Democrats sue to remove two independents from list of AIRC finalists

By: - October 23, 2020 12:15 pm

Photo by Jim Small | Arizona Mirror

Legislative Democrats are suing to remove two applicants from the list of independent finalists for the next redistricting commission, arguing that one is disqualified because he’s registered as a lobbyist while the other should be removed because he’s not a true independent.

House Minority Leader Charlene Fernandez, D-Yuma, and Senate Minority Leader David Bradley, D-Tucson, who filed the suit Friday morning in Maricopa County Superior Court, are also asking that the court temporarily block the appointment of new redistricting commissioners on the grounds that the nominating panel that vets them hasn’t complied with the requirement in the Arizona Constitution that it send the legislature a list of 25 qualified finalists.

House Speaker Rusty Bowers made the first appointment to the Arizona Independent Redistricting Commission on Thursday, selecting Tucson developer David Mehl as a Republican member. Barring a court order, Fernandez has just seven days to make her first selection.

Democrats have voiced objections to three of the five independent finalists, possibly leaving only two they would find acceptable. The independent chair serves as a tiebreaker if the IRC’s two Democrats and two Republicans deadlock on a 2-2 vote.

The Arizona Constitution lays out several qualifications for redistricting commissioners. One of those prohibits anyone who has been a “registered paid lobbyist” in the past three years from serving on the IRC, though it doesn’t define precisely what that means. Another requires commissioners to have been registered with the same political party — or, for independents, registered under no party — for at least three years.

Fernandez and Barton alleged in their lawsuit that Loquvam runs afoul of the lobbyist prohibition. Loquvam, the general counsel at the utility company EPCOR, is registered to lobby on behalf of his employer at the Arizona Corporation Commission, though he’s not registered with the Secretary of State’s Office as a lobbyist at the legislature.

Loquvam previously worked as counsel at Pinnacle West, parent company of Arizona Public Service, which has made him controversial among Democrats, who are highly critical of the utility giant for the millions of dollars it has spent — much of it secretly — on behalf of Republicans in recent elections.

Loquvam wrote in his application to the AIRC that he had to register as a lobbyist in order to speak with members of the Corporation Commission about issues affecting his company, but that he doesn’t believe he violates the lobbyist criteria because he’s not compensated primarily for the purpose of lobbying.

Attorney Jim Barton, who represents Bradley and Fernandez, wrote in the lawsuit that that’s immaterial.

“Mr. Loquvam is indeed registered as an active lobbyist with the Arizona Corporation Commission,” Barton wrote. “He also admits that he is required to register by virtue of his employment, thus conceding he is a paid lobbyist. His claim that lobbying is not the ‘primary purpose’ for his compensation is irrelevant.”

The Commission on Appellate Court Appointments, which vets redistricting applicants and selects the list of 25 finalists that legislative leaders choose from, received advice from the Arizona Attorney General’s Office on the matter. While the appellate commission struck two other candidates, one Republican and one independent, from consideration because they’d been registered with the secretary of state to lobby for their employers, the Attorney General’s Office said that likely didn’t apply to Loquvam.

Arizona Supreme Court Chief Justice Robert Brutinel, who chairs the appellate commission, told the Arizona Mirror earlier this month that the Attorney General’s Office opined that the constitutional criteria regarding lobbyists was intended to prohibit people who lobby lawmakers from drawing the districts in which those same lawmakers run for office. That isn’t the case with corporation commissioners, who run statewide.

“We asked the attorney general for their advice on that issue, and it really is a question for each individual commissioner to decide, because there isn’t any definite law on the subject,” Brutinel told the Mirror. “I think (the appellate commissioners) were persuaded — at least I find somewhat persuasive the assertion that there’s a difference there, and a justifiable difference between Loquvam and the remainder of the people who were disqualified as paid lobbyists.”

Barton disagreed with that distinction.

“I think the constitution’s pretty clear. I think he’s a paid, registered lobbyist,” Barton told the Mirror on Friday.

The legal case against Wilson is a bit murkier. 

Democrats argue that Wilson, who owns a gun store and a business consulting firm in Flagstaff, isn’t a true independent and that he favors the Republican Party. They pointed to the fact that Wilson hosted a Trump campaign event in the parking lot of his gun store in August, and held other events at his store in 2018 and 2019 in which he hosted Republican candidates for the legislature and Congress. 

