WASHINGTON — The justices of the U.S. Supreme Court gave a skeptical response today to arguments by Republican interests that the lines for the state’s 30 legislative districts were illegally drawn.
Attorney Mark Hearne told the justices that the Independent Redistricting Commission acted illegally when it adopted final maps with population deviations of up to 8.8 percent between the largest and the smallest. Hearne said the districts were gerrymandered for improper purposes.
That includes his contention that the five-member panel designed the map in a way to give Democrats an edge.
Hearne conceded under questioning that partisanship, by itself, is not illegal. And he acknowledged that the commission unanimously concluded that the changes to the map — with one exception — were done to comply with a mandate of the federal Voting Rights Act to not dilute minority voting strength.
He said, though, that neither is permissible when the net effect is to create some districts that are larger than others, violating constitutional provisions of one person/one vote.
So he wants the high court to order the commission to redraw the lines with pretty much equal populations ahead of the 2018 election, as any ruling likely would come too late to affect 2016 lines. And that could give Republicans an even greater edge than they now have in the Legislature.
But several of the justices said there are flaws in his argument.
Justice Antonin Scalia suggested it would be tough to show any misconduct if the commissioners thought their actions were done to meet the Voting Rights Act.
“That doesn’t show a bad motive on their part, does it?” Scalia asked Hearne.
Justice Anthony Kennedy seemed to agree, telling Hearne that if the commission had a good faith belief its actions were proper, “then you have a problem.”
Hearne said acting with any partisan purpose means the plan had “an illegitimate purpose,” even though a lower court found that the predominant motive was trying to get the plan cleared by the Justice Department.
Justice Ruth Bader Ginsburg said the end result was that the plan actually gave Republicans more than their proportional share of seats in the state legislature.
“If there was an attempt to stack this in favor of Democrats, it certainly failed,” she said.
Hearne said an “incompetent gerrymander” is no better than one that worked.
The high court ruled in a 1964 case that the principle of one-person, one-vote requires a state’s legislative districts to have roughly equal numbers of people. But those numbers don’t have to be exact. Differences of less than 10 percent are presumed constitutional unless challengers can show they are the result of discrimination or other invalid reasons.
The average population difference in Arizona’s redrawn districts is 2.2 percent, with a maximum of 8.8 percent. The plan placed more GOP voters in some Republican-leaning districts, but left other districts with smaller overall populations. Those districts have heavier concentrations of Hispanic voters and are considered more likely to elect Democrats.
A panel of federal judges ruled those differences were legal because the commission mainly was trying to win Justice Department approval for the new map under the Voting Rights Act. The lower court also found the commission did not violate the Constitution’s equal-protection clause even though it appeared that some commission members were trying to “improve Democratic prospects in the affected districts.”
A good-faith effort
Scalia said Hearne’s case is based on his contention that there was an intent by the commission to violate the law in creating the unequal-sized districts.
But he noted that the majority of a three-judge panel that heard the arguments in Phoenix concluded they had made a good-faith effort to meet the requirements of the Voting Rights Act. And the commission’s own attorneys told them the changes were needed.
“That doesn’t show a bad motive on their part, does it?” the justice asked Hearne.
Hearne said that’s true.
“But I don’t think this court’s ever held that bad legal advice justifies a constitutional violation,” he responded.
The court has previously said that population differences of less than 10 percent do not by themselves create a claim for a constitutional violation.
“This seems in a category of minor deviations,” said Justice Stephen Breyer. And under questioning from Justice Sonia Sotomayor, Hearne could not cite a case where the court has required a state to explain a population deviation of less than 10 percent.
Today’s questioning by the justices of Hearne and state Attorney General Mark Brnovich, who echoed many of the same arguments, does not mean the court ultimately will uphold the lines.
The justices also peppered attorney Paul Smith, who represents the commission, with questions about just how much leeway the panel has to divert from ideal populations — and under what circumstances.
And Justice Samuel Alito was not impressed with the fact that Republicans still have a greater number of seats in the Legislature than their registration would otherwise indicate.
“That’s a red herring,” he said.
But Smith said claims of political partisanship were undermined by the fact that the maps were adopted by the commission without dissent. He said that proves that all five members — two Republicans, two Democrats and a registered independent — believed the final plan provided the best chance of getting the required “preclearance” from the Department of Justice.
Questions about Legislative District 8
One decision, however, stands out.
The two Republicans voted against a change in the final plan to move some Republicans out of Legislative District 8.
That district stretches from Casa Grande through Florence and the San Tan Valley all the way to Globe in one corner, and Oracle in the other. The final plan put it below the “ideal” population of about 213,000, one thirtieth of the state population in 2010.
As it turned out, though, 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.
Justice Ruth Bader Ginsburg cited the election results.
Hearne said that’s not the point.
“We would say, your honor, that an incompetent gerrymander is not less a gerrymander when it unequally apportions the population than a competent gerrymander that obtained the partisan objective,” he responded.
Brnovich, in his own arguments to the court, went a bit farther than Hearne.
He said it’s legally irrelevant that the commission, in drawing the lines, did so with the intent of complying with the Voting Rights Act. Brnovich told the justices they should instead focus on the one person-one vote requirements of the U.S. Constitution.
“No statute can trump the Constitution,” he said.
That still leaves the question of whether there are any reasons the commission can deviate from ideal population.
For example, Justice Alito noted that the 2000 voter-approved state constitutional provision creating the commission requires it to consider not just the Voting Rights Act but other factors, like following political boundaries when possible. He said that could create a situation where moving a line to keep residents of a county together would result in unequally populated legislative districts.
Brnovich conceded such moves would be legal — but only if they were “incidental” to meeting the goal. What happened here, he said, is “systematic underpopulation” of certain districts. And even then, Brnovich said, the desire to keep county residents together is not, by itself, an excuse for changes.
“The road to hell is paved with good intentions,” he told the justices.
Scalia separately questioned Brnovich on the fact that when the lawsuit was first filed by the Republican interests, the state itself stayed out of the argument. It was only when there was an appeal to the Supreme Court that Brnovich, on behalf of Secretary of State Michele Reagan, both of them Republicans decided to intercede.
“What happened? Was there an election in between or something?” Scalia inquired to the laughter of the audience.
“Yes,” Brnovich answered. “And I won overwhelmingly.”
“I knew it,” Scalia responded.
“Thank you very much,” Brnovich said. “I will be up for reelection in three more years.”
–Includes information from the Associated Press