The fact that politics may have been involved in drawing legislative lines is no reason to declare them illegal, the attorney for the Independent Redistricting Commission is urging the U.S. Supreme Court.
In legal arguments to the court, Mary O’Grady does not dispute that two federal judges found that some of the commissioners altered the boundaries of at least one district to make it more politically competitive, a move that would give Democratic candidates a better chance of getting elected.
And O’Grady conceded the final map for the 30 districts had a population differential of 8.8 percent between the largest and smallest despite requirements for equal population.
But she said the full commission approved the plan not out of partisan motives but because the panel believed it would provide the best chance of complying with the federal Voting Rights Act.
It generally prohibits political changes that dilute minority voting strength. And that, she told the justices, justifies the changes — and even the population differential.
The effort by challengers to void the map is more than a debate about legal niceties.
If the high court finds the commission acted illegally, it could order it to recraft the maps without the population differentials. That could give Republicans a greater chance of getting elected and further improving the 17-13 edge they already have in the state Senate and 36-24 margin in the House.
The legal fight has its roots in a 2000 voter-approved constitutional amendment which took away the Legislature’s power to draw its own districts — as well as congressional lines — and gave that decennial chore it to the commission. It requires commissioners to create districts that respect communities of interest, use county boundaries when possible, create as many politically competitive districts as possible and have districts of equal size.
Using 2010 census figures, each district should have about 213,000 residents. But the commission, by its own admission, had districts ranging from about 203,000 to more than 220,000.
Republican challengers filed suit, saying the disparities are illegal, especially as they were done for political purposes.
The three-judge panel that heard the case agreed that the evidence showed that “partisanship played some role in the design of the map.”
But the court ruled the U.S. Constitution does not require that legislative districts have precisely equal population, saying there can be “divergencies” necessary to achieve other goals. And in this case they said the commission’s decision to manipulate the lines was “primarily a result of good-faith efforts to comply with the Voting Rights Act.”
That led attorney Thor Heane, representing the GOP interests, to seek Supreme Court review. He contends the VRA cannot justify what he called “systematic population inequality on the basis of race, ethnicity or partisanship.”
O’Grady, however, wants the high court to reject that contention, accept the findings of the trial judges, and toss out the challenge.
“The (Supreme) Court’s role isn’t to retry the case,” she said, but instead to simply review the decision of that three-judge panel and determine if their legal conclusions were correct.
“There was a full trial and a review of the complete commission record,” O’Grady said. “And the court found … that the population deviations in the map were not the result of partisanship and they were justified by a desire to comply with the Voting Rights Act.”
But O’Grady said it really wouldn’t matter, at least not in terms of federal constitutional requirements, even if the commission did craft a map with Democrats in mind.
“The court has never held that partisanship is an invalid purpose in the redistricting process,’’ she said. Anyway, she argued, the findings of the trial judges that there was some partisan motive in drawing the lines was really about a single district which stretches from Casa Grande through Florence and the San Tan Valley all the way to Globe in one corner and Oracle in the other. That district is below the “ideal” population.
O’Grady said the trial court did conclude that two of the five commissioners pushed the change to improve Democrat prospects by reducing Republican population. But she said that was not to guarantee a Democrat would be elected but simply to make the district “competitive.”
Anyway, O’Grady said the change was not approved until the majority of the commission was convinced the change was necessary to comply with the Voting Rights Act.
As it turned out, the district was far from a Democrat shoo-in: Voters elected Democrat Barbara McGuire to the state Senate in 2012 and again this year but the two House seats have been held by Republicans Frank Pratt and T.J. Shope.
But a Supreme Court ruling against the commission would affect far more that District 8, as many of the districts are above or below that “ideal” population.
The court has given no indication when it will rule.