>> Michael Grant: It's Friday, October 21, 2005. In the headlines this week, Arizona Court of Appeals issuing its long-awaited decision about redistricting overturning a ruling from a Maricopa superior court judge. Attorney General Terry Goddard has gone to court to have state representative David Burnell Smith removed from office. And trees damaged in the 2002 Rodeo-Chediski fire will be used for a wood burning power plant near Snowflake. That's next on "Horizon."
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>> Michael Grant: Good evening, I'm Michael Grant. This is the Journalists' Roundtable. Joining me to talk about these and other stories are Chip Scutari of the "Arizona Republic." Howie Fischer of "Capitol Media Services." And Bob Robb of the "Arizona Republic." With the 2006 election looming, the Arizona Court of Appeals issued its ruling on which set of Arizona district lines could be used. A previous decision by Maricopa superior court Judge Ken Fields was overturned by the Court of Appeals. Chip, what did the judges say about that?
>> Chip Scutari: Well, Michael Grant that happened Friday. I start on that happy note. I'll let Howie deal with the legal nuances of redistricting. It was a big blow to the Democratic party. The Court of Appeals said competitive, while voters thought they were getting more competitive political districts -- they did that in 2000 -- that is subordinate to things like the federal Voting Rights Act and other key components of the independent redistricting law. The Democrats have to struggle. They will appeal to the Supreme Court, but this means that the Republicans have a solid lock on the State Capitol for probably until the end of the decade.
>> Howard Fischer: What's really interesting about this -- talking about those fine legal issues -- remember, this was put on the ballot, largely at the behest of some Democrats and funded largely by Jim Petersen who is trying to get his own position in the U.S. senate. If there is a problem there, is it the people who crafted this basically outsmarted themselves. They listed things that this independent commission would have to consider. Comply with the Voting Rights Act. You are supposed to respect community interests. You are supposed to have districts of equal population, and then it said that the commission should, when practicable, make competitive districts to the extent that it doesn't harm the other goals. So by putting in all of that nice little verbiage in there, they went ahead and sent a message that, this is the least important thing. Now, Judge Fields, in the are superior court ruling said, no, I think that it really is co-equal. And the Court of Appeals said you cannot read the language that way.
>> Michael Grant: Bob, I know the Court of Appeals focused on the word "should" but placing that to one side, if you just read the way the thing was stacked up, it was fairly clear that competitive districts were last, and if you could squeeze them in up top side, fine, but what you needed to do was tend the top side.
>> Bob Robb: And the Court of Appeals decision is clear on the point. It says this is a subordinate goal, which directly contradicts and overrules what Fields ordered. I think this decision may have saved the Democrats from yet again another unintended consequence of reform, because if you look at the additional districts that would have been brought into play under the Democrats' alternative map, an equal number of Democratic seats were brought into play as Republican seats. And given that Republicans tend to turn out in greater numbers, particularly in non-presidential elections, I actually think if the Democratic map were to be adopted, it would make the Republican goal of a veto-proof legislature, closer at hand, if they could sweep those districts.
>> Michael Grant: Here's your headline for tomorrow, Chip, "Court of Appeals saves Democratic party."
>> Chip Scutari: Well, I think Democrats just want a shot. That's what they are praying for. Now, they just know these districts are so gerrymandered, so heavily favorable to Republicans, I think to they would take bob's chance.
>> Bob Robb: Enter not gerrymandered. In Arizona because of the political demography, you would have to gerrymander to create enough competitive districts in the context of the Voting Rights Act in order to give the Democrats a shot.
>> Howard Fischer: That's the key, the Voting Rights Act. Because the fact is the voting edge of Republicans over Democrats is only five or six points. There is a lot of independents, probably a quarter of the voters that way. So if you look at a five to six point lead and assuming the independents evenly split along the same lines, you would have 35 hours members who were Republicans and 25 Democrats. It hasn't worked out that way. So it's not gerrymandered in the political since, but in fact they did draw lines that did create a lot of safe and safe Democratic and safe Hispanic districts.
>> Bob Robb: Even though the state edge is 5\%, the distribution of Republicans and Democrats is not even across state. And even absent the Voting Rights Act, the only place you can create truly competitive districts and respect communities of interest are in central Phoenix and central Tucson. You are only going to have a handful under any circumstances that are truly competitive.
