Posted by AzBlueMeanie:
A follow-up to an earlier post, AIRC Update: Tea-Publican deadbeats sue the AIRC with your tax dollars to overturn Prop. 106 that created the AIRC:
The Tea-Publican controlled legislature is suing the Arizona Independent Redistricting Commission (AIRC), arguing that the voter approved Proposition 106 (2000) to the state constitution that created the AIRC violates the U.S. Constitution. And even though only Tea-Publicans argue this for their partisan political advantage, they are using your tax dollars to overturn the will of the voters.
The parties are now filing their pleadings. Howard Fischer reports, in only the way he can, Arizona redistricting commission argues state legislators shouldn't draw Congressional lines - East Valley Tribune:
Members of the Independent Redistricting Commission want a federal judge to rule that state lawmakers are wrong in saying only they get to draw lines for congressional districts.
In legal papers filed in U.S. District Court, attorneys for the commission acknowledge that the U.S. Constitution does say that the manner of selecting members of Congress "shall be prescribed in each state by the Legislature.'' And it was the commission created the maps used last decade and again last year for the coming decade.
The lawyers, however, told Judge Paul Rosenblatt that process is legal.
The case, however, will turn on that language in the U.S. Constitution.
Commission attorneys Joe Kanefield and Mary O'Grady said the flaw in the legal challenge is that state lawmakers -- or at least the Republicans who dominate the Legislature and authorized the lawsuit -- believe that term "Legislature'' means only the body that makes state laws.
"However, the Supreme Court has made clear that the term refers to the entire lawmaking process of the state, and not just the state's legislative body,'' the lawyers wrote.
That starts, they said, with the power of people to create their own laws through the initiative and referendum process. In fact, it was just such a process, outside the scope of the Legislature, that led to creation of the Independent Redistricting Commission.
They also pointed out that Congress has not used its power to override voter-created redistricting commissions in Arizona and elsewhere, even though the Constitution gives it the power to do just that.
The larger issue, according to the attorneys, is where the ultimate power resides.
"Fundamental to Arizona's structure of government is that the people, while establishing the Legislature and vesting it with legislative power, nonetheless also reserved legislative power for themselves,'' the commission's lawyers argued.
In this case, they said, the voters exercised that power to create the Independent Redistricting Commission, specifically giving that body to draw the boundaries not just for congressional districts but also legislative districts, which are not an issue in this lawsuit. And the whole system was made a part of the Arizona Constitution, "thereby establishing the commission as a legislative body.''
And they said the Arizona Supreme Court, in a separate matter, has concluded the commission "acts as a legislative body.''
Finally, the commission's attorneys told Rosenblatt he should toss the case if for no other reason than it has now been a dozen years since the system was approved. [This is the legal doctrine of "laches."]
"If the Legislature believed that the creation of an independent commission to engage in the redistricting of Arizona's congressional district violated the (U.S. Constitution's) Elections Clause, it should have filed suit in 2000,'' the lawyers argued. Instead, they not only waited 12 years but waited until the lines were drawn for the races in 2012 and beyond and those maps had been given the required review by the U.S. Department of Justice.
What Howie likes to leave out is what I have posted previously, AIRC Update: Tea-Publican deadbeats sue the AIRC with your tax dollars to overturn Prop. 106 that created the AIRC:
The reporting on this lawsuit has been horrible. Reporting earlier this year was much better. Here is a portion of what I posted earlier this year. AIRC Update: Tea-Publican deadbeats seek to litigate with your taxpayer dollars:
Let's hear from someone who actually knows what he is talking about, Paul Bender, a constitutional law professor at Arizona State University. GOP lawmakers seek to overturn redistricting commission’s authority to create maps | Arizona Capitol Times (subscription required):
Paul Bender, a constitutional law professor at Arizona State University, said he doesn’t think such a lawsuit has much merit.
The “times, places and manner” referred to in the Constitution refer to the actual machinations of elections, Bender said.
Further, Bender said “the Legislature” referenced in that section means the state government more broadly. Examples of this can be found in the several parts of the Arizona Constitution where election processes are described.
“It means whatever processes the state has established for elections,” Bender said. “It includes the state constitution and citizen initiatives.”
