The U.S. Supreme Court will decide whether the lines for the state’s 30 legislative districts were illegally drawn.
Without comment the justices agreed Tuesday to review charges that the five-member commission violated federal law by creating legislative districts of unequal population. More to the point, challengers say that was done largely to give Democrats an unfair advantage.
Tuesday’s order sets the stage for arguments, probably not before December.
Unlike the fight decided by the high court Monday over congressional districts, this one does not challenge the authority of the commission. No one contends the panel cannot legally divide up the state into 30 legislative districts.
Instead, the issue is whether the commissioners followed the law.
The 2000 voter-approved constitutional amendment took away the Legislature’s power to draw its own districts – as well as congressional lines – and gave 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 legislative district should have an “ideal” population of about 213,000. But the commission, by its own admission, had districts ranging from 203,026 to 220,157.
What’s worse, according to attorney Thor Hearne who represents Republicans who are challenging the maps, is that population adjustments were made for political purposes.
He said the commission “packed” Republican voters into some districts which already had GOP majorities. That left underpopulated districts where Democrats had a better chance of winning.
There is some evidence the maps helped Democrats.
There are currently 13 Democrats in the 30-member Senate and 24 Democrats out of 60 House members, compared with just nine Senate Democrats and 20 in the House prior to redistricting. But Democrats have had larger numbers in some prior years.
In a ruling last year, a three-judge panel acknowledged the population deviations. And they said evidence shows 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. Instead, the judges said, there can be “divergencies” necessary to achieve other goals.
In this case, the panel accepted arguments by commission attorney Mary O’Grady that the decision to manipulate the lines was done to comply with the federal Voting Rights Act and its prohibitions against diluting minority voting strength. O’Grady pointed out that federal law at that time required states like Arizona with a history of discrimination to get “preclearance” from the U.S. Department of Justice before making any changes in election laws, including redistricting.
But Hearne pointed out to the justices that they have since invalidated the whole concept of preclearance.
That still leaves the question of motive.
The trial court did conclude two of the five commissioners pushed changes to improve Democratic prospects in at least one district by reducing Republican population. That district, LD 8, stretches from Casa Grande through Florence and the San Tan Valley all the way to Globe in one corner, and Oracle in the other. And it is below the “ideal” population.
But O’Grady said that was not to guarantee a Democrat would be elected but simply to make the district “competitive.”
As it turned out, the district is far from a Democrat shoo-in: Voters elected Democrat Barbara McGuire to the state Senate in 2012, and again last year. But the two House seats have been held by Republicans Frank Pratt and T.J. Shope.
Hearne said that, at least from a federal law perspective, it would not have mattered if the panel did move the lines to help Democrats if they had kept the districts all the same size.
“But that’s not what they did,” he said.
A Supreme Court ruling against the commission would affect far more than District 8, as many of the districts are above or below that “ideal” population.