GOP attorney in IRC case says Voting Rights Act ruling should be retroactive

A GOP attorney who is challenging Arizona’s legislative maps said a federal judge should retroactively apply the U.S. Supreme Court’s ruling that scrapped the preclearance requirement of the Voting Rights Act, even though Arizona was still subject to the law when the maps were implemented.

In a briefing filed on Friday, David Cantelme wrote that the high court’s ruling that effectively halted Section 5 of the Voting Rights Act bolsters his clients’ case that a U.S. District Court should force the Arizona Independent Redistricting Commission to redraw its legislative map.

Arizona was one of nine states required by Section 5 to get preclearance from the U.S. Department of Justice for all election law changes, including redistricting plans. The Supreme Court’s June ruling in Shelby County v. Holder lifted that requirement when it struck down the coverage formula in Section 4, which was used to determine which states and jurisdictions would be subject to preclearance.

“Nowhere in Shelby County did the Court indicate that its holding would not have retroactive effect,” wrote Cantelme, of the law firm Cantelme & Brown. “In this case, the IRC cannot use the timing of Shelby County as a shield. Arizona was previously subject to Section 5 solely by virtue of Section 4’s coverage formula. That formula has been deemed invalid. Because Shelby County applies retroactively, the formula was also invalid when the IRC was creating the maps at issue.”

Cantelme even wrote that the IRC should have anticipated the historic ruling due to a 2009 Supreme Court opinion that questioned the constitutionality of the formula in Section 4.

The attorney represents a group of conservative activists who are alleging that the IRC purposely underpopulated Democratic legislative districts and packed Republicans into overpopulated GOP districts in order to give Democrats more seats in the Legislature. The IRC argues that the population deviations were necessary in order to comply with the Voting Rights Act.

Cantelme stood by the plaintiffs’ assertions that the maps were already unconstitutional before the Supreme Court’s ruling on Section 4. But the ruling further buttressed that argument, the attorney wrote.

“This argument (by the IRC) was not tenable even before Shelby County,” Cantelme said. “Shelby County shreds what’s left of the fig leaf that the IRC had used to cover its dilution of Plaintiffs’ voting rights.”

But an attorney for the IRC said Cantelme’s argument doesn’t hold water because Arizona was still subject to preclearance during the 2011-2012 remapping process.

“States have to rely on the law in place at the time. We had an obligation if we wanted maps to be used for the 2012 election cycle, we needed to preclear them. And that was the commission’s responsibility,” said Mary O’Grady, of the firm Osborn Maledon.

O’Grady said the IRC will further elaborate in its formal response, which is due Aug. 2.

Cantelme focused on three legislative districts that he said were unnecessarily and unconstitutionally underpopulated – Phoenix-based Legislative District 24, Tempe-based Legislative District 26, and Pinal County-based Legislative District 8. He wrote that in order for the districts to qualify as minority districts under the Voting Rights Act, their minority population must be greater than 50 percent.

But he made it clear that he wants a wholesale redrawing of the legislative maps, not just adjustments to those three districts. The IRC, Cantelme wrote, will have to either increase the minority population of those three districts or redraw the lines in compliance with state laws requiring adherence to county and city boundaries.

“Either way, the map will be significantly different,” Cantelme said. “No mere tinkering with deviations at the margins will suffice, because the state criteria and Section 2 (of the Voting Rights Act) require far greater change.”

Cantelme also argued that the three federal judges in the case should not kick it to a state court. Judge Roselyn Silver suggested the possibility in a July 8 order.

If the court sends the case to a state court, Cantelme wrote, it would make it highly unlikely that new legislative districts would be in place in time for the 2014 election. He noted that a lawsuit over the 2002 redistricting plan was not settled until 2009.

The court heard arguments in the redistricting case in April, but has not yet issued a ruling. After the Supreme Court’s ruling in the Shelby County case, Silver asked attorneys to prepare briefs on what, if any effect the ruling would have on the case.