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Scalia’s death could doom Republican redistricting case

Supreme Court Justice Antonin Scalia participates at the third annual Washington Ideas Forum at the Newseum in Washington ,Thursday Oct. 6, 2011.    (AP Photo/Manuel Balce Ceneta)

Supreme Court Justice Antonin Scalia participates at the third annual Washington Ideas Forum at the Newseum in Washington ,Thursday Oct. 6, 2011. (AP Photo/Manuel Balce Ceneta)

The death Saturday of Supreme Court Justice Antonin Scalia could undermine efforts by Arizona Republicans to undo the state’s 30 legislative districts.

Attorney General Mark Brnovich, who asked the high court in December to void the current lines, said much of his pitch was based on the constitutional one-person, one-vote requirement. Brnovich said that was squarely aimed at Scalia who had defined himself as an “originalist” who believes the language of the Constitution means exactly what it says.

What makes Scalia’s death significant for that case is the possibility the court would have ruled 5-4 that the Independent Redistricting Commission acted illegally in creating districts with unequal populations. Without Scalia — assuming he sided with challengers — that would result in a 4-4 tie, leaving intact the lower court ruling that concluded the commission did not act illegally.

And that, in turn, means the current lines remain through at least the 2020 election, lines that Republicans who challenged them contend give unfair advantage to Democrats.

The fight surrounds the admitted population differences among the 30 districts.

Challengers contend the commission intentionally “packed” non-Hispanic Republicans into some districts so the remaining districting had a higher proportion of Democrats. That would give candidates from that party a better chance of getting elected.

Attorney Mark Hearne, representing a group of Republicans who brought the original lawsuit, said the numbers bear that out.

He pointed out that if the state’s population was equally divided by 30, each district should have about 213,000 residents. But he said some Republican districts had more than 221,000 residents; five Democrat districts had fewer than 205,000.

But a three-judge panel accepted arguments by the commission that was done in hopes of ensuring the U.S. Department of Justice, which had to “preclear” the maps, would find them in compliance with the federal Voting Rights Act and its mandate to not dilute minority voting strength.

Brnovich, who joined the challenge on behalf of Republican Secretary of State Michele Reagan, told the justices they should overturn that ruling. He said the intent of the commissioners is legally irrelevant, telling the justices they should instead focus on that one-person, one vote requirement of the U.S. Constitution.

“Essentially what happened was by overpopulating the other districts, the voters in the overpopulated districts had their votes diluted,” Brnovich argued. “And by diluting those votes, it violated the Constitution.”

And that, he told the justices, should end the discussion.

“No statute can trump the Constitution,” Brnovich said.

But Brnovich said Sunday his constitutional arguments did not necessarily mean Scalia was going to side with challengers.

“There’s no way you can predict what any judge is going to do,” he said. And Brnovich acknowledged that Scalia could just have easily concluded the legal fight is simply about politics, an issue that the justices often try to avoid.

Scalia did, in fact, express some skepticism to arguments made by Hearne that the commissioners, in creating unequal size districts, showed an intent to violate the law.

The justice noted the lower court concluded the commission had made a good-faith effort to comply with the Voting Rights Act. And he said the commissioners’ own attorneys told them the changes in lines that were made by needed.

“That doesn’t show a bad motive on their part, does it?” Scalia asked Hearne.

Hearne conceded the point.

“But I don’t think this court’s ever held that bad legal advice justifies a constitutional violation,” he said.

There is some evidence the maps drawn by the commission — the ones being challenged — did help increase Democrat representation. Following the last redistricting, there were 13 Democrats in the 30-member Senate and 24 Democrats out of 60 House members. That compares with just nine Senate Democrats and 20 in the House prior to redistricting, though Democrats have had larger numbers in some prior years.

Scalia’s originalist philosophy was on display in a separate redistricting case where the high court last year upheld the power of Arizona voters to give the responsibility to draw congressional districts to the commission. Scalia dissented, pointing out that the U.S. Constitution specifically requires congressional lines to be drawn by each state’s legislature.

He specifically derided the conclusion by the majority that the people who created the commission –and took the duty away from lawmakers — are the ultimate legislature, calling it “so outrageously wrong, so utterly devoid of textural or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures.”

Brnovich said Scalia had “an amazing sense of humor.” That was on display last year when the justice was in Phoenix to promote a new book.

Scalia poked a bit of fun at Brnovich, who introduced him, saying his name was unpronounceable because it did not have enough vowels.

“Why don’t you have a good, old fashioned, common American name, like Scalia,” the justice quipped.

Scalia and Brnovich shared a moment during the December arguments when the justice asked the attorney general why he wasn’t involved in the case at the trial court level.

“What happened,” Scalia inquired amid laughter. “Was there an election in between?”

“Yes, and I won overwhelmingly,” Brnovich responded.

“I knew it,” Scalia said.

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