The future of Arizona’s legislative map is in the hands of three federal judges, who wrapped up four days of trial testimony March 28 and heard pointblank denials from Democrats that they gerrymandered the districts.
Attorneys for a group of Republican voters clearly established that a high-ranking Democratic Party official had significant contact with Democratic members of the Independent Redistricting Commission and one of the commissioners wasn’t forthcoming about it. Those actions on their own aren’t against the law, nor could they void the redistricting maps.
But attorneys for Republican voters sought to make their case on a totality of circumstances that lead to the conclusion of a rigged process. They offered an abundance of statistical data and the testimony of the Republican National Committee’s redistricting consultant, who said Democrats moved Hispanic voters into predominately white Democratic strongholds to shore up the vote. Republican commissioners said they felt their efforts were usurped by the Democrats and the independent chair of the commission.
The plaintiffs are asking the panel of judges—one appointed by a Democratic president and two by a Republican president — to void the map and order the commission to redraw it if the judges are convinced Republican voters were discriminated against.
Such a ruling has the potential to create an upheaval of the state’s electoral system at a time when many Republicans and Democrats are getting comfortable with their new districts.
The GOP lost its supermajority in the Legislature since the new map took effect and Democrats outnumber Republicans in the state’s congressional delegation. Democrats say the new maps simply reflect Arizona’s more diverse electorate.
A citizens’ initiative established the five-member redistricting commission in 2000 with the goal of increasing public input and transparency. As with states where Legislatures draw the maps, court challenges are a given. But courts typically show restraint in such cases and order districts to be redrawn only in the most egregious cases.
A court did issue such an order to Arizona’s commission after the 2001 redistricting.
One of three challenges
The trial that played out this week in U.S. District Court included four days of testimony and one day of questioning among judges is scheduled for March 29. It is just one of three challenges to the maps the commission created in 2011 for the rest of the decade.
The trial began as plaintiffs’ attorney David Cantelme declared that rumors of his case’s collapse have been greatly exaggerated. The commission’s attorneys, Cantelme said, were wrong to say he was still looking for a smoking gun as he requested more and more documents.
He said the release of new information revealed a new component to the Republican conspiracy theory: Imprisoned former lawmaker Richard Miranda, a Democrat from Tolleson, had drawn four districts that became part of the state’s legislative map.
Miranda has been in prison since July 2012 after being convicted of stealing money from a charity he ran. His name was mentioned only one other time during the trial, in the context of an email, and no evidence was presented that he did anything illegal in the redistricting process.
Miranda has for years been on the redistricting front and was associated with the Arizona Minority Coalition for Fair Redistricting, a group that brought a court challenge to the maps drawn by a previous commission.
Dropping Miranda’s name was consistent with the plaintiffs’ tactic of implying misconduct and then not confirming it through direct questioning of witnesses. Often, it was the defense counsel who asked the direct question on cross examination.
On March 26, the plaintiffs called Jose Herrera, a Democratic commissioner, to the stand. He characterized his relationship with D.J. Quinlan, Democratic Party executive director, as no more than an acquaintance who offers a friendly hello when they see each other.
Quinlan was the party’s election director when the maps were drawn. He testified that Democratic Commissioner Linda McNulty had sought his help in creating Legislative District 8, one of the districts Republicans have considered was gerrymandered. Herrera also said he wasn’t sure if the two had each other’s telephone numbers.
But plaintiffs’ attorney Michael Liburdi produced Quinlan’s phone records to show he and Herrera had 16 conversations from October 2011 to December 2011, when the commission was in the final stages of preparing the maps. Herrera then acknowledged the conversations, but said he couldn’t remember the nature of them.
The commission’s defense attorney, Colin Campbell, chose not to cross examine Herrera.
Cantelme’s examination of Quinlan included questions about his relationship with McNulty. Quinlan, who had admitted he had a file of incumbent addresses on map-making software on his office computer, said he met with McNulty five or six times at her office and home in Tucson and they did discuss LD 8, but only in general. There were also dozens of phone calls between the two.
