Supporters of the Independent Redistricting Commission want a federal court to rule that the Arizona Legislature has no right to challenge the voter-approved law.
Attorney Tim Hogan is pointing out to the judges that the commission was created in 2000 not by the Legislature but by voters themselves. The Arizona Constitution specifically precludes lawmakers from seeking to alter or repeal what voters have enacted.
Hogan said what that means is the lawsuit filed last year by the Legislature seeking to void part of the law is legally invalid.
“They lack the capacity to sue,” he said Friday.
If Hogan wins, the entire challenge would go away.
Peter Gentala, an attorney for the Republican-controlled state House, acknowledged that the U.S. Supreme Court has ruled that individuals have no legal standing to sue over constitutional questions of federal election laws. If the Arizona Legislature cannot sue, then no one can.
But Gentala said he doubts it will come to that. He said Hogan's claim is based on a false premise that somehow Arizona voters — and the state constitutional provision known as the Voter Protection Act — can keep the Legislature from asserting rights it has under the U.S. Constitution.
Hanging in the balance is who has the right to draw the lines for the state's nine congressional districts.
More important, if the Legislature wins, the lines the Republicans who control both chambers would draw would likely be far different than the ones crafted by the commission. That, in turn, would mean big changes for a congressional delegation which now has five Democrats and four Republicans.
Prior to 2000 both congressional and legislative districts were crafted by state lawmakers. That usually led to maps which were favorable to incumbents and members of the majority party.
The 2000 initiative instead gave that power to a five-member commission. Four of the members are named by the top Republicans and Democrats in each chamber; they choose a fifth who is presumably independent.
In their lawsuit, the Legislature is arguing that the 2000 ballot measure violates the U.S. Constitution.
It says that procedures for electing members of Congress “shall be prescribed in each state by the Legislature.” And that, the lawmakers contend, trumps what voters here approved.
Commission lawyers do not dispute that point.
They argue, however, that Arizona voters, as the ultimate lawmakers, are free to delegate certain legislative duties to a panel other than the formal “Legislature.” They contend the five-member redistricting panel fits that definition.
But the three federal judges reviewing the issue may never get to decide that issue if they accept Hogan's argument.
Gentala called Hogan's arguments “innovative and unique,” but he also said they're flawed.
He said they presume provisions of the Arizona Constitution — specifically the one that bars lawmakers from tinkering with voter-approved laws — trumps the rights given to each state legislature in the U.S. Constitution.
“The whole notion is controlled by the Supremacy Clause,” he said, the federal constitutional provisions which says that federal laws take precedence over conflicting state laws.
Gentala also said the Voter Protection Act only limits the Legislature from voting to alter or repeal a voter-approved law. He disputes Hogan's contention it also bars lawmakers from going to court to kill it.
One preliminary hurdle Hogan has to overcome to make his argument is that neither he nor his clients are currently parties in the case. Instead, the 2000 initiative is being defended by attorneys for the commission itself.
He represents various individuals and groups which were either instrumental in getting the 2000 initiative approved or have since become backers. That includes the League of Women Voters, the Arizona Advocacy Network, as well as Dennis Burke who formerly headed Arizona Common Cause, and Bart Turner, former director of the Valley Citizens League, both of whom were involved in actually drafting the measure.
Hogan is seeking the ability to file “friend of the court” briefs on behalf of his clients to raise the issue. The Arizona Inter-Tribal Council also wants to join that effort.
This is only one of three pending lawsuits dealing with redistricting.
A separate three-judge panel in federal court is considering arguments that the map the commission drew for the state's 30 legislative districts is illegal. Challengers say the commission ignored requirements that the districts be virtually identical in population, something they contend was done to give a political edge to Democrats.
There also is a case in Maricopa County Superior Court which argues that the commission did not follow its own procedures in drawing up congressional lines.