>> Chip Scutari: When people call these districts "gerrymandered" they'll say look at the State of Arizona and look at the State Capitol. The point Howie was making. There is no way we should have 40 Republicans in the house and nearly 20 in the senate, because it doesn't match the match-up of our state. That's why I think people assume that these districts are gerrymandered.
>> Bob Robb: Statewide offices have no districts, and except for two, the Republicans control them all. They have a --
>> Howie Fischer: I know, that pesky's Governor's race.
>> Michael Grant: Governor and the AG.
>> Howie Fischer: That doesn't mean Paul Eckstein who represents them won't appeal. His position is if nothing else that even assuming you accept the Court of Appeals ruling, that the commission could have created competitive districts without harming the other goals, and he will certainly be taking that to the Supreme Court.
>> Michael Grant: Yes, but -- does could have mean should have?
>> Howard Fischer: That's one of the issues. The courts have given great deference, not only in our state, but federally to the decisions made on redistricting. They really don't like getting in there and drawing maps themselves.
>> Bob Robb: In addition to saying that competitiveness is a subordinate goal, the most important ruling was the standard of review that the Court is going to use in deciding whether to validate the maps or not. And just having a better map under the Court of Appeals decision isn't enough. You have to prove that there wasn't a reasonable basis for the commissions. If there is a reasonable basis, you have to uphold it. I find it very doubtful that this Supreme Court will want to deal with this issue at this point in time. You've got a well-reasoned, well written decision on the two important points of law, I don't think this Court will be in disagreement with it. And you've got two state Supreme Court Justices up for retention this election, and I don't think they want to take on any more political hot potatoes than they have to.
>> Michael Grant: You know, Bob, interestingly enough, the point that you make there about, you know, the commission just needs to have a reasonable basis, it doesn't have to be the right one in the court's opinion, just a justifiable one, is probably the holding of the Court that has most impacted on a going-forward basis when God for bid we have to repeat this in 2010 and wrap it up around 2016.
>> Howard Fischer: Eckstein is going to argue that we need a strict scrutiny standard because we are affecting voting rights. What the court said is we're not affecting anybody's rights to vote. Nobody is being told they can't vote. We are at least peripherally affecting voting rights to the extent that some people vote darn if you are a Democrat in a largely Republican district, do you count any more? And Eckstein will make the argument that you need that higher standard.
>> Chip Scutari: I'm glad that the independent commission took the politics out of redistricting. I'm glad about that.
>> Bob Robb: We have a state Supreme Court with a lot of practical experience in government, and I think those Justices will be very reluctant to apply or to expand the range of government actions that are subject to strict scrutiny.
>> Michael Grant: You know, a lot of talk in the wake of the opinion about a veto-proof legislature for the Republicans, but Chip, I wonder, sometimes, if we don't overstate that. It was only a couple of years ago when Republicans had, you know, 17 votes in the senate and last time I checked, they didn't exactly pass the Republican budget. I don't know, what do you think?
>> Chip Scutari: Well, if you are a diehard Republican, I know who you are referring to, you might have called two of those votes as RINOs. Former Senator Linda Binder and former Senator Slade Mead who favored the Governor on most issues. With the advent of Clean Elections, social conservatives have embraced public financing, there is going to be a lot more of these conservative types running for the state house, and they will get close to 20 and 40 in the house and there will be different type Republicans, hard core Republicans.
>> Howard Fischer: What's going to be interesting, is you can't assume just because the Republicans will vote to override the Governor. On certain financial issues, true. I've got a Carolyn Allen. While she voted with her party on the budget stuff says some of these social issues the abortion issue, the gay marriage issue, she said why are we -- if we believe in Republican principles, less government, were are we imposing more restrictions? Getting 20 senators doesn't do it.
>> Michael Grant: Bob, you have been watching the process a lot longer than I have.
>> Bob Robb: A dubious contention.
>> Michael Grant: Sometimes the luxury of the additional votes actually turns out to be a curse, because people will say, well, you really don't need my vote, and I'll put two or three together and it just doesn't work out that way. It's not a cohesive block.
