Ted Simons: A federal court yesterday rejected a lawsuit challenging Arizona's legislative district map, the map had been targeted by Republicans who claim that the commission drew the new boundaries to favor Democrats. Jeremy Duda of the Arizona Capitol Times has been covering the story, Jeremy joins us right now. Good to see you, what exactly did this federal panel look at?
Jeremy Duda: Well what the federal panel looked at was whether or not the independent redistricting commission intentionally depopulated about a dozen legislative districts in order to give the Democrats an advantage in these races. It's 30 districts and they have on average a population of about 210,100, but the majority of the Republican districts are above average. The overwhelming majority of the democratic districts are below average. This group of Republican activists sued in federal court and said this was for discriminatory purposes, it was for partisan purposes, it was meant to hurt Republicans and give Democrats an edge.
Ted Simons: And thus violates equal protection for Republican voters.
Jeremy Duda: One person one vote yes, the principle stemming from the equal protection clause.
Ted Simons: When you say under populates certain districts that would by means overpopulating other districts, overpopulation those districts with Republicans correct?
Jeremy Duda: Packing the Republican -- basically moving the Republicans out of some of these other districts and packing them into neighboring districts. There's really three districts they are focusing on specifically, legislative district 8 down in eastern Pinal County area, district 24 in central Phoenix, district 26 mainly in Tempe.
Ted Simons: Alright so, that was the claim. That's what the plaintiffs were arguing. What did the court decide?
Jeremy Duda: The court decided that these districts can stand. There was a variety of reasoning among these three judges, it was a very split court. This three-judge panel, there's one judge who dissented and said he thought the maps should be redrawn. Two agreed they shouldn't but for somewhat different reasons. The main ruling what it said was, well, partisanship played some role. There were some partisan motivations for why they did this to some of these districts, but they said the predominant reason was to comply with the Voting Rights Act and more specifically section 5 of the Voting Rights Act which used to require Arizona to get approval or known as pre-clearance from the United States Department of Justice. Arizona had never actually gotten that on the first try for its redistricting map, so it was important for them to do that. As one of the judges said, because there's no real set criteria by DOJ, it really encourages them to kind of overshoot the mark, get as many majority-minority districts as possible.
Ted Simons: So basically partisanship did play a contributing factor but the panel considered it was not the primary factor?
Jeremy Duda: Yeah, they said the primary factor was a pre-clearance and Voting Rights Act compliance, which they said this was a legitimate purpose and this could stand.
Ted Simons: Okay, so I would imagine some would argue that a contributing factor is a factor nonetheless and that didn't belong in there at all, correct?
Jeremy Duda: Absolutely. Yeah, Judge Neil Wake who was the dissenting judge said clearly this was done with partisan motivation. Even complying with the Voting Rights Act is legitimate thing to do in redistricting, it’s a legitimate factor to use in redrawing the lines, but not in under-populated districts like that.
Ted Simons: It sounds like getting this pre-clearance from the Justice Department on the first try was a big deal. Why is it so important to get it on the first try?
Jeremy Duda: Couple of reasons. I think in part it's kind of a psychological factor. Then there's a more substantive factor, is that until the United States Supreme Court lifted the pre-clearance requirement last year there was a provision in the Voting Rights Act that allowed states and other jurisdictions to get what’s called a bailout, which means if you have a clean record for ten years, with no rejections or complaints from Department of Justice, you can petition the Feds to get that requirement lifted. You can do it you know at the city or county level, or the whole state if the whole state has a clean record. But if you get a complaint or a rejection of a redistricting map that would count that resets the clock for ten years. So that would have meant ten years hence forward you could not bailout, and I don’t think anyone else in the state would have been able to either.
Ted Simons: And now again, you mentioned 2-1 decision, variety of opinions here. It sounds as though one of the judges thought that the only criteria was going to be a partisanship. Another kind of had this primary-secondary kind of thing. Another judge you said dissenting opinion just throw the whole thing out here, you shouldn’t be doing this.
