Legislative control may hang in the balance as redistricting rekindles competitiveness fight

By: - October 15, 2021 8:55 am
Arizona Independent Redistricting Commission

Members of the Arizona Independent Redistricting Commission met Oct. 4, 2021, in the Phoenix city council chambers to discuss initial changes to the grid maps approved the previous month. L to R: Shereen Lerner, Derrick Watchman, Erika Neuberg, David Mehl, Douglas York. Photo by Jeremy Duda | Arizona Mirror

As the Arizona Independent Redistricting Commission draws the state’s new congressional and legislative maps, the debate over competitiveness is once again moving to the forefront. 

The decennial battle over competitiveness at the AIRC is fraught with partisan overtones. The stakes are high for both parties, especially when it comes to the legislative districts that the state will use for the next 10 years. 

For Democrats, competitiveness represents at least a potential opportunity to win control of the legislature, which has been in GOP hands for an almost unbroken stretch dating to the 1960s. More competitiveness often makes for less proportional outcomes, which aids minority parties. Republicans make up about 35% of the electorate in Arizona, while Democrats are about 32%.

Many advocates also view competitiveness as a way to get the extremes out of politics. In a district where a candidate must appeal to the center, not just to the left or the right, more moderate lawmakers are likely to get elected, they say. 

Raquel Terán, chairwoman of the Arizona Democratic Party, argued in a recent letter to party activists that the GOP’s opposition to competitiveness constituted “voter suppression.” 

“Unlike the GOP, Arizona Democrats are not afraid of the voters, we are not afraid to compete,” she said. 

Conversely, Republicans largely view Democrats’ push for competitiveness as an attempt to manipulate the map so they can win majorities in the legislature, despite being the state’s minority party.

“Their goal is to have a majority,” said Jonathan Paton, a former state lawmaker and a Republican member of the Commission on Appellate Court Appointments, which vets AIRC applicants and selects finalists for its five seats.

Republicans have historically placed great emphasis on wording in the Arizona Constitution indicating that competitiveness is less of a priority than the other five criteria that the AIRC must follow. The constitution says the commission must favor competitive districts “where to do so would create no significant detriment to the other goals.” None of the other criteria come with such a caveat.

On the other hand, Democrats often point to a 2009 Arizona Supreme Court ruling stating that the commission must consider competitiveness. However, that same Supreme Court opinion rejected an argument that the legislative map should be thrown out for a lack of competitiveness. The AIRC must consider competitiveness, but as long as it does so, the courts appear unlikely to micromanage its decisions.

A new legal argument emerges

Recent comments by Erika Neuberg, the commission’s independent chairwoman, have raised the possibility that competitiveness will be more of a focus than the AIRC has previously indicated.

Neuberg had always held fast to the interpretation that competitiveness is contingent on not hindering the other criteria. But on Oct. 4, the first time the AIRC began adjusting the lines that will eventually become the new districts, she said that in order to respect communities of interest — one of the other five criteria — the commission may need to prioritize competitiveness. Without competitive districts, communities of interest in one-party districts may be disenfranchised, she said.

Neuberg later told the Arizona Mirror that when she first began her work on the commission, she viewed the criteria as more of a hierarchy. But as she heard from Arizonans during the commission’s statewide tour, she concluded that some communities of interest are disenfranchised if the lack of competition in their districts is “too severe.”

“That rises to that higher-level constitutional criteria. So from my perspective I look at all six. If you look at a district and it’s not competitive, is there an identifiable, strong community of interest that will be forever marginalized?” Neuberg said after the commission’s Oct. 5 meeting. “I’m not focused on competitiveness in and of itself. I’m focused on how to achieve the greatest representation of all communities of interest.”

While there are differing opinions on what the Arizona Constitution does or doesn’t require when it comes to competitiveness, the courts have proven hesitant to second-guess the AIRC’s decisions on the matter. Most observers believe the courts are unlikely to strike down maps on any of the criteria except for the two that are federally mandated: population equality between districts and compliance with the Voting Rights Act.

That leaves the issue of competitiveness up to the discretion of the AIRC. How much emphasis Neuberg or the other four commissioners place on competitiveness remain to be seen. The commission is closer to the beginning of its work on its draft maps — the first drafts that will later be revised after 30 days of public review — than it is to the end. 

“I honestly feel like it’s too early to have too many expectations,” said Kendra Alvarez, the state director for All On The Line, a redistricting-centric group organized by the National Democratic Redistricting Fund.

The 2011 AIRC drew three congressional districts it deemed competitive — one that has changed parties multiple times; one that elected exclusively Democrats, but also often favored Republican presidential candidates; and one that proved to be solidly Democratic. 

Eight of the last commission’s legislative districts have elected members of both major parties at some point in the past decade, a trend that has favored Democrats more than the GOP, but has led to occasional Republican pickups in blue districts. Though Democrats were unable to achieve their elusive dream of taking the legislature, they’ve reduced the GOP to a one-vote majority in both chambers. 

Two districts were deemed competitive at the outset, but have largely shown themselves to be one-party strongholds. Pinal County-based District 8 elected a Democratic senator and two Republican representatives in its first two elections. But since then, the GOP has controlled all three of the district’s seats. And District 6, which runs from Flagstaff through the non-tribal parts of Gila and Navajo counties, was dubbed competitive when it was drawn, but has never elected a Democrat.

Easier said than done

The AIRC must abide by five other criteria besides competitiveness — equal population, the Voting Rights Act, compactness and contiguity, respect for geographic and political boundaries, and respect for communities of interest, a catchall term that encompasses any group of people with shared concerns or needs. Those requirements often conflict with each other. Because of federal mandates, the population and Voting Rights Act requirements generally take precedence. 

