Claiming illegal political motives, attorneys for Republicans are asking the U.S. Supreme Court to void the lines drawn by the Independent Redistricting Commission for the state's 30 legislative districts.
Challengers contend commission members acted improperly when they intentionally “packed” non-Hispanic Republicans into some districts. That meant remaining districts had a higher proportion of Democrats, giving candidates from that party a better chance of getting elected.
But it's worse than that. Thor Hearne, lead attorney for the challengers, said the commission accomplished that goal by ignoring constitutional requirements to create districts of equal population. In fact, he said the difference in population between the largest and smallest districts is 9 percent.
Hearne acknowledged that the majority of a three-judge panel meeting in Phoenix conceded the population differences and even the benefit to Democrats. But they accepted arguments by commission attorneys all that was done in hopes of ensuring that the U.S. Department of Justice would find the maps in compliance the federal Voting Rights Act and its mandate to not dilute minority voting strength.
But Hearne said there are two problems with that.
“The VRA cannot constitutionally justify systematic population inequality on the basis of race, ethnicity, or partisanship,” he wrote.
And even if it could, Hearne pointed out to the justices that they actually invalidated the whole concept of getting Department of Justice preclearance.
Hanging in the balance is the political makeup of the Arizona Legislature.
A decision by the Supreme Court in the challengers' favor would force the commission to redraw the maps ahead of the 2016 election, this time with districts of more equal population — and presumably with more districts favorable to Republicans. It also would keep future commissions who create new lines every decade from doing the same thing.
Central to the legal fight is that question of population.
A 2000 voter-approved constitutional amendment took away the Legislature's power to draw its own districts — as well as congressional lines — and gave it to the commission. It requires commissioners to create districts that respect communities of interest, use county boundaries when possible, create as many politically competitive districts as possible and have districts of equal size.
Using 2010 census figures, each district should have about 213,000 residents. But the commission, by its own admission, had districts ranging from 203,026 to 220,157.
But the trial court, in its majority opinion, concluded the U.S. Constitution does not require that legislative districts have precisely equal population.
Instead, the judge said, there can be “divergencies” that are necessary to achieve other goals. In this case, they said, that the commission's decision to manipulate the lines was primarily to comply with the Voting Rights Act and not to give Democrats a political leg-up.
But Judge Neil Wake, in his dissent, wasn't buying it, writing that “it does not take a Ph.D. to see this stark fact of intended party benefit.”
Now Hearne wants the justices to adopt Wake's findings. He said to leave the districts as is dilutes the votes of those packed into the GOP districts.
Attorney Michael Liburdi, who has been involved in the legal arguments in Arizona, conceded that politics have always played a role in redistricting decisions.
“Political gerrymandering is those weird salamander-shaped districts that we all see in our civics textbooks where the politicians try to preserve incumbency or preserve a Republican or Democrat edge,” he said. Liburdi said if the commission crafted districts of equal population "we wouldn't be making this argument'' even with the anti-Republican bias.
But Liburdi said the maps that he believes were designed to give Democrats an edge have districts which are “significantly overpopulated” with Republicans. That, he said, violates the one person-one vote provisions of the Equal Protection Clause of the U.S. Constitution.
Hearne agreed, saying the commission cannot ignore requirements for districts of equal size when “the reason for this deviation is an effort to gain advantage for the political party.”
There is some evidence the maps adopted in 2011 helped increase Democrat representation.
There are currently 13 Democrats in the 30-member Senate and 24 Democrats out of 60 House members. That compares with just nine Senate Democrats and 20 in the House prior to redistricting. . But Democrats have had larger numbers in some prior years.
The Supreme Court has given no indication of when it will consider the appeal.