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Critics say partisan fights take new shape in ‘independent’ redistricting

(Graphic by Gabe Turner/Arizona Capitol Times)

(Graphic by Gabe Turner/Arizona Capitol Times)

Placing the “I” word in front of Redistricting Commission doesn’t mean it’s really independent.

And the five commissioners — Democrats Linda McNulty and José Herrera, Republicans Richard Stertz and Scott Freeman and independent chairwoman Colleen Mathis — who soon will begin redrawing the state’s legislative and congressional district boundaries, are about to find out that politics, like desert sand in the summer winds, infiltrates everything, no matter what adjective modifies their group.

Politics, of course, is mobilization and persuasion, the handshakes, backslaps and wagging fingers in the opponent’s face. But the seeds of politics are in the unlikeliest of places: on a piece of paper. For it is the mission of the IRC, written in the Arizona Constitution, to satisfy six standards of electoral theory, and two of them are on a collision course: “communities of interest” and “competitive districts.”

Already, Hispanic activists across the state have launched an official campaign to demand the IRC respect its communities of interest. At the same time, the Arizona Democratic Party is mobilizing a statewide effort to organize behind a call for competitive districts.

Representatives from both organizations say Republican partisans and conservative activists will inevitably join the fray with just as much enthusiasm.

Jennifer Steen, a political science professor at Arizona State University who studies redistricting, said it would be naive to think politics as usual won’t work its way into this process.

Look back 10 years, she said, to when Arizona took the job of redrawing districts away from the Legislature and handed it to a redistricting commission. Steen said that in spite of appearing less partisan, the new IRC system just created new ways for partisan politics to creep in.

And Sen. Steve Gallardo, D-Phoenix, who is helping to lead the group of Hispanic activists, said the first independent redistricting effort was a pale forerunner to the politics that will be practiced this time.

“Ten years ago people were on the sidelines,” Gallardo said of the normally active political groups. “Now everyone knows how it works. People are going to be getting involved from the get-go. Both political parties. Every city and town out there. The inter-tribal council. Native Americans. They’re all going to be very active.”

Warnings like Gallardo’s are what lead critics to dispute that redistricting can ever be independent.

One of those critics is Kurt Davis, a Phoenix political consultant and longtime Republican operative who served as executive director of the Arizona Republican Party in the late 1980s.

“You can’t take the politics out of (redistricting),” Davis said. “People just need to accept that.”

Steen said that separating the redistricting from legislators may cut down on partisanship, but it does nothing to eliminate politics.

That was clear this year, she said, when House Speaker Kirk Adams and Senate President Russell Pearce challenged the eligibility of several IRC nominees who were approved by the Commission on Appellate Court Appointments. Among those whose eligibility they challenged was independent nominee Paul Bender, an ASU law professor who was viewed as a liberal, despite not registering with any political party.

Steen said she expected that sort of partisan jockeying to take place during the commission-formation part of the process. She added that although the IRC system theoretically removes party power plays from redistricting, such challenges are practical ways for legislators to assert themselves and gain some edge during the process.

The Arizona Supreme Court rejected the challenge to Bender’s eligibility, but the issue evaporated on March 1, when the four partisan IRC members selected independent Mathis to serve as chairwoman.

GOP political consultant Davis said the way political players will entangle themselves in the IRC’s process is easy to predict.

First, he said, there will be fights within the parties over whom to appoint to each of the parties’ two slots on the commission. Then public fights can erupt over the independent chairman nominees, as was seen with the Republicans and Bender. These first parts of the process have already happened, Davis said.

Now, Davis said people who have one interest group in mind will begin to make public complaints about how to prioritize the six constitutional goals the IRC must abide by. The “communities of interest” goal in the Constitution can be used to create safe districts that cater to a political party, a city, an area where retirees are clustered, or a group like Gallardo’s Arizona Minority Coalition For Fair Redistricting.

The Constitution requires that the IRC attempt to “respect ‘communities of interest,’ as much as practical,” along with several other goals, including making districts compact and competitive. “Communities of interest” are defined by some subjective or qualitative identity, and they’re usually advocated for by the group itself.

Bart Turner, co-author of Prop. 106 and co-chair of its campaign, said the concept and verbiage of “communities of interest” spelled out in the IRC’s rules came from Sandra Day O’Connor’s opinion in a 1996 U.S. Supreme Court decision clarifying what constituted gerrymandering in a disputed Texas case.

The way partisans or political activists can use that standard is easy to anticipate, Davis said.

For instance, residents of the historic neighborhoods in central Phoenix’s LD-15 could form a group advocating that their shared identity needs to be represented with one legislative district, as it is now. But that also means they’d be advocating for a very safe district for Democrats, because registered Democrats happen to outnumber registered Republicans 2-to-1 in that area. So by asking the IRC to consider the community of interest there, LD-15 they’re also gaming the district for Democrats.

Gallardo said members of the Arizona Minority Coalition For Fair Redistricting have their sights set on a handful of districts around the state, and that they’re going to demand that the IRC create districts respecting the communities of interest that are bound by a minority-ethnicity identity.

“(Legislative) districts 13, 14, 16, 15 (all near central Phoenix) could be drawn as a strong minority district. Tucson and Yuma,” Gallardo said, “all have large minority populations.”

Lisa Hauser, the attorney who defended Arizona’s first IRC against the spate of lawsuits that attacked its districts, said it’s important to note that there is no precise definition to what “communities of interest” means, and that different communities could want different consideration.

“Sometimes their interest is in being separated,” Hauser said. “For example, Indian Tribes can collectively be a community of interest, or they could want to be considered separate communities of interest.”