>> Bob Robb: When you've got small numbers, you can argue that you need everybody and so you need to give up what you would prefer.
>> Michael Grant: Hang together or hang separately.
>> Bob Robb: When you have the luxury of broader numbers, it becomes more difficult, but in general, I think leadership will prefer the challenge of larger numbers to small numbers. The house hasn't seen to -- in fact, the house has seemed to benefited from both their larger numbers and the more social cohesion among the social conservatives there. There really wasn't the problem in the house in moving legislation this session that there was prior to the last election, where a large number of more moderate Republicans got ousted in primaries.
>> Michael Grant: I was going to say partly as a result of party discipline applied during the voting process.
>> Chip Scutari: I think what Democrats are fearful of though, with the veto proof legislatures, there is be one Democrat who will go against the Democrat, that's the fear. I don't know if it will happen.
>> Howard Fischer: Cheryl Chase has already switched parties, too late.
>> Michael Grant: Let's move to the other second major political development of the week and that's Attorney General Terry Goddard bringing a court action to oust representative David Burnell Smith.
>> Howard Fischer: Well, the funny thing was, I had thought they would wait for some outside group to bring what they call a quo oranto which says you are holding office illegally. But what happened is David Burnell Smith, as you know, the commission had ruled the Clean Elections Commission said you had overspent by more than 10\%. He asked to send it back to a hearing officer and on October 4th they said no. Now, the law says you've got 14 day to his appeal, take that to superior court. Well, come October 18th, no appeal. So here's the attorney general saying, well, I guess that means he doesn't want that office, and so he went to court.
>>> Howard Fischer: Now, Smith's argument is, well, you're right, I didn't technically appeal the October 4th decision, but I had sued back in September, challenging the legal authority of the commission, the constitutional authority of the commission to review. Now, maybe he's right on that that there will be a constitutional challenge, but if the underlying facts of did he overspend had been CEDED and if in fact he cannot bring that up and we're down to the constitutional question of can you automatically be removed from office for overspending.
>> Michael Grant: Howie, it's an important aspect of the case, because as we have discussed previously on the show, I mean, if your gambit is to buy yourself time until -- I don't know, hypothetically November of next year -- then not having those facts in dispute and reducing this to pure questions of law that the courts can decide, obviously, makes this move along much more quickly.
>> Howard Fischer: No question, if I'm the attorney general and we are down to questions of law, I ask the Supreme Court to accept jurisdiction, because normally the Supreme Court doesn't like getting into it if there are facts that need to be developed. If the only question is can this person be removed, even though he was elected, then it might as well go right to the Supreme Court because ultimately they will decide it the way they did the Tony west case and the Arizona Corporation Commission. Now, I happen to like my colleague Mr. Robb's theory here, which is that unlike an impeachment, there is no dracula clause. There is nothing that says you cannot be reelected. Okay, so we thought maybe he will run for reelection next year, but bob pointed out that the nature of filling vague can seize is the precinct committeemen get together in the district, Republicans, and decide who they want. Well, let's see, do they like Mr. Smith? What if they reappoint him through the Board of Supervisors? Can he hold office? And it left all of us sitting around saying, oh, gee, I don't know. So why are we going through this if --
>> Michael Grant: Where's the Arizona Revised Statutes when you need it, but the theory is that that's possible. Bob, you think the Maricopa County -- I could see the precinct committeemen getting together and saying we'll just re-nominate David Burnell Smith, but you think the Board of Supervisors would go along?
>> Bob Robb: Assuming that it is permissible, and this is something that we have not checked out, I think there is a decent chance that they would. I mean, precinct committeemen, believe that the Clean Elections Commission has it out for Republicans. And I believe that within the party, assuming that this was an agreed upon strategy and the precinct committeemen wanted it, that those Republican members would be under intense pressure to, in essence, thumb their nose at the Clean Elections Commission.
>> Howard Fischer: Unless they think there is a better Republican. You have to remember, he is an attorney who might side with trial lawyers on certain issues. If somebody better comes along that they think would help the tort reform agenda, they'll say hey, here's our opportunity. I'm in agreement with you, if the committeemen come to you, they help you get your signatures, put up the yard signs do all of that work, you don't say, we know better.