Colleen Mathis, the independent chairwoman of the previous commission, said she would’ve loved to see more competitiveness on both maps, but there are other criteria to consider.

“If I could’ve drawn nine districts, I would’ve … but that’s not the commission’s job,” she said of the congressional map. 

Competitiveness is more difficult to achieve in the legislative map than on the congressional side because there are fewer people to work with. And though Mathis views the criteria as equal before the law, they can’t actually be applied equally. To comply with the Voting Rights Act, the commission Mathis chaired began its work with the majority-minority districts. 

“Once you do that, there’s only so many Democrats left to distribute to other areas,” Mathis said. 

The first AIRC in 2001 encountered the same problem, said Steve Lynn, Mathis’s predecessor as independent chair. Lynn said Republicans had a voter registration edge of about 5% statewide at the time his commission drew the maps. But once the commission drew its majority-minority districts, the GOP’s advantage in the remainder of the map was about 15%, he said.

“When you have a 15% differential in registration, it is very difficult to make those districts competitive,” he said.

Andi Minkoff, one of Lynn’s Democratic colleagues from the 2001 commission, believes that the original commission could have done more to create competitive districts. Minkoff was a self-described “broken record” on the issue of competitiveness and welcomed a judge’s ruling striking down the legislative map on those grounds, though it was later overturned. 

“Every one of the criteria affects every one of the other criteria, obviously. It’s a balancing act. But the issue is that they all have to be taken into consideration,” Minkoff said. 

Population inequality between districts can also make competitiveness more difficult to achieve, Lynn said. Federal courts have traditionally allowed the population of legislative districts to deviate 5% percent above or below average, as long as it’s done for an appropriate reason, such as complying with the Voting Rights Act. In order to maximize minority voting strength the AIRC traditionally underpopulates majority-minority districts, which Lynn said creates a greater imbalance in favor of Republicans in the other parts of the map. 

Republican Commissioner David Mehl has said that 5% is too much of a differential, and he wants the population deviation between districts to be no greater than a few percentage points.

If the current commission wants to emphasize competitiveness, it has one potential advantage that its two predecessors didn’t. For decades, Arizona was one of a handful of states subject to a provision of the Voting Rights Act that required jurisdictions with a history of discriminatory practices to receive pre-approval from the U.S. Department of Justice for any changes to voting or election laws. 

The need to obtain that preemptive approval, known as “preclearance,” led previous commissions to make their majority-minority districts as unassailable as possible, including by refusing to reduce minority voting strength in any districts. But the U.S. Supreme Court lifted that requirement nationwide in 2013. 

Though Arizona is still subject to lawsuits under other provisions of the Voting Rights Act if it goes too far in diluting minority voting strength in the new districts, Minkoff said it will be easier for the AIRC to create more competitive districts without preclearance hanging over its head. 

For example, Minkoff said the 2001 commission considered a “downtown district” that would run through the downtown areas of Phoenix, Tempe and Glendale. It would have been a majority Latino district, she said. But Ed Pastor, the Democratic congressman who represented the area, threatened to file a complaint under the Voting Rights Act because it would have reduced Latino voting power, so the commission scrapped the idea. 

Franny Sharpe, who leads the Arizona Democratic Party’s redistricting efforts, also argued that the commission can draw a sufficient number of competitive districts while also adhering to the Voting Rights Act. 

“I don’t think that it’s mutually exclusive. In our current legislative map, we have strong VRA districts and we also have a number of highly competitive legislative districts. I don’t think it’s an either/or proposition … and both need to be prioritized,” she said. 

Giving a little to get a little

State Sen. Martin Quezada, a Glendale Democrat, said the Voting Rights Act may make it slightly harder for the commission to draw competitive districts, but it’s certainly not impossible. But as long as Latino voting rights are still respected, Quezada said he’s willing to support some dilution of the new majority-minority districts to achieve more competitiveness.

Quezada said the Arizona Latino Coalition for Fair Redistricting, one of the organizations that brought the lawsuit that led to the 2009 Arizona Supreme Court ruling on competitiveness, is drawing a proposed legislative map that will balance competitiveness and respect for minority voting power. 

“You may never get unanimity across the entire Latino spectrum, but I think working with those groups that are working hard to try to find that middle ground would be something that the IRC would be best served to do,” said Quezada, who has participated in several of the Arizona Latino Coalition for Fair Redistricting’s meetings. 

Lynn said some voters also have unrealistic expectations about competitiveness. He recalled a Democrat in 2001 who told the commission that she was tired of being represented only by Republicans she disagreed with. The problem was that she lived in central Mesa, a heavily Republican area that can’t easily be drawn into a competitive district. 

At recent AIRC meetings, voters from deeply conservative areas such as Cave Creek and Fountain Hills have used similar arguments, urging the commissioners to put them in competitive districts. 

There are also various definitions of competitiveness. Mathis, like many others, described a competitive district where both parties have a chance of winning. Paton argued that when Democrats talk about competitiveness, they mean a district where Republicans may sometimes win, but where Democrats are favored. 

And Lynn noted that there are factors that can change how competitive a district may be. A district may become more or less competitive based on the individual candidates a party runs. And the makeup of a district can change as well. Legislative District 18, which includes Ahwatukee and parts of Chandler, elected nothing but Republicans when it was first drawn. By the end of the decade, Democrats were sweeping its three legislative seats. 

Because voter registration is such an imperfect way to measure competitiveness, especially given the rise of independent voters, who now make up nearly a third of the electorate in Arizona, redistricting commissions often use more complex formulas based on voter performance. The current AIRC will use two metrics based on voter performance in statewide races in 2016, 2018 and 2020. 

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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.”