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Bender said that such a lawsuit, if it were successful, would also have far-reaching effects for redistricting, and not just in Arizona. Five other states, California, Hawaii, Idaho, New Jersey and Washington, also have independent redistricting commissions.
The authority of those states’ commissions would also be called into question under the lawsuit proposed.
Further, Bender said, the next part of the same section of the Constitution states that “Congress may at any time by law make or alter such regulations…” Bender said that if the suit were successful in arguing that the section of the Constitution applies to redistricting, that Congress would be able to redraw states’ congressional districts, throwing the commonly held basics of redistricting practice into chaos.
The political gossip rag The Yellow Sheet Report (subscription required) also has this from Loyola Law School Professor Justin Levitt:
The underlying premise of the lawsuit is not unheard of among election law and redistricting experts, but experts tend to agree that such a lawsuit would have minimal chance of succeeding.
Loyola Law School Professor Justin Levitt, a regular contributor to electionlawblog.org said the premise is “not an unfamiliar theory,” but added that a disconnect between the U.S. Constitution and subsequent state constitutions and federal case law saps chances of victory. The U.S. Constitution was framed before the notion of citizen initiatives, which are included in progressive state constitutions like Arizona’s, and that early 20th century case law has interpreted Article 1, Section 4’s use of the term “legislature” to mean the “legislative process.”
A strict interpretation, he said, would preempt any influence, input or considerations from citizens, governors or even the courts. “They would essentially be arguing that the people can’t set the rules for redistricting,” said Levitt, adding that 1916 U.S. Supreme Court case law in State of Ohio ex rel Davis v. Hildebrant, 241 U.S. 565 - FindLaw | Cases and Codes upheld the use of the referendum process for redistricting in Ohio. “It fairly squarely decides that it’s okay for the people to exercise this power, despite the Constitutional grant of power over congressional redistricting to the ‘Legislature,’” Levitt said.
For a more recent example, Levitt said that the 11th Circuit Court of Appeals [in Diaz-Balart v. Scott] rejected the Florida Legislature’s objection to a ballot measure that applied to congressional redistricting. “I think it’s a longshot if [Art. 1, Sec. 4] means the Legislature and the Legislature only,” he said.
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One issue I have not seen addressed in the reporting that I have seen is that the legislature can only use taxpayer money for lawsuits in support of or defense of legislation of importance to the legislature as a whole. The alleged "constitutional issue" being pursued by the Tea-Publicans in the Arizona legislature is motivated by political partisanship for purely partisan political advantage in elections.
In any joint legal representation, a conflict of interest and adverse interests may arise between litigants requiring separate legal representation. That conflict of interest and adverse interests between the Tea-Publican majority and the Democratic minority clearly exists here in spades, requiring separate legal counsel. The Tea-Publicans do not speak for the legislature as a whole -- despite their tyrannical beliefs to the contrary.
The Tea-Publicans ought to be required to spend their own money on their own lawyers for this purely partisan litigation. Yours and my tax dollars should not be subsidizing GOP lawsuits for purely partisan litigation, allowing these Tea-Publicans to escape having to pay one dime out of their own pockets for this litigation. Talk about deadbeats!
The case before Judge Rosenblatt is actually one of three Tea-Publican lawsuits against the AIRC.
Another federal court lawsuit alleges that commissioners did not follow the proper procedures when dividing up the state into its 30 legislative districts. Steve Muratore at the Arizona Eagletarian has more on this lawsuit. The Arizona Eagletarian: Redistricting -- Litigation Update; Recent Mtg; Rules of Decorum:
Late last week, the Arizona Independent Redistricting Commission filed a new motion to dismiss the amended complaint filed in federal court in the case claiming the voting rights of Republicans is wrongfully diluted in the new legislative district map.
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And the Associated Press reported yesterday that the three judge panel had set the matter for hearing on October 31.
A similar challenge is pending in Maricopa County Superior Court over how the maps were drawn for the congressional districts. A motion to dismiss in that case is set for oral argument on August 22, 2012. Steve Muratore at the Arizona Eagletarian has an earlier update on this lawsuit The Arizona Eagletarian: Redistricting -- litigation update:
On Monday [July 30], [Lisa] Hauser and [Michael] Liburdi filed their response to the AIRC motion to dismiss the first amended complaint. The document is actually 59 pages long.
I will look forward to Steve Muratore's updates.