Win or lose, a pair of lawsuits seeking to overturn maps drawn by the state’s redistricting commission may shed new light on accusations and unanswered questions that have dogged the panel for much of the past year.
Republican critics of the Arizona Independent Redistricting Commission have long accused the panel’s three-person majority — its two Democratic members and its independent chairwoman — of intentionally marginalizing Republicans and taking instructions from Democrats.
Critics of the IRC, including one of its own members, are hoping to elicit new information surrounding the hiring of a commission attorney, the selection of its mapping consultant and the drawing of its congressional and legislative maps.
Attorney Michael Liburdi, who is representing the plaintiffs suing the IRC, wouldn’t say whether he will attempt to call Democratic Commissioners José Herrera and Linda McNulty and independent Chairwoman Colleen Mathis to the witness stand or try to have them deposed.
The courts have ruled that the commissioners have legislative privilege, meaning they can’t be forced to testify about their official duties. Herrera, McNulty and Mathis refused to cooperate with a 2011 investigation into allegations that Mathis violated Arizona’s open meetings law, a decision upheld by a Maricopa County Superior Court judge.
But there may be other ways of gleaning the information Liburdi and the plaintiffs are seeking, including calling non-commissioners who were associated with the redistricting process to testify.
Liburdi said critics are justifiably suspicious of the commission, and he wants answers to questions about the hiring of the IRC’s attorneys, the selection of its mapping consultant and what he views as overt favoritism toward Democrats.
“These are the types of questions that the public has been asking since this process began, and the public hasn’t been given satisfactory answers by this commission. We intend to answer these questions,” Liburdi said.
Liburdi is a member of FAIR Trust, a group of attorneys and others that formed to represent Republican interests in the redistricting process.
The lawsuits recount a litany of allegations and conspiracy theories against the IRC, stemming from several controversial actions the panel took.
Herrera, Mathis and McNulty overruled GOP Commissioners Scott Freeman and Richard Stertz in the selection of the IRC’s Republican co-counsel. The trio hired Strategic Telemetry, a Washington, D.C. firm, as its mapping consultant, despite a lack of redistricting experience and long ties to Democratic candidates and causes.
Mathis drew the five Maricopa County-based congressional districts at home during a weekend, and the new competitive 9th Congressional District was created by McNulty. Some Republican critics accuse them of getting information or even whole maps from Democratic operatives.
During one meeting in late September, McNulty spent her hour-long lunch break conferring over a laptop computer with D.J. Quinlan, who at the time worked for the Arizona Democratic Party and attended most IRC meetings.
When the commission reconvened, McNulty provided a rationale for CD9, which Republicans have frequently maligned as a concoction intended to give Democrats a chance of electing another congressman in the Phoenix metro area.
Freeman wouldn’t comment on whether he believes Mathis’ and McNulty’s explanations for how they drew the districts that the IRC eventually passed. But he said he has concerns about who they communicated with and what information was conveyed to them.
“It seemed like to me there were text messages or emails that were being received (during meetings) and then acted upon,” Freeman said. “I don’t know what was being said. Maybe just idle pleasantries were being exchanged. Who knows?”
Freeman has no proof of his allegations.
The lawsuit also raises questions about the involvement of Chris Mathis, the chairwoman’s husband, whom the lawsuits refer to as the un-appointed “sixth commissioner.” Chris, who served as treasurer for a Democratic legislative campaign in 2010, was a regular fixture at IRC meetings.
David Cantelme, a FAIR Trust attorney who attended numerous IRC meetings, said he expects the three commissioners to invoke legislative privilege if called to testify. But he’s hoping there are exceptions to that immunity, and said information may be gleaned if non-commissioners who may have influenced the process are called to testify.
“You would learn, I think … whether or not the Democratic Party was feeding maps to the Democrat commissioners. I don’t know that for a fact. I certainly have my suspicions based upon what I saw in the hearing rooms,” said Cantelme, who is part of FAIR Trust but is not part of the lawsuits.
IRC attorney Mary O’Grady said the courts have recognized that legislative privilege extends to redistricting commissioners because they are exercising a legislative function.
Jose de Jesus Rivera, who served as counsel to the first IRC, said the commissioners cannot be compelled to testify or give depositions. But he said it’s possible that legislative privilege might not extend to all communications the commissioners had with third parties, outside of official meetings or duties.
Herrera, Mathis and McNulty did not respond to messages and emails from the Arizona Capitol Times for this story.
Then-Arizona Democratic Party Chairman Andrei Cherny, Chris Mathis and Quinlan, who now serves as campaign chairman for Democratic Sen. David Schapira’s congressional campaign, also did not return calls.
Cherny and Schapira, the lawmaker who appointed McNulty to the IRC, are both running for the Democratic nomination in CD9. Schapira said his appointment of McNulty and his candidacy in CD9 are a coincidence.
IRC Executive Director Ray Bladine said all questions regarding the lawsuit, including the allegations against the commissioners, should be directed to the commission’s attorneys.
“It is my understanding that the questions about the allegations are what the attorneys want resolved through the legal process,” Bladine said.
O’Grady did not address the allegations, other than to say the commissioners hired Strategic Telemetry under their constitutional authority because they thought it was the best firm for the job. She added that the commissioners received input in public meetings from politically diverse residents from across the state, and acted on it in ways they thought best met the constitutional redistricting criteria and served the interests of the people of Arizona.
Stertz, a frequent critic of Herrera, Mathis and McNulty, also did not return calls seeking comment on the lawsuit or the allegations against the IRC.
Luis Heredia, executive director of the Arizona Democratic Party, said the party never gave any maps or instructions to any commissioners, and accused Republicans of using multiple lawsuits against the IRC as a distraction. He also disputed the notion that the maps benefitted Democrats.
“The role of the party was exactly what we set out to do, which was remain a watchdog throughout the process,” Heredia said.
Strategic Telemetry President Ken Strasma said no one besides Mathis and members of his firm were at Mathis’ house when she drew Maricopa County’s congressional districts. He also said his firm never had any communications with operatives from either party.
Strasma refuted the myriad allegations surrounding the IRC, including many including involving Strategic Telemetry. If called to the witness stand in the lawsuits, he said he will testify.
“There were so many ridiculous accusations thrown around in this process. Nothing ever came of any of them. I’m sure we haven’t seen the end of baseless accusations and I’m sure they will all prove as baseless as the earlier ones,” Strasma said.
While Herrera, Mathis and McNulty refused to cooperate with Attorney General Tom Horne’s 2011 open meeting law investigation — Maricopa County Attorney Bill Montgomery is appealing the ruling that the law does not apply to the IRC — Freeman and Stertz gave depositions in the case.
The two Republican commissioners alleged that Mathis called them outside of meetings to urge them to support the hiring of Strategic Telemetry, and that Mathis destroyed an initial round of scoring sheets on the four firms that applied for the job.
Freeman said he is suspicious of the fact that Herrera, Mathis and McNulty all gave perfect scores to Strategic Telemetry, and wants to know why they seemed so determined to hire the firm.
One lawsuit alleges that the IRC’s legislative map violates the Fourteenth Amendment because the commission “systematically” under populated Democratic districts and overpopulated Republican districts to give Democrats an advantage. The suit argues that the population deviations were managed in a way to give Democrats, the minority party, a dominant advantage in more districts that they deserved, based on Arizona’s voter registration numbers.
The other suit alleges that the IRC’s congressional map violates a provision in the Arizona Constitution requiring the commission to base districts on a “grid map” that’s used as a starting point.