Jeremy Duda: Yeah, even among the two judges who formed the majority there was some disagreement. Judge Clifton said as long as the Voting Rights Act is the predominant reason, some partisanship was okay. They said partisanship was not the predominant reason. Judge Silver said, A, you have to show that partisanship was the only reason this was done, the sole and actual reason is how she put it, then she said, on top of that she didn't think the plaintiffs really properly demonstrated or established that a lot of these decisions were made for partisan reasons.
Ted Simons: And I would imagine those opinions are important, because the next time we go through this process, you don’t want a bunch of folks on the redistricting panel saying, oh we can do a little hedging and fudging here by way of partisanship, they need to have some sort of level, although again the next time they do this a lot has changed as far as the DOJ requirements.
Jeremy Duda: Yeah. Almost certainly the next time redistricting comes up we will still not be under section 5. Congress could theoretically reenact new requirements. I don't think anyone really expects that to happen. What could change, and this will almost certainly be appealed, and because it's a three-judge panel on a redistricting issue, that appeal will go straight to the United States Supreme Court. Depending which one of these judges they agreed with that could set serious precedent.
Ted Simons: Is that what you’re hearing, is that the likelihood, I mead what kind of reaction are we getting from the plaintiffs?
Jeremy Duda: I would be stunned if there was no appeal on this. They have been fighting this for two years and they really want to make this point, they really want to redraw these maps.
Ted Simons: They have been fighting two—13 months even after trial we finally get this decision, it’s a 2-1 mark here. Why so long?
Jeremy Duda: I think all of these disagreements probably shed some light on why it took so long. Part of it was that Supreme Court ruling last year on the pre-clearance issue came down over the summer and the judges came back and said we want all you guys to submit briefings on what, if any, impact that's going to have on this. That clearly persuaded Judge Wake, who said now that pre-clearance is not a factor we shouldn't be looking at this at all. It should be redrawn. On top of that even when you have the two judges in the majority disagreeing on so much it kind of indicates why it took so long. A few months ago a few us, I mean a few other reporters actually ran into Judge Silver at the courthouse and asked when the ruling was coming down. She said, well, you know, there's three judges.
Ted Simons: Yes, yes, she probably had her mind made up perhaps then. This now helps a lot in terms of statewide legislative races because it removes that uncertainty doesn't it?
Jeremy Duda: Yeah. Even if the court had ruled that some or all of these districts had to be redrawn, there probably isn't enough time to do that this year. We're so late, it’s less than a month now until candidates have to file their signatures to get on the ballot, some of them have already done so. So for this year, the lines probably would have been set but next year, or for the next election in 2016 who knows?
Ted Simons: I would imagine most state lawmakers have probably gone ahead with their plans I should say, with the current boundaries. If changes had to be made, so be it. But, I think it would be kind of wise to get on the ground running as soon as possible.
Jeremy Duda: Yeah, it would have been hard to get everything. You would have to call the commission back, they would have had to get all their work done in time within a very short time frame.
Ted Simons: Last question. This is one of many challenges to what the redistricting commission did regarding drawing political maps. I know that the congressional maps, that has been challenged. It seems like that's bottled up. What do we know about that and what do we know about the idea of a commission being challenged for doing this at all?
Jeremy Duda: Well there's two other lawsuits that are still outstanding. One you mentioned is in the superior court challenging the congressional districts. Basically that alleges that the independent redistricting commission did not properly follow the criteria that are set out in the Arizona constitution for how they are supposed to draw these. The last briefings in that were in August and we just haven't seen anything on that since then. It seems like it's really languishing and no one is really sure when it’s going to start moving forward again. The other one, this is a lawsuit filed by the legislature alleging that the independent redistricting commission actually lacks authority under the United States constitution to draw congressional districts, they say that the elections clause of the constitution guarantee those rights to the state legislature, and that when they say that they mean legislature. They lost that in Federal District Court. That's now being appealed to the Supreme Court.
Ted Simons: Alright so it's over, kind of sort of, at least for now.
Jeremy Duda: For Now.
Ted Simons: Jeremy great stuff good to have you.
Jeremy Duda: Thanks, Ted.