By Tony Sissons, Research Advisory Services, Inc., Phoenix and Bruce Adelson, Federal Compliance Consulting, LLC, Maryland, for the Arizona Capitol Times
Arizona’s legislative districts map received its final OK from the Arizona Supreme Court in May, 2009 – eight years after the Arizona Independent Redistricting Commission started the mapping process. The Supreme Court decided primarily in the Commission’s favor, citing some procedural errors, but declining to order a new map. Recent news articles, including an analysis in the Arizona Capitol Times, have speculated about the ruling’s effect on the work of the next redistricting commission.
Those articles, however, have not given proper weight to the court’s finding that the goal of creating politically competitive districts is as important as each of the other constitutionally required redistricting goals. In the Court’s words:
“The direction that competitiveness should be favored unless one of two conditions occurs does not, contrary to the Commission’s assertion, mean that the competitiveness goal is less mandatory than the other goals, can be ignored, or should be relegated to a secondary role. The constitutional language means what it says: The Commission should favor creating more competitive districts to the extent practicable when doing so does not cause significant detriment to the other goals.”
‘(Not) practicable’ and ‘caus(ing) significant detriment’ are the two conditions to which the Court refers in that paragraph. Practicable means ‘able to be put into practice’. It does not mean practical, or ‘if it suits our purpose’.
Anyone still on the fence as to what the Court really means can look to the largely concurring separate opinion of Justice Andrew Hurwitz in which he states that the Arizona Constitution requires the Commission to consider all six of the redistricting goals (including competitiveness) at the first moment that any of the goals are considered. That moment would occur after the Commission’s adoption and publishing of the ‘grid map’ which initiates the mapping process.
In addition to the Arizona Supreme Court’s admonitions about how state law governs the redistricting process, it is federal law, especially the Voting Rights Act of 1965, the U.S. Constitution, and relevant U.S. Supreme Court decisions that, in our legal system, can take precedence. Indeed, since Arizona must submit all voting changes, including redistricting, to Washington, D.C., for approval, it is incumbent upon Arizona officials to “get it right” while navigating through the complex and mysterious federal regulations that govern the approval process. In part, it was these regulations and procedures that tripped up the 2002 statewide redistricting plan that the Department of Justice rejected.
Opponents of competitive districts claim that creation of minority‐race or ethnicity districts to satisfy the Voting Rights Act absorb so many Democrats that very few are left over to create competitive districts.
The argument lacks foundation. Large swaths of affluent residential areas in northeast Phoenix, the East Valley and northern Pima County place high concentrations of Republicans in districts that cannot be made more competitive. When the Democrat‐heavy minority districts, and almost as many unable‐to-be‐competitive Republican districts are excluded, the remaining areas, 15 or 16 districts‐worth, have a registration ratio almost the same as the state as a whole. Within those areas, at least a dozen competitive districts can be drawn.
The Supreme Court has given the next Arizona Independent Redistricting Commission unequivocal direction on how it must incorporate the goal of competitiveness into the redistricting process. That direction clarified the goal’s importance and stated when, in the process, competitiveness must first be considered. The Court ruling does not hamper the next Commission’s freedom to decide how many competitive districts to draw, how it should decide whether a competitive district is practicable, or how it measures the extent to which the shape of a district might be detrimental to other redistricting goals.
Whether Arizona will have more, or fewer, competitive districts after the 2010 Census depends upon how the appointed new Commissioners see their responsibilities and how they also work to satisfy federal requirements.
After the 1990 and 2000 Census, federal officials rejected Arizona’s redistrictings. Will the new Commission avoid a third rejection by the feds? Will the Commissioners feel strong allegiance to the four political caucus leaders who appointed them, or will they favor Arizona’s three million registered voters?
Tony Sissons has drawn 17 redistricting plans, including Phoenix Council Districts. Each plan was precleared by the U. S. Department of Justice on first submittal.
During Bruce Adelson’s career with the U. S. Department of Justice, he was responsible for much voting rights law enforcement in Arizona at the state and local level. In particular, he was team leader for Justice’s review of the Arizona Redistricting Commission’s statewide legislative and Congressional plans following the 2000 Census.
(Originally published in the Arizona Capitol Times, October 22, 2009)