While the U.S. Supreme Court gave the go-ahead for states to engage in unbridled gerrymandering, the Arizona Constitution has additional protections that could prevent the kinds of ultra-partisan maps that are now deemed permissible under federal law.
Exactly how far the Arizona Supreme Court would go in enforcing those rules, however, is an unanswered question.
The U.S. Supreme Court ruled 5-4 on Thursday that it is not the role of the judiciary to set limits on how much partisan gerrymandering states can engage in. The ruling upheld congressional districts drawn by the Maryland and North Carolina legislatures.
But Arizona’s Constitution has criteria for redistricting that the U.S. Constitution lacks.
Voters in 2000 took control of redistricting away from the legislature and gave to the Arizona Independent Redistricting Commission, a five-member body appointed mostly by legislative leaders that sets the state’s congressional and legislative district boundaries every 10 years.
As a result of that voter-approved reform, the Arizona Constitution includes six criteria that the commission must consider when drawing maps. Legislative and congressional districts must comply with the U.S. Constitution and Voting Rights Act, and must have equal populations, with some latitude granted for legislative districts. To the “extent practicable” they must be geographically compact and contiguous, respect “communities of interest