Posted by AzBlueMeanie:
Howard Fischer reports on Wednesday's hearing before a three judge panel of federal judges. GOP attorney to judicial panel: Redistricting maps are illegal:
David Cantelme told the three-judge panel the Independent Redistricting Commission broke the law when it created districts with varying populations despite state and federal laws generally requiring all voting districts to have approximately the same number of people. The commission's maps have a difference of more than 8 percent between the most and least-populated districts.
This is a losing argument. Apparently neither Howard Fischer nor David Cantelme are aware that the U.S. Supreme Court ruled on September 25, 2012 in a West Virginia Redistricting case — by an apparent unanimous vote — that lower-court judges not insist on close-to-zero differences in the population of each of a state’s districts for choosing members of the U.S. House of Representatives. Lyle Denniston wrote at SCOTUSblog.com, Opinion recap: Hedging on “one person, one vote”:
“Zero variance” in population is not the new constitutional norm for redistricting, the Court made clear. Just because computers can produce almost exactly equal-sized districts, the Constitution does not require it, the decision said.
After sitting on the case from West Virginia all summer long, the Court produced an eight-page, unsigned ruling that largely deferred to the wishes of that state’s legislature on how to craft the three districts for choosing its House delegation. The opinion can be found here. The new ruling came in the case of Tennant v. Jefferson County Commission (docket 11-1184).
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Tuesday’s ruling gave state legislators constitutional permission to have some variation in size between congressional districts, if the lawmakers do so to protect incumbents from having to run against each other, to avoid splitting up counties, and to avoid moving many people into a new district from the one where they had previously cast their votes. In what appeared to be a novel new declaration, the Court stressed that lower courts should not demand that a state prove specifically how each of those goals would be satisfied by moving away from equally populated districts. And, in another legal innovation, the Court said that a variation that is not really very big does not become a constitutionally suspect one just because a sophisticated computer program could be used to avoid nearly all such variations.
If the difference between a state’s largest House district and its smallest one is small — such as the 0.79% deviation in the West Virginia plan — that does not become unconstitutionally large just because it could be avoided by “technological advances in redistricting and mapping software.”
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On Tuesday, the Supreme Court said once again that state legislatures can have some inequality in the population of districts, if that is done, within reason, to serve the other goals that redistricting can be arranged to meet. The Court said explicitly that the Constitution does not guarantee absolute equality in population of districts, even if that could be achieved by high-tech computers. It also cautioned judges around the country not to go too far to second-guess how legislatures work out the various and competing interests that they confront in redistricting.
What else have you got, Howard?
[AIRC Attorney Mary O'Grady] she said there is legal flexibility to that equal-population requirement if differences are needed to meet other legitimate state goals. And one of those, O'Grady said, is to comply with requirements of the federal Voting Rights Act that the commission do nothing to dilute minority voting strength.
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O'Grady said that population differences exist for a variety of reasons.
One is that requirement under federal law that states do nothing to dilute minority voting strength. That means it cannot reduce the number of districts where minorities have a reasonable chance of selecting state representatives and senators of their own choosing.
She also said the 2000 ballot measure imposes other mandates on the commission, including creating as many politically competitive districts as possible. O'Grady said that, too, required some adjustment of district lines -- and populations.
Perhaps most significant, O'Grady said even if the commission drew the lines with partisan considerations, that is not a violation of federal law. [See Tennant v. Jefferson County Commission above.] And that, she said, means Cantelme cannot ask a federal court to void the maps.
Judge Roslyn Silver seemed to agree. She said the U.S. Supreme Court has given "great deference'' to legislative bodies in redistricting -- and that partisanship is "inevitable.''
But Neil Wake, another judge on the panel, said it appears that the commission could have met its other goals without the adjustments in district population that Cantelme said has created the unfair situation for Republicans.
Silver said if the court allows Cantelme to pursue his case, the trial must be held no later than March 25. She said that provides enough time for the commission to have the required public hearings and draw new maps if the court finds the current ones legally flawed.
Mary O'Grady is correct. The AIRC is the quasi-legislative constitutional entity in Arizona that has jurisdiction over redistricting, and thus has the legislative flexibility to comply with state and federal laws, such as the Voting Rights Act, which would permit variances in population to accomplish these competing objectives. (The U.S. Supreme Court has approved variances of up to ten percent in previous decisions).
Wednesday's hearing technically was on O'Grady's request for the court to throw out Cantelme's lawsuit [a Motion to Dismiss].
Steve Muratore from the Arizona Eagletarian, who was present in the courtroom, adds Redistricting -- Fed court hearing on Legislative District map:
Judge Silver announced a potential trial date of March 25, 2013 and gave a deadline of November 7 (2012) for counsel to submit proposed trial management plans. Then she said -- that is, unless we decide to grant the motion to dismiss.