A U.S. District Court judge has sent a lawsuit over Arizona’s legislative and congressional districts back to Maricopa County Superior Court, and that could mean district boundaries used in 2002 could change for the 2004 election.

In another aspect of the redistricting case, the Arizona Court of Appeals ruled 3-0 on Sept. 16 that the Arizona Independent Redistricting Commission, which is charged under the state Constitution with drawing political boundaries every 10 years after the U.S. Census, must surrender certain documents it has refused to release to Democrats and others who have challenged the fairness of the districts drawn up in 2002.

On Sept. 12, Judge Roslyn Silver of the U.S. District Court for Arizona ruled that issues at stake in the lawsuit center on the Arizona Constitution, not federal statutory or constitutional law, and therefore must be heard in state court.

That means the lawsuit is now back where it began, before Judge Kenneth Fields of the Maricopa County Superior Court. The case will be heard at 9 a.m. Nov. 12.

Democrats and some members of minority groups contend that the Independent Redistricting Commission in 2002 failed to make enough legislative and congressional districts competitive between the two major political parties. Critics of the boundaries argue that the GOP has a 6 percentage-point edge in voter registrations over the Democratic Party, but Republicans ended up winning six of the eight congressional seats in 2002. The Republicans also have a 39-20 majority in the state House of Representatives (with one independent) and a 17-13 majority in the state Senate.

Article IV, Part 2, Section 1.F. of the Arizona Constitution states, “to the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.”

2004 Election

Neil Wake, an attorney for the Arizonans for Fair/Legal Redistricting, an intervenor in the case, said that setting the case for trial in November means district boundaries probably won’t be settled for the 2004 election. Given the likelihood of appeals whichever way the trial court rules, the Independent Redistricting Commission would have to formally adopt any changes in the boundaries as mandated by the courts, and then would have to submit those district lines for approval by the U.S. Department of Justice, Mr. Wake said. Federal approval is required under the U.S. Voting Rights Act because Arizona is one of several states deemed to have a history of discrimination against minorities in elections.

‘Legislative Privilege’

Arizona voters approved creation of the Independent Redistricting Commission in 2000 as a ballot measure, which won on the premise that the redistricting process had become too political in the hands of state legislators, who had previously drawn district lines.

Although the Independent Redistricting Commission is separate from the Legislature, it is still performing a legislative-like duty and therefore has a “legislative privilege” that provides a degree of confidentiality to its decision-making, as do legislators, the state Court of Appeals ruled in an appeal filed by several critics of the 2002 district boundaries. Paul Eckstein, an attorney representing one of several plaintiffs in the case, argued that numerous e-mails and other documents exchanged between the Redistricting Commission and its consulting firm, National Demographics Corp., should be made available to the plaintiffs.

Presiding Judge Ann A. Scott Timmer of the Court of Appeals wrote for the 3-0 majority that the Redistricting Commission indeed does have legislative privilege, but then decided that the privilege had been waived when the commission decided to use its consultants as expert witnesses. Judges G. Murray Snow and Sheldon H. Weisberg joined Judge Timmer in the unanimous decision.

The lawsuit over the district boundaries before Judge Fields is case no. CV2002-004380. The special action that decided the issue of legislative privilege for the Redistricting Commission is 1 CA-SA 03-0085. —