So while groups are beginning to mobilize on behalf of their communities of interest, the state’s Democratic Party this month launched a campaign aimed at achieving more adherence to another of the IRC’s goals, “competitiveness.” The districts Democrats want more of, in which one party doesn’t have an assured victory every two years, conflict with the sort of districts Gallardo describes, in which Hispanics make up more than 50 percent – not only of the population, but also of voting-age residents or registered voters.

“Population,” Gallardo said, “isn’t enough.”

Luis Heredia, executive director of the state Democratic Party, said his party’s campaign for districts that look far different from Gallardo’s ideal strives for something very simple: districts in which one party doesn’t dominate elections.

“The state is about one-third Democrat, one-third Republican, and one-third independent,” Heredia said. “But what we see at the Capitol and in our congressional representation is far from that.”

So the Democratic party on March 4 launched the Drawing a New Arizona project, which will advocate to the IRC for districts in which the parties are more equally pitted against one another.

Steen said the Democratic Party, as the minority party, benefits by focusing its redistricting efforts on increasing competitiveness.

One proposal would have the north end of the handily Democratic LD-15 swept into LD-11 just to the north and east. That would presumably benefit Democratic candidates in LD-11, and still leave LD-15 a likely Democratic win, all while “increasing competitiveness” in LD-11.

If several such strategic shifts are made around the state, far fewer of the districts would be safe for Republicans, leading to a loosened grip on the state’s policy agenda.

Having Hispanic activists pitted against the state Democratic Party on the issue of which of the IRC’s goals should be promoted above the others shows how the complex issue of redistricting can split a usual alliance.

The issue of competitiveness is perhaps the most contentious point in contemporary redistricting, Steen said, and it was the issue most responsible for keeping Arizona’s first IRC locked in court battles for several years.

Steve Lynn, the independent chairman of the last IRC, said he’s heard the complaints – mostly from Democrats – that the legislative districts his group drew include only four to six truly competitive districts out of 30.

“But I don’t buy it,” Lynn said. “Our record shows that more than a third were competitive, depending on your definition of competitive. I don’t think they know it, or they reject it because it doesn’t serve their interests.”

To back up his claim, Lynn pointed to the fact that 13 of the state’s 30 legislative districts have been represented by more than one party during the past 10 years.

The last part of Davis’ prediction is that groups will begin to submit their own maps to the IRC. Davis said he expects that type of action closer to the end of the IRC’s process, perhaps in mid-summer.

The alternative maps will be justified with one of the IRC’s enumerated goals, Davis said, but similar to advocating one goal over another, the alternative maps will have entrenched partisan divides built in.

Hauser, who defended the IRC during the past 10-year cycle, said she couldn’t predict whether the new IRC will face legal scrutiny similar to what was seen applied to the first IRC and the way people perceived the politically motivated or politically independent calculations they made.

Hauser said she is optimistic that the decisions that came from those cases have clarified parts of the way the IRC will operate.

“(Lawsuits) were heard and decisions were made for the benefit of the next commission,” Hauser said. “We have good case law, but is it possible that there might be things that would come up this time that are new or different, or not addressed in the last go around? It’s always possible.”

Colleen Mathis confers with former IRC chairman Steve Lynn before the commission announces her appointment as the new chairwoman. (Photo by Evan Wyloge/Arizona Capitol Times)

Colleen Mathis confers with former IRC chairman Steve Lynn before the commission announces her appointment as the new chairwoman. (Photo by Evan Wyloge/Arizona Capitol Times)

Redistricting rebooted: The IRC’s inception and track record

Jennifer Steen, a political science professor at Arizona State University who studies redistricting, says the IRC is an improvement over the old system in at least one respect.

“It seemed to be a less partisan process,” Steen said, before hedging on the idea of independence. “But some people say it was really a wolf in sheep’s clothing”

For the vast majority of the state’s history, Arizona’s legislative and congressional districts were drawn by legislators every decade. But in 2000, well-financed liberal organizations were able to place Proposition 106 on the ballot through a citizens’ initiative in an effort to remove redistricting from the hands of the Republican-controlled Legislature. The measure, which was approved by voters, scrapped the idea of letting legislators draw the lines and instead created the Independent Redistricting Commission.

Supporters of the effort praised the idea of creating a group of non-elected redistricting commissioners as a way to eliminate partisanship and the “ultimate conflict of interest,” as former Attorney General Grant Woods at the time referred to the ability to redraw one’s own district.

Prop. 106 established the five-member IRC and set up the process by which its members would be appointed. Republican and Democratic leaders in the state House of Representatives and Senate each appoint one member, then those four members select a registered independent, who chairs the commission. The ballot measure also set up a set of criteria the new districts were to meet.

But Arizona’s first IRC didn’t turn out to be the pain-free, kumbaya sing-along that some had envisioned. The group ended up having to defend its districts in federal court for years, and has been hounded by Democrats who have complained that the commission’s boundaries delivered more safe districts to already dominant legislative Republicans.

Steve Lynn, who served as the chairman of the first IRC, stands by the work his commission did, pointing out the systemic improvement of an independent commission and the fact that the current districts withstood the several lawsuits brought to bear against them.

“I’m quite proud of the districts we drew,” Lynn said. “Since 1912, every set of maps was ultimately redrawn by a court somewhere because of litigation. Ours weren’t.”

The old system invariably led to some amount of gerrymandering during each redistricting process, Lynn said. So as long as the commission follows the laws guiding its actions, he said having a commission independent of the Legislature will always be an improvement.

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