GOP lawmakers don’t want the Arizona Supreme Court’s ruling reinstating Colleen Mathis to be the last word on the Arizona Independent Redistricting Commission.
Gov. Jan Brewer and the Legislature have a couple options if they want to call another special session – use the court’s ruling as a guide to remove Mathis, the commission’s independent chairwoman, in way that will withstand judicial scrutiny; or refer Proposition 106, the 2000 ballot initiative that created the IRC, back to the ballot.
In a stunning ruling on Thursday, the court ruled that a Nov. 1 letter from acting-Gov. Ken Bennett – written at Brewer’s behest – informing Mathis of the decision to remove her did not show “substantial neglect of duty, gross misconduct in office or inability to discharge the duties of office,” as the Arizona Constitution requires. Senate President Steve Pierce said the Legislature and governor can use that ruling to craft a “better” letter.
“They’re working on a letter and the issues that we’ve talked about it. They are considering those right now,” Pierce said. “We don’t know what we’re going to do and we don’t know which direction to go until we get together.”
Sen. Frank Antenori, R-Tucson, also said he wants to move forward with another removal.
“We’re waiting on the governor to step up and eat some ‘scorpions for breakfast.’ We’re ready to do this whenever she is,” said Antenori, referring to the title of Brewer’s new book .
Other Republican lawmakers are pushing for a special session so they can refer Prop. 106 to the ballot on Feb. 28, the day of Arizona’s presidential preference election. The timing would likely ensure a higher turnout among Republicans than Democrats, who don’t have a presidential primary, and give the referral a better chance of passing.
Shortly after returning to Phoenix from a trip to Washington, D.C., Brewer told reporters in a conference call that she’s “keeping her options open.” She said she’ll meet shortly with legislative leadership to figure out their next move.
“I’ll be in contact with the Legislature and from that point we’ll determine just exactly what it is that will be best for the state of Arizona,” she said. “I need to talk to Joe (Schiarotta, the governor’s attorney) and I need to talk to our legal counsel and I need to talk to the Legislature and we have to regroup.”
But given the possibility that the IRC could finalize its maps soon, Brewer said they need to move quickly.
“The IRC is going to move probably quickly, so it’s imperative that I get together with the leadership and see where they are at and then do … on my end, what I believe is the correct and right thing to do.”
The IRC has been on hiatus since it finished up a 30-day round of public comments on its draft maps on Nov. 5, four days after Brewer and the Senate removed Mathis. The newly reinstated chairwoman has not yet called another meeting.
Brewer said she doesn’t yet have a preference between removing Mathis again or putting Prop. 106 back on the ballot. She also said she hadn’t decided yet whether to seek a temporary restraining order from the courts to prevent the IRC from approving its final maps.
Arizona Democratic Party Chairman Andrei Cherny praised the court’s ruling and accused Brewer and the Legislature of plotting another “power grab.”
“They refuse to listen to the people, and they refuse to listen to the courts,” Cherny said in a press statement. “Republicans won’t stop until they own the next 10 years of Arizona elections. For the sake of good government and fair elections, their schemes must be exposed and these politicians must be held accountable.”
Even if Brewer were to draft another letter and seek Mathis’ removal again, she and the Senate can only guess as to what they might have to do to pass muster with the Supreme Court. The court likely won’t have a full opinion on the case for six to eight weeks, which will deprive Brewer and Senate Republicans of a road map they could use to ensure that they don’t once again run afoul of the judiciary.
Brewer said she was disappointed with the Supreme Court’s ruling and wanted to know the exact reasons why it reinstated Mathis.
“The bottom line is at this point in time, what I would like, obviously, is to understand why the court ruled in the manner that they ruled. I’m not privy to that information,” she said.
In the meantime, the Commission on Appellate Court Appointments cancelled a meeting it had scheduled for Tuesday to sort through applicants for the chairman’s position. Nineteen people applied for the post, but in light of the Arizona Supreme Court’s Thursday ruling, the appellate commission determined that there was no longer a vacancy, according to spokesman Jennifer Liewer.
