The attorney for Colleen Mathis is asking the state Supreme Court to overturn her ouster as chair of the Independent Redistricting Commission.
Paul Charlton contends there was no legal basis for the claim by Gov. Jan Brewer that his client is guilty of gross misconduct. And he said that made the 21-6 vote late Tuesday by the state Senate to ratify the governor’s action illegal.
Charlton also is weighing whether to effectively block efforts to replace her while the legal issues are debated. He told Capitol Media Services he may seek a court order allowing Mathis to remain on the commission in the interim.
That is virtually certain to provoke a fight from the Legislature.
If Mathis stays on, it frees her to vote with the two Democrats on the five-member panel to give final approval to the maps drawn for the state’s nine congressional and 30 legislative districts — the same maps that Brewer and Republican lawmakers contend are legally flawed. And once that happens, it becomes more difficult for foes to undo them.
Brewer, however, does not intend to back down. Press aide Matthew Benson said she was legally entitled to do what she did.
“The constitution specifically prescribes an oversight role for the governor and the state Senate when it comes to the redistricting process,’’ he said.
He pointed out that the voter-approved initiative that created the commission specifically allows the governor to remove any commission member guilty of gross misconduct.
“The governor has to make specific allegations to the IRC member,’’ he explained.
“They’re allowed to respond,’’ Benson said. “And if the governor finds gross misconduct or neglect of duty, then she can remove the member as long as she has a two-thirds vote of the state Senate.’’
He said the fact that Brewer got that margin proves there was sufficient evidence to remove Mathis, brushing aside the fact that Republicans control 21 of the 30 seats and all the votes came from party members.
“The letter of the law has been followed here,’’ Benson said.
Charlton said that’s not the case.
One of the charges is that Mathis, the registered independent on the panel, violated the state’s Open Meeting Law based on comments by other commissioners that she called them ahead of a meeting in an effort to line up votes to award a contract to Strategic Telemetry.
Mathis, in her response to Brewer, denied doing anything improper.
She said any conversations she had with other commissioners over the contract was based on her role as the agency’s chief procurement officer where she was “obligated to pursue consensus among the commissioners.’’
“I also viewed achieving consensus on a mapping consultant vendor, whichever mapping consultant vendor that might be, as important for instilling public confidence in our process,’’ she wrote to the governor.
But Charlton said the legal issue is even more basic than that: He said the commission believes that the Open Meeting Law does not apply to its work. At the very least, Charlton said it’s an open question, pointing out that the applicability of the law is currently before Maricopa County Superior Court Judge Dean Fink.
Another charge is that the maps the commission crafted do not comply with constitutional requirements, such as keeping “communities of interest’’ in the same districts. Charlton said that’s not for Brewer to decide.
“Any issue regarding the drawing of the maps should be before the courts and not before the Legislature,’’ he said. “That’s why the public passed the law that puts this in the hands of the Independent Redistricting Commission.’
“Nothing in the constitution says you can remove an IRC member, but first you have to get the OK from a judge,’’ he said.
How quickly the court will act remains unclear.
Commission attorney Mary O’Grady actually had sought Supreme Court intervention late Tuesday in a bid to block the ouster in the first place. But by the time she got the case in front of one of the justices, the Senate already had voted, making her request for a restraining order legally moot.
Charlton said he and O’Grady will now work together to get the court to declare the removal illegal.
Time could soon become an issue.
Absent a court order, Tuesday’s Senate vote leaves a vacancy on the commission. And that requires a separate screening panel to begin accepting applications from political independents, reviewing them and scheduling interviews to decide who they should nominate to fill the slot.
The final decision of whom to name is left to the other four commissioners — two of whom themselves were appointed by elected Demcorats and two by top GOP legislative leaders.
Charlton said the outcome of the legal dispute over whether the Republican governor and the Republican-controlled Legislature can fire his client is important for whomever is named the independent chair of the commission, whether now or a decade from now when a new group will be named.
“Just as they used to do in Eastern Europe, you take out one of the villagers, shoot him, and the rest of the villagers fall in line,’’ he said. “You can only imagine what kind of an “independent’’ chair the next one will be, knowing that it’s easy to gather 20 votes any time you draw a map that makes the governor and Republicans unhappy.’’