Legal counsel fight was pivotal moment for last redistricting commission

By: - April 5, 2021 11:42 am

Illustration by teddyandmia | iStock / Getty Images Plus

When the Arizona Independent Redistricting Commission chooses its legal counsel, a decision that could come as early as Tuesday, it will pass a major milestone that sent its predecessor careening into partisan strife and acrimony a decade ago.

The commission that drew Arizona’s legislative and congressional districts in 2011 quickly devolved into two factions, with its two Democratic members and independent chairwoman on one side, and the two Republican members on the other. That rift began abruptly when the Democrats and the independent outvoted their GOP colleagues on the selection of legal counsel.

The 2011 AIRC decided to follow the original 2001 commission’s lead and hire two attorneys, a Democrat and a Republican. But rather than the Democrats and Republicans each choosing their own counsel, Democrats Jose Herrera and Linda McNulty combined with Chairwoman Colleen Mathis to choose both attorneys, leaving Republicans Scott Freeman and Rick Stertz with a GOP lawyer they hadn’t wanted.

That decision left a lasting rift on the commission. It was the first of many 3-2 votes at the commission, most of which ended with Herrera, Mathis and McNulty outvoting their Republican colleagues.

The same decision now looms over the current commission, which on Tuesday will interview four finalists to serve as its legal counsel. The AIRC has indicated that it’s likely to follow in the footsteps of its two predecessors and have both Democratic and Republican counsel.

Mathis said her preference was to hire one firm to represent the commission, but the other four commissioners wanted to go the route of partisan co-counsel, so she went along with them. 

Initially, Mathis said, the Democrats favored Michael Mandell, a former attorney for the Democratic caucus in the Arizona Senate, while the Republicans wanted Lisa Hauser, a GOP election attorney who’d served as co-counsel for the first redistricting commission. However, the AIRC ultimately selected Democrat Mary O’Grady and Republican Joe Kanefield as its attorneys. The vote was 3-2, with Freeman and Stertz on the losing side.

However, Mathis didn’t want any attorneys whom she felt were too partisan, she told the Arizona Mirror. And in her view, that excluded Hauser and Mandell.

While journalists, Republican critics and others often characterized Mathis as voting with the two Democratic commissioners, she said that wasn’t the case with the choice of legal counsel. The two Democrats came around to her point of view and sided with her, the former chairwoman said. 

“They knew how I felt. I wanted the most bipartisan folks. And that’s what we got. And it was the Democrats who decided they were going to go ahead and sacrifice their choice for the one I wanted,” Mathis told the Mirror during a January interview. “The Republicans could’ve sacrificed their first choice also, and they didn’t.”

The commission chair is a unique role. The person in that role must strive to find balance between the four partisan members, Mathis said, while also being a fully functioning member of the AIRC who was there to represent the sizable portion of the state’s electorate that isn’t affiliated with a party.

“The decision has to get made. So, if everybody isn’t going to get on the same page, then you’ve got to move forward,” she said.

At the May 13, 2011, meeting where the AIRC selected its attorneys, the Republicans opposed the move to hire Kanefield and O’Grady, and instead insisted that the Democrats and Republicans should each get to choose their own counsel.

If the commission had opted to hire truly nonpartisan counsel, Freeman said during the meeting, the situation would have been different. But they chose instead to take a more partisan route. Given that, Freeman said he was willing to give the Democrats deference on their choice of counsel, and that he hoped the Democrats would do the same for the Republicans.

“I don’t think this is about partisanship. I think, like I said, absent a truly independent counsel presented with us, this is about getting, as the first commission did, the best legal counsel among the Republicans that the Republicans are comfortable with and as well qualified, and the same thing for the Democrats and their counsel,” Freeman said.

Stertz made a substitute motion to hire Hauser and Mandell. Herrera, Mathis and McNulty voted it down, and then voted to hire Kanefield and O’Grady instead.

The situation wasn’t necessarily irredeemable after the legal counsel fight: Stertz described the beginning of the mapping process as the last straw. 

But two factions quickly consolidated at the commission after the dispute over legal counsel, and the relationship between them never recovered. The rift was exacerbated when the AIRC made its next major hiring decision — again on a 3-2 vote — to hire a firm called Strategic Telemetry, which had worked for the Obama campaign in 2008, as the commission’s mapping consultant. 

By the time the commission began drawing its maps, 3-2 votes following acrimonious disagreement was the norm, and that trend continued until the AIRC completed its work.

“It made it really clear from that point going forward that the Republicans’ voice no longer had meaning because the chair had sided with, and continued to side with the Democrat decision-making,” Stertz told the Mirror in reference to the fight over the AIRC’s legal counsel.

Stertz said that he, like Mathis, initially favored hiring one law firm to represent the commission, and “if (Mathis) believes that she only wanted one legal firm representing, then she could have easily done that.” Instead, they decided to do the same as the previous commission and hire both Democratic and Republican attorneys. 

If that’s the road they were going to take, Stertz said, then they should have followed their predecessors’ lead and let each party pick its own attorney. And if Mathis thought Hauser and Mandell were too partisan, Stertz said, she should have had that conversation with her Republican colleagues.

Stertz also noted that Herrera and McNulty voted with Mathis, when they could have gotten their first choice of Democratic counsel by voting with the Republican commissioners.

“If your number one choice is legal firm A and the Republicans’ number one choice is legal firm B, and there’s comfort in those choices, why did legal firms C and D become the approved choice?” he asked.

Herrera said at the May 2011 meeting that he wasn’t getting his first choice and that he thought McNulty would say the same, but that he was “willing to negotiate and sacrifice my number one choice for someone who is equally as competent but not my number one choice.” McNulty said the combination of Ballard Spahr and Osborn Maledon would provide the commission with the best expertise.

Once the meeting adjourned, it was clear that the two factions had very different views of what had just transpired. Herrera told the Arizona Capitol Times that everyone had sacrificed, and that that was the nature of negotiating. Conversely, Freeman told the newspaper, “It boils down to this: The Democrats vetoed the Republicans’ selection.”

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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.”