Sen. John McComish, R-Phoenix, said it will be difficult to remove Mathis in a way that’s guaranteed to withstand a lawsuit unless they have a court opinion to use as a guide.
“We don’t know exactly what the court meant so we don’t have the guidelines. None of the options is very appealing right now,” he said. “It’s hard to see when you’re going through a thick fog.”
In the wake of the Supreme Court’s ruling, some Republican lawmakers felt the best option would be to send Prop. 106 back to the voters. Sen. Al Melvin, R-Tucson, said he wants a special session as soon as possible so the Legislature can call a special session for Feb. 28.
“Maybe some people have (another removal) as a possible strategy. The people I’ve talked to think we just have to cut to the chase and put it on the ballot and be done with it and stop nibbling around the edges,” Melvin said.
Melvin acknowledged that he didn’t know how the actual mapping process would play out if the voters overturned Prop. 106 or whether the Legislature would be able to draw new maps of its own. By the time of the special election, the IRC almost certainly would have held a final vote on its maps and submitted them to the U.S. Department of Justice for approval.
He also said he would support an idea pushed recently by some lawmakers, including Antenori, to have the Legislature draw maps of its own and put them on the ballot on Feb. 28 as well.
Sen. Michele Reagan, R-Scottsdale, said the state is simply going to have to live with Mathis and with the maps that the IRC approves. But she wants the voters to have their say on redistricting. She would prefer it be done as soon as possible, but wouldn’t oppose a ballot measure during the general election in November.
“I would like to refer 106 to the ballot, but I think coming back to try to remove Mathis again, my personal opinion is you cut your losses. We tried to do what we thought was right, the court disagreed with us,” Reagan said. “Unless there’s a very cohesive plan of what comes next, I wouldn’t support going and trying to remove her.”
Pierce said he believes repealing Prop. 106 in February would put the current map-drawing process back in the hands of the Legislature.
“If it was a repeal it would do away with everything that’s been done,” he said. “It has been considered. If members of the caucus want it, that’s the way we go.”
Some lawmakers were skeptical that voters would even be willing to put the redistricting process back in the hands of the Legislature. Sen. Ron Gould, R-Lake Havasu City, predicted that the voters would reject the proposal, even if the election were held on the day of the presidential primary.
“I think it fails, because the public’s mind, they think that when you create an independent body that it is then independent from politics. I think that’s salacious. But you have to convince the voter of that. Since the Legislature does not use public money, tax dollars for a referendum, there’s probably no money to educate the electorate,” Gould said.
McComish said he doesn’t know how Republicans would get the money for the massive marketing campaign they would need to convince voters to overturn Prop. 106.
“I don’t think we could get the public to vote to get rid of Prop. 106 and I think the Supreme Court’s decision now would make it harder to do that,” he said.
With the Thanksgiving holiday coming up next week, it is unknown how many lawmakers will be out of town and unavailable for a special session. Some, such as Rep. Rob Robson, R-Chandler, said they would be out of town during Thanksgiving week.
But if the Legislature convened to remove Mathis again, which wouldn’t require House members to return, the Senate president said it could be done that week and that he would have the 20 votes he needed to oust her.
“If it was needed, sure we could. We could … bring them in tomorrow if that’s what the governor wants to do. It’s totally up to the governor,” Pierce said.
If the Legislature pursues a ballot referral, the timing could be a serious problem for those are eyeing a Feb. 28 special election. State and county election officials need 90 days to prepare and a spokesman for the Secretary of State’s office said the Legislature must approve the special election by Nov. 30 in order to hold it that soon.
IRC attorney Mary O’Grady noted that the overturning of Prop. 106 or the implementation of any maps drawn by the Legislature would require approval from the U.S. Department of Justice. Arizona is one of a handful of states that requires DOJ pre-clearance for any changes to election or voting laws under the Voting Rights Act.
“That would be interesting. They’d certainly need (preclearance) to use it for the next election,” O’Grady said.
-Bill Bertolino, Luige del Puerto, Jim Small and Evan Wyloge contributed to this story