Quinlan said on cross examination by the commission’s attorney, Mary O’Grady, he is not an expert on redistricting and offered only technical assistance to McNulty and never revealed the incumbent addresses to her.
Cantelme asked McNulty only six questions when she took the stand, never asking her about her relationship with Quinlan or how much influence he had on the mapmaking.
The Republican commissioners
The commission’s two Republicans, Richard Stertz and Scott Freeman, were also called to the stand, where each repeated complaints lodged previously. Republicans have said the commission’s chairwoman, Colleen Mathis, formed a voting alliance with the commission’s two Democrats.
Stertz and Freeman repeated complaints that she left out of her commission application that her husband had worked for a local Democrat’s campaign two years before the remapping. They also said she tried to organize a vote on a mapping consultant favorable to Democrats.
Little of the Republican conspiracy theory has changed since it was developed in 2011, except for the details about Richard Miranda and the records linking Quinlan with other Democrats and the Democratic commissioners.
Attorney General Tom Horne initially investigated whether Mathis may have violated a public records law, but the case fell flat after a judge ruled the commission’s private executive sessions out of bounds.
Hispanic votes at issue
Thomas Hofeller, a redistricting consultant with the Republican National Committee, spent almost a day on the witness stand. He testified that the commission “engaged in intentional, invidious dilution of Hispanic voter strength” by moving Hispanics into predominately non-Hispanic Democratic strongholds to strengthen those districts.
Campbell, the commission’s defense attorney, pointed out, however, that Hofeller’s two examples, Legislative Districts 9 and 10, actually had fewer Hispanic voters in the final, adopted version of the map than in previous proposed versions.
On March 27, the commission’s attorneys called Bruce Cain, a political science professor at Stanford and longtime redistricting expert, their first witness, to the stand. Cain offered explanations for how the commission’s mapping choices, especially those claimed as gerrymandering by Republicans, could be seen as rational ways to increase Voting Rights Act compliance without providing advantages to Democrats.
In one late change made to two districts in Pinal County, Democratic-leaning Hispanic portions of the heavily Republican LD11 were moved into the slightly Republican-leaning LD8 neighbor. That gave Democrats a bit of an edge in LD8, while still leaving LD11 a GOP stronghold.
While the Republicans’ attorneys have said the Democrats saw an opportunity to make one more Democratic-leaning district, and took it, Cain explained that this was one of the areas identified as a violation of Hispanic Voting Rights Act protections by the Justice Department in 2002. When they ordered the map redrawn in 2002, the ultimate solution was a district similar to the LD8 created this time.
Attorneys from each side of the case expressed optimism at publication.
Campbell said that since he sat as a judge for many years, he doesn’t recommend trying to read too much into any judge’s reactions or questions, which can reflect genuine sentiment or a devil’s advocacy.
Liburdi said he feels he’s gotten a fair trial, where all of the key elements can be laid out for the court to consider.
The judges, who will hear closing arguments on March 29, are expected to issue a written ruling.
Judges: Roslyn Silver, U.S. District Court in Phoenix, appointed by President Bill Clinton; Neil V. Wake, U.S. District Court Phoenix, appointed by George W. Bush; and Richard Clifton, 9th U.S. Circuit Court of Appeals, appointed by George W. Bush.
Plaintiffs’ Attorney: David Cantelme, who was part of a group formed with the assistance of Arizona’s GOP congressional delegation to advocate for Republican interests before the commission.
Defense Attorney: Colin Campbell, former Maricopa County Superior Court presiding judge who works for the law firm Osborn Maledon.
Linda McNulty: Democratic Commissioner who met several times with top Democratic strategist during key periods of the mapmaking.
Jose Herrera: Democratic Commissioner who acknowledged several phone conversations with the same strategist who met with McNulty.
Colleen Mathis: IRC chair, an independent who regularly sided with Democrats during the process and who Republicans say hid her Democratic ties during her selection.