Wilson voted in Republican primaries in 2010, 2014 and 2018, switching to the Democratic primary this year. Independent voters are able to choose which primary to vote in.

The appellate commission’s selection of Wilson as one of the five independent finalists “violates the spirit and the intent” of the constitutional criteria, the lawsuit read.

“Although Wilson is and has been registered as an Independent since 2005, his voting history and political activities clearly show he is not an unbiased independent voter with no party affiliation,” Barton wrote. 

However, the constitution only requires that AIRC applicants be registered with the same political party for at least three years prior to their appointment. There are no criteria governing the political beliefs of independents — or Democrats, Republicans or others, for that matter. 

Though Wilson appears to be qualified as an independent under the letter of the law, Barton said he believes there’s a case to be made that he should be removed. He said the purpose of the AIRC, which replaced the old system in which the legislature drew congressional and legislative districts, was to remove partisanship from the process. Allowing an independent with such overt partisan leanings would undermine that system, Barton said.

“This is really showing the willingness to push the lines here,” Barton said. “I’m not going to write off a court’s willingness to say, ‘No, at some point, if you’re faking the system, if you’re basically engaged in a fraud, we’re going to block that.’ So, we’ll see what the court says.”

Wilson told the Mirror on Friday that he allowed the events at Timberline Firearms and Training for the purpose of informing the public, and that the candidates reached out to him, not the other way around. Wilson said his store is available for events by Democratic candidates as well, though he considers it unlikely that any would take him up on the offer due to the party’s positions on gun control. He also noted that he conducts voter registration at his store.

Wilson said he never expressed support for Trump or any other of the candidates who held events at this store. He also said that being an independent doesn’t mean you don’t have political views.

“I didn’t endorse anyone, and I would suggest that all of the independent candidates will be voting for a presidential candidate one way or the other. And that has abvolustly no bearing on their ability to have an independent view on political issues,” he said.

An independent who leans toward one party or the other, or is perceived to do so, can have tremendous consequences at the IRC. Colleen Mathis, the independent who chaired the commission that was empaneled in 2011, routinely voted with the IRC’s two Democrats and against her two GOP colleagues, leading Republicans to argue that she was essentially colluding with the Democrats.

The situation came to a head in late 2011 when the GOP-controlled Senate voted to impeach Mathis over her alleged bias toward the Democrats. The Arizona Supreme Court later reversed the impeachment, arguing that it didn’t pass muster under the state constitution. Republican lawmakers were so incensed by the ruling that some threatened to cut funding for the court system.

The four partisan redistricting commissioners selected by legislative leaders select the independent chair from the list of five finalists. Because an independent chair needs at least three votes, that gives both parties an effective veto over any candidate they disapprove of. 

But in addition to Loquvam and Wilson, the Democratic Party has taken issue with Erika Schupak Neuberg, a psychologist and national board member for the American Israel Public Affairs Committee, because she’s given $10,000 to Republican Gov. Doug Ducey’s campaign and political action committee. Neuberg has also given tens of thousands of dollars to candidates of both parties, including most members of Arizona’s congressional delegation.

Bradley and Fernandez attributed Loquvam and Wilson’s inclusion on the list of finalists to Ducey’s “stacking” of the Commission on Appellate Court Appointments. The commission, whose primary job is vetting and nominating applicants for the Arizona Supreme Court and Court of Appeals, has only three Democratic members. Until just a couple months ago, it consisted of only Republicans and independents, some of whom had clear leanings toward the GOP.

“Our Constitution prohibits lobbyists from serving on the commission, so that strikes Mr. Loquvam, whose name never should have been brought forward as a finalist by a Gov. Ducey’s stacked Commission on Appellate Court Appointments. And what part of hosting a Trump rally, and Republican campaign events, makes anyone think Mr. Wilson will be impartial or fair?” Fernandez said in a press release.

Bradley said, “The Commission on Appellate Court Appointments’ entire nominating process has been corrupted ever since Governor Ducey stacked the Commission with Republicans and Republican-leaning independents. It’s been a blatant power grab from Republicans who know that the political tide is turning in Arizona.”

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”