A lawyer for the Republican-controlled Legislature asked a federal court Friday to void a decision by Arizona voters to have an independent commission decide how the state is divided into its nine congressional districts.
Peter Gentala acknowledged that voters, in approving Proposition 106 in 2000, said they no longer wanted politicians drawing the lines, a process that often resulted in legislative and congressional maps that favored incumbents and their political allies. Instead they amended the Arizona Constitution to create the five-member Independent Redistricting Commission.
But Gentala told a three-judge panel voters had no right to do that, at least for congressional districts. He said that runs afoul of a provision in the U.S. Constitution which spells out that the Legislature of each state determine the “time, place and manner” of elections.
Judge Murray Snow said he's not sure that constitutional provision about holding elections also governs the redistricting process.
“If you're telling us the Constitutional test says it, I want you to show me where,” he told Gentala. The attorney responded by arguing that the word “manner” is broad enough to include redistricting.
Gentala presented his arguments as one of the supremacy of the U.S. Constitution over the power of Arizona voters, as the ultimate lawmakers under the state Constitution, to make such decisions. But the real fight is about naked political power.
GOP Lawmakers are hoping for a ruling in their favor — and quickly. They want to redraw the lines before this year's race in a manner more favorable to Republicans that the current maps, which created a congressional delegation with five Democrats and four Republicans.
Mary O'Grady, who represents the commission, pointed out that the Legislature never challenged Proposition 106 when it was first approved — and when the congressional maps crafted by the commission a decade ago were more favorable to Republicans. It was only when they did not like the result that Republicans who control the Legislature raised the issue that their rights under the U.S. Constitution were being ignored.
Nothing this three-judge panel rules would affect the other half of Proposition 106 empowering the Independent Redistricting Commission to draw lines for the state's 30 legislative districts. But in a separate fight playing out in another federal courtroom, another group of Republicans is seeking to have that legislative map declared invalid. That is based on claims the commission ignored legal requirements for equal population of each district to instead create a map more favorable to Democrats.
A ruling for challengers in that case, though, would simply force the commission to redraw the legislative maps. It would not return the power to the Legislature.
The outcome of the case heard Friday could turn on a simple question: Who is the “legislature”?
Undisputed is that the U.S. Constitution spells out that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”
Gentala said there can be only one meaning to that: the representative body elected by voters.
O'Grady said the Arizona Constitution determines who has legislative authority. In this case, she said, voters amended that document through Proposition 106 to say that legislative power to draw district lines would be given to this five-member commission.
That led to questions from Judge Mary Schroeder.
“How far can the state go in excluding the legislature from the (redistricting) process?” she asked.
O'Grady responded that voters were free to exclude them entirely, but she also pointed out that if the Legislature is unhappy with the process they are free to ask voters to repeal Proposition 106.
State senators actually voted 21-9 two years ago to put the question on the ballot, only to have the proposal die in the House.
O'Grady also argued that the Legislature doesn't even have the legal right to be in court to challenge Proposition 106 in the first place.
She pointed out that the Voter Protection Act, another section of the Arizona Constitution, forbids the Legislature from repealing or altering any measure approved by voters. O'Grady said while that's primarily meant to preclude votes to undermine initiatives in the Legislature, it also means they cannot try to have voter-approved measures voided by judges.
Gentala, however, said the Voter Protection Act cannot override the right of lawmakers to argue that Proposition 106 runs afoul of the U.S. Constitution.
Judge Paul Rosenblatt, who presided over the three-judge panel, said he realizes that time is running out to affect the 2014 election and promised a ruling as soon as possible.