(Update) Redistricting trial in U.S. District Court


Posted by AzBlueMeanie:

Hopefully you were all following reporting by Steve Muratore at the Arizona Eagletarian blog last week as I recommended because, I have to be honest, the corporate media reporting on this case has been so pedestrian and politicized it appears to have been culled from press releases from the conservative media entertainment complex. Bloomberg News, Arizona Capitol Times, and The Arizona Republic in particular were horrible.

This poor court reporting occurred the same week that a legend of court reporting, Anthony Lewis, the great New York Times reporter and columnist, passed away at the age of 85. On Anthony Lewis:

As a journalist, Lewis is best known for revolutionizing the coverage of the Supreme Court. In his remembrance of Lewis, current New York Times legal reporter Adam Liptak wrote:

As a reporter, Mr. Lewis brought an entirely new approach to
coverage of the Supreme Court, for which he won his second Pulitzer, in

“He brought context to the law,” said Ronald K. L. Collins, a scholar
at the University of Washington who compiled a bibliography of Mr.
Lewis’s work. “He had an incredible talent in making the law not only
intelligible but also in making it compelling.”

Before Mr. Lewis started covering the Supreme Court, press reports on
its decisions were apt to be pedestrian recitations by journalists
without legal training, rarely examining the court’s reasoning or
grappling with the context and consequences of particular rulings
. Mr.
Lewis’s thorough knowledge of the court’s work changed that. His
articles were virtual tutorials about currents in legal thinking,
written with ease and sweep and an ability to render complex matters

“There’s a kind of lucidity and directness to his prose,” said Joseph Lelyveld, a former executive editor of The Times. “You learned an awful lot of law just from reading Tony Lewis’s accounts of opinions.” [Emphasis supplied.]

I am left to wonder whether most of Arizona's political reporters are old enough to even know who Anthony Lewis is, let alone what his contributions to court reporting were. They surely did not learn by example from the body of work of Anthony Lewis. We'll miss you, Tony.

Since I had prior commitments which prevented me from attending this trial, I am foced to rely on the available reporting. The Arizona Republic reported on Friiday, Arizona redistricting case nearing a decision:

On Friday, both sides in the weeklong trial summed up their arguments
before a three-judge panel in U.S. District Court. The outcome will
determine whether the map that was used in last fall’s legislative races
will remain in place for the next decade or whether the five-member
independent commission will be sent back to draw a new map.

* * *

Throughout the trial over Arizona’s legislative lines, Judge Neil
Wake raised the question of how individual voter rights balanced against
minority voting rights. Wake is no stranger to redistricting battles:
In the previous two decades, he represented Republican clients in
lawsuits over the redistricting plans that followed the U.S. Census in
both 1990 and 2000

[Note: This raises a legitimate concern as to why Judge Wake is sitting on this case. Judge Wake, on his own volition, should have recused himself from this case based upon his previous representation of Republicans in similar redistricting matters (which involved many of the same actors, i.e., the GOP's favored mapping company and GOP counsel Lisa Hauser). The AIRC attorneys, however, did not object to Judge Wake.]

Attorney Colin Campbell told Wake, and fellow federal judges Roslyn
Silver and Richard Clifton, that the commission carefully documented its
rationale when it created districts of unequal population to
accommodate nine districts in which a majority of the voters were
minorities. That was an increase from the last decade’s benchmark of
seven such districts, and clearly showed Arizona was making progress in
giving minority voters the opportunity to elect a candidate of their
choosing, he said.

Arizona must get federal preclearance on any election-related change,
including redistricting maps, due to past violations of the Voting
Rights Act. The commission met its goal to win that approval with its
first submission.

Although the U.S. Constitution calls for districts to be roughly
equal in population, Campbell said the commission’s voting-rights
experts said some population imbalance was permitted if the panel made a
record of how and why it made changes.

“Intent in this case is not a mystery,” Campbell said. It’s all
spelled out in the volumes of meeting transcripts and other documents
submitted to the court. And, he added, there is not a “scintilla of
evidence” the commission was motivated by bias in favor of Democrats.

This is a correct statement of the law. As I have previously posted:

Cantelme's 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 just last year (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.

Back to the Arizona Republic:

[A]ttorney David Cantelme, who represents the GOP plaintiffs, said the
fact that the most overpopulated districts were heavy with Republican
voters, while the lowest-populated districts favored Democrats, showed a

“This is a vote-dilution case,” he told the judges, in pressing the
point the commission violated the federal protection of one-man,
one-vote and deprived Republican voters of equal protection under the
law. Cantelme argued the commission could have met its obligation to
protect minority voting rights by drawing fewer districts and without
heavily packing Republican voters into the remaining districts

Translation: The AIRC should have "packed" minority Democratic voters into fewer minority-majority districts with a super-majority of minorities, e.g., a 65% advantage rather than a 55% advantage in what are considered "competitive" districts. (This is what the GOP-dominated AIRC in 2002 did). This was the GOP plan for which David Cantelme and Michael Liburdi, the lawyers/lobbyists for the GOP's secretive FAIR Trust redistricting organization were lobbying the AIRC. Cantelme's argument boils down to the AIRC should have adopted his GOP redistricting plan, and because the AIRC didn't, he is suing them to get his way on behalf of his clients.

The trial testimony concluded last week. I am troubled by some of the comments from Judge Wake as reported by Steve Muratore. "Judge Wake cited a book, Whose Votes Count? by Abigail Thernstrom, that he believes gets at the essence of the Voting Rights Act." This book is conservative think-tank orthodoxy which is not well-grounded in law. I believe this potentially demonstrates bias on the part of Judge Wake, especially in light of his representation of the GOP in prior redistricting cases. Again, Judge Wake should have recused himself from this case.

Steve Muratore reports that final briefs from the parties are due to be submitted to the Court on April 8. It will be some time after that before a decision is announced.