’ complaint.

The district court found that prior Supreme Court decisions “demonstrate that the word ‘Legislature’ in the Elections Clause refers to the legislative process used in [a] state, determined by that state’s own constitution and laws,” and that the lawmaking power in Arizona “plainly includes the power to enact laws through [ballot] initiative.”

When the Supreme Court heard the case in 2015, Ruth Bader Ginsburg wrote the 5-4 majority opinion, upholding the Commission’s constitutionality, along with the people’s right to vote by ballot initiative.

Chief Justice John Roberts’ dissented. “Nowhere does the majority explain how a constitutional provision that vests redistricting authority in ‘the Legislature’ permit a State to wholly exclude ‘the Legislature’ from redistricting,” Roberts wrote.

Justice Ginsburg called that a “wooden interpretation” of the Elections Clause.

“The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. “But the invention of the [Arizona voters to draft legislative] initiatives was in full harmony with the Constitution’s conception of the people as the font of governmental power,” Ginsberg wrote.

Curbing Gerrymandering

Ginsburg argued it would be “perverse to interpret the term ‘Legislature’ in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in.”

“The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have ‘a habitual recollection of their dependence on the people,’” Ginsburg wrote, quoting James Madison.

“In so acting,” Ginsberg stated, “Arizona voters sought to restore ‘the core principle of republican government,’ namely, “to choose their representatives, not the other way around.”

As a result of the 5-4 decision, five states joined Arizona to form independent commissions to fight gerrymandering. Colorado, Ohio, Michigan, Missouri, and Utah have all adopted Independent Boards.

Michigan Republicans sued the state in federal court over the constitutionality of the measure. But that didn’t stop Michigan voters from proceeding with the ballot initiative.

Commission chair faces Republican wrath

The second event marking the last census cycle was a battle between Colleen Coyle Mathis — a highly-intelligent but naïve woman — against Republican pitbulls.

Speaking at a University of Arizona redistricting seminar in 2018, Mathis, who has become an advocate for independent districting committees, said she took the unsalaried job of Chair of the Commission as a chance to help people participate in government.

Mathis was the swing vote on a five-person board, with two Republicans and two Democrats. As the wildcard player, she was the most vulnerable to criticism.

“During this time, people were unhappy with the maps,” she told her University of Arizona audience.

“There is a provision whereby the legislators can remove a member of the commission with two-thirds of a Senate vote,” Mathis said. “The unseating is for substantial neglect of duty or misconduct in office, or inability to discharge the duties of office.

“A supermajority in the Senate with 21 R’s and nine D’s exercised one of the removal provisions and Governor Jan Brewer threw me out of office.”

A lifelong Republican

Mathis received death threats that caused her to board up her house and spend time in another town with her husband, Christopher, an attorney.

“Christopher worked on a moderate Democrat’s campaign for the state legislature, focusing on Republican outreach and fundraising,” said Matt Vasilogambros, a writer with the Pew Charitable Trusts.

“A lifelong Republican, he [the husband] cut his teeth in politics working for Republicans such as former U.S. House Minority Leader Bob Michel of Illinois and former U.S. Senate Chuck Hagel of Nebraska.

“The married couple always assumed their friendships with members of the conservative Federalist Society would be the bigger controversy. They were clearly wrong. The floodgates opened to Republican attacks, saying Mathis was biased toward Democrats and needed to be removed,” Vasilogambros reported.

“Republican state Senator Frank A. Antenori said in July 2011, ‘The gun is loaded, and it’s just figuring out what target to point it at and when to pull the trigger.'”

Gabby Giffords had been shot that year, and the image of carnage was fresh in Mathis’ mind.

By the fall of 2011, then-Republican Governor Jan Brewer was ready to remove Mathis with the support of the Republican-dominated state Senate.

Two weeks after Mathis was ousted, former Arizona Chief Justice Thomas Zlaket represented her before the state Supreme Court. A portrait of Zlaket hung on the wall of the hearing room.

The Justice argued if Mathis weren’t reinstated, the commission “becomes a joke, a laughable joke subject to manipulation by the very people that the commission was designed to insulate from.”

The five-justice panel was unanimous in reinstating Mathis, just two hours after they heard her case.

Mathis is now speaking in different states and universities and serving a three-year stint in the department of political science at MIT, working on voting technology and data.

Voting rights act

Republicans in the state would litigate several aspects of the redistricting process in the coming years, such as its constitutionality and the standards by which the maps were drawn. But in each case, the commission and its maps prevailed.

Once reseated, Mathis began drawing maps based on the Voting Rights Act, as Arizona had required federal preclearance under the act until the Supreme Court gutted it in 2013.

Conservative Justices, including Chief Justice John Roberts, said preclearance was no longer necessary. (Ginsberg dissented from the bench, as she does when she finds a decision particularly wrongheaded.)

Nevertheless, Arizona’s Independent Redistricting Committee uses Voting Rights Act criteria when drawing 30 compact, contiguous, and competitive legislative districts and nine Congressional districts.

“We carved out: 4 Republican, 2 Democratic, and three competitive legislative districts, using the Voting Rights Act.”

New Chair seeks majority rule

Arizona’s new chair is Erika Schupak Neuberg, a Scottsdale psychologist and national board member of the American Israeli Public Affairs Committee, has been a donor to Governor Ducey and Republican delegates and some Democratic politicians, the Arizona Republic reported.

“Neuberg said that while she could cast tie-breaking votes, she would aim to have robust majorities reflected in the commission’s votes,” Oxford wrote. “If it’s always 3-2 and especially if it’s always in one direction, it’s a warning sign,” Neuberg said.

The panel will convene virtually at 9 a.m. on Feb. 2 and is expected to proceed shortly with hiring key staff, such as an executive director and general counsel.

10^th Congress member for Arizona

Arizona is on track to pick up a 10^th seat in the House of Representatives beginning in 2022. This will create political jockeying among current, and would-be federal lawmakers as current members of Congress weigh whether to seek reelection in their own redrawn district or run in another.

In 2022 voters will decide who is the new Governor, Attorney General, Secretary of State, Treasurer, Superintendent of Public Instruction, two Corporation Commission seats, and all state legislators. GOP lawmakers are also eyeing a chance to oust U.S. Senator Mark Kelly in 2022.