By Jeremy Duda –
Published: October 20, 2011 at 7:59 am
Republicans who are upset with the work of the Arizona Independent Redistricting Commission are consoling themselves with the thought that they can undo the maps with a lawsuit, but that threat may ring hollow in the end.

Many Republican lawmakers say they believe the maps violate two of the six criteria the commission must use to draw maps – communities of interest and compactness. But a lawsuit against the first commission, filed by a group advocating for more competitive districts, set precedent that will be hard to overcome if GOP legislators or other Republicans challenge the maps in court.

In its 2009 ruling, the Arizona Supreme Court said the commission should be legally treated as a legislative body, meaning it acts on the assumption that its actions are constitutional unless proven otherwise. And those actions – including the way it balances the six often conflicting criteria it must follow – receive a great deal of deference from the court. Four of the six criteria state that they must be followed “to the extent practicable.”

“In reaching their decisions, the commissioners perform legislative tasks of the sort we make every effort not to preempt,” the ruling stated. “The constitutional requirement that the commission accommodate specified goals ‘to the extent practicable’ recognizes that accommodating the various goals requires the commission to balance competing concerns.”

The court’s acknowledgement that the commissioners must exercise discretion in balancing the criteria gives the IRC a great deal of leeway, said Arizona State University law professor Paul Bender. As long as the commission does not blatantly ignore one or more of the criteria, he said, the Supreme Court will not second-guess how it weighed them.

“If the commission considers all the factors it’s supposed to consider, they’re not going to review how they balance and weigh those factors,” said Bender, who unsuccessfully sought the chairmanship of the current commission.

Attorney Paul Eckstein of the firm Perkins Coie Brown & Bain, who represented the plaintiffs in the competitiveness lawsuit against the first IRC, said the Supreme Court wouldn’t overturn the commission’s decisions in anything but the most egregious of violations. And if the commission can explain why it made a decision, he said, it would be difficult, if not impossible, to prove it was unconstitutional.

“If they come up with any plausible reason for their actions, I think that’s going to carry the day on those issues,” Eckstein said.

But attorney Lee Miller, who represents the Arizona Republican Party, said that interpretation of the rulings means that the commission’s maps are effectively unreviewable by the courts. And Miller said he believes there is a path to victory in a lawsuit.

If someone could create their own map that eliminated results that he believes are blatant constitutional violations – such as grossly misshapen districts that don’t follow the compactness requirement – then that may be enough to show that the commission disregarded the law, Miller said. He acknowledged that simply drawing an alternative map won’t cut it. The Supreme Court said as much in its ruling. But Miller said he believes an alternative plan could still demonstrate that the commission completely disregarded the criteria.

“Litigation is a tough road to hoe, no doubt about that,” Miller said. “I think you have to show that there’s a map out there that’s a real material improvement, and … that the commission did not do its job because they were not able to get to that map.”

That may be possible, Miller said, considering the commission’s insistence on creating competitive districts, which he led the IRC to ignore other criteria. Proposition 106, the ballot measure that created the commission, said the IRC must favor competitiveness when it will not create a “significant detriment” to the other criteria.

Districts such as LD13, which stretches from northern Yuma County to western Maricopa County, and LD2, a Nogales-to-southern Tucson district that snakes along the Mexican border in Cochise County, show that disregard for the criteria, Miller said.

Another problem, Miller added, is that neither Prop. 106 nor the courts have ever defined what constitutes a significant detriment.

Lisa Hauser, an attorney who represented the first IRC, said it’s up to the commission to determine whether something causes a significant detriment to the criteria, and the courts will be hesitant to micromanage its decisions.

But the one thing that may hurt the commission in a lawsuit, she said, is the lack of a record of its deliberations. The competitiveness lawsuit relied heavily on the commission’s debates over the issue. But the current commission did so much work behind closed doors – including independent Chairwoman Colleen Mathis’s weekend redrawing of the congressional map – that it will have a hard time showing it properly considered all the criteria.

“No other commission knows how the districts on that map were created,” said Hauser, of the firm Gammage & Burnham. “There’s always going to be some questions in regards to what went into the creation of that map. … You might have one district or two that are driving an entire map. And that can be, I think it can cause concern.”