>> Bob Robb: It will be broader than simply his district precinct committeemen. It's a widely held view that the commission is hostile towards Republicans, going back to the widespread confusion that existed over the allegations against Matt Salmon last time around.
>> Chip Scutari: David Burnell Smith admitted to overspending by that huge amount.
>> Michael Grant: Well, for 24 hours.
>> Howard Fischer: He took it back.
>> Chip Scutari: He signed pretty much a contract saying he would adhere to public financing under the Clean Elections regime. So I don't know, we're getting far afield here, but if he did what people say he did, he broke the law, and he cheated, he was running publicly and at the end he ran private, so he had public and private, so we're forgetting what he did here.
>> Howard Fischer: That goes to two issues. Number one, if in fact the constitution says the only way from removal from office is impeachment, et cetera, and this is -- the Clean Elections Commission is statutory there, may be an argument there. Now, did he knowingly waive those constitutional rights by saying I accept the Clean Elections money, therefore -- but that still doesn't get to the question -- to bob's theory to let's assume they kick him out, is he back the next day?
>> Michael Grant: An issue likely to be on next year's ballot is, of course, the ban on same-sex marriage. Republic polled on that this week and failed to ask the right question.
>> Chip Scutari: Bob will disagree with you, but the crux of this campaign is going to be -- everyone refers to it as the same sex marriage vote. The opponents of the measure of the protect marriage amendment.
>> Michael Grant: Protect marriage now.
>> Chip Scutari: Will say it's not just about same sex marriage but about preventing unmarried couples from getting domestic benefits. It's amazing. When you poll and say do you want to define marriage as one man, one woman to amend the Arizona constitution, it's a 60/40 yes vote. When you change it and say but it will affect domestic partner benefits it's 60/40 the other way. The key to this campaign is Steve may and the opposition, can they raise $3.5 million to do a nice TV ad saying hey, folks, this isn't about gay marriage, this will affect heterosexual couples?
>> Michael Grant: Bob, you don't think it drives that kind of 20, and you offer the 40-point swing?
>> Bob Robb: I do not believe that the issue of domestic partnerships causes a 40\% shift in public opinion on this very basic issue. Polling is an imprecise art. Even when it's done correctly, a tenth of the polls that you read have results statistically outside of the margin of error. I think what we're seeing here is that phenomenon. And that as the election progresses, we get more polls, we'll get a more accurate read, which I suspect is that on the basic proposition of limiting marriage to a man and a woman, there is a 60/40 support. When it becomes known that it also prohibits civil unions, I think that's a bigger issue than domestic partners. Because there is relatively few -- even in the cities that offer them, relatively few people are signing up for them.
>> Howard Fischer: Understood. This comes down to the question that occurs every two years. The answer to what happens is who gets to frame the question. And to the extent that Steve may and the gay community can phrase the question as civil unions, and in taking some domestic partners and putting them on TV and saying why would you put this second person on AHCCCS and have them become a burden of the state, then they can win. If this is about gay marriage, bob's right. The amendment passes.
>> Michael Grant: Let's face it, though, they had a remarkably successful run of framing the question in the last election cycle and 13, 15, 16, states on this issue?
>> Bob Robb: Right.
>> Michael Grant: A lot of states.
>> Bob Robb: More interesting than the poll results, which I believe that this isn't a 40\% swing on that issue, is the fact that there is now a split in the proponents' ranks as to whether the intent of the proposition is to abolish domestic partners.
>> Howard Fischer: This is a conscientious thing. Everyone that I talked to when they introduced it admitted that this affects benefits. What this comes down to is A the polling, and B, if it affects more than gay marriage they run into a single subject violation rule. You've got Nathan Poole saying I don't know if it --
>> Bob Robb: Nathan is the political consultant. He is reflecting the split of ranks that are within his coalition. I've talked to him, Howie. Some of them say that their intent was to do so, as you also confirmed in your -- and that it remains their intent. There is a group, united for Arizona, I think is the name of it, which has taken the position that the language doesn't do that. So, I think the proponents are going to have to at some point in time --
>> Michael Grant: Plan on a single story?
>> Bob Robb: Except proposition 200 would suggest that perhaps not. There was never a single story on what the effect of proposition 200 would be on illegal immigration, and it passed handsomely anyway.
>> Michael Grant: Let me touch on one other possible ballot initiative is Randy Pullen serious about the 65\% of education in the classroom thing?
>> Howard Fischer; Is he serious? Sure. Does his Republican colleagues think it is crafted well? No, this is politics pure and simple. Lawmakers will tell you this is poorly crafted. He wants to spend 65 cents of every dollar in the classroom until you realize what's not included in there. School buses, heating, cooling, librarians, guidance counselors. One of the things that superintendent Tom Horne pointed out the way you get to 635\%, you get rid of the librarian. That makes this badly crafted and flawed. There is plenty of money behind it certainly. There is a guy from Utah who runs a dotcom company.
>> Michael Grant: Federal government has agreed to guarantee a $16 million loan so a wood-burning power plant can be built in northern Arizona. Howie, it's going to use burned trees from the Rodeo-Chediski fire?
>> Howard Fischer: It's going to use three main sources. Number one, after Rodeo-Chediski, it left, and you saw the pictures at the top of the show, a lot of charred trees, but they are still there. These can be home to bark beetles. They become something that becomes tinder. So they are contracts, what they call salvage contracts, to clear this stuff how the out. This can be broken down into small wood chips and fed into a furnace. You can feed wood chips.
>>> Howard Fischer:
The second source is they have trees around what they call the wildland-urban interface, right around the communities, and the federal government has agreed and even some of the environmentalists have agreed that maybe you need to take out the smaller trees around that. The definition of smaller trees for some people is 16 inches and that's a fairly big small tree. And then the third source is there is a paper mill up there and you can only recycle this pulp so many times before you've got fiber you can't do anything else with. Their feeling is they will have enough there for 10 years to create a 20 megawatt plant. They've got firm contracts from SRP and APS to buy it. The fact is, wood burning fuel costs more than coal, natural gas or nuclear, in terms of what they call the bus bar costs, the costs actually at the plant, about 7-1/2 cents. But what's happened is the Corporation Commission has told the utilities, you will buy by 202515\% of your power from alternative sources and we will let you charge an extra $2 a month to your residential customers to go ahead and pay for it. So APS figures, well, heck, if we can pass on the higher costs, we don't concern paying more.
>> Michael Grant: Any concerns about no burn days if you get to run the plant?
>> Howard Fischer: The proponents insist that this will have no visible smoke that, it will meet all EPA standards and this will have scrubbers. This isn't like me burning logs in my earth stove. This has electrostatic recipatators and a bagging house and the whole routine. Theoretically you will get 97\% of pollutants.
>> Michael Grant: I want to ask you about a big chunk of change for the U of A med center downtown?
>> Bob Robb: The University of Arizona medical center had been feeling like sort of the poor second cousin because the City of Phoenix was proposing $230 million in its bond proposal for the ASU downtown campus, and the U of A was feeling like it was being told to take your tin cup down to the legislature and rattle it. Well, Phil Gordon dipped into a federal program in order to get some money to renovate some buildings to get it kicked off and then says he's got even larger satchels of federal money that he can dip into down the line.
>> Howie Fischer: It's good to be the mayor.
>> Michael Grant: Creative financing.
>> Bob Robb: The problem is it's to be paid back, at least the initial one, through lease payments, which means that they've still got to go down to the legislature and rattle the tin cup.
>> Michael Grant: All right, panelists, we're out of time. If you would like to see a transcript of tonight's program, visit the web site at www.azpbs.org, click on the word "Horizon." That will lead you to transcripts, links and information on upcoming shows.
>> Announcer: Coming soon to "Horizon," evacuation, quarantine, power and water loss. If disasters strikes Arizona, are state and federal agencies prepared? Learn how to protect yourself and your family in an Arizona disaster, a gripping week-long series beginnings Monday on channel 8's "Horizon."
>> Michael Grant: So please join us next week for what I predict will be a disastrous series of shows. Thank you for joining us on the Friday edition of "Horizon." Thank you very much. Have a great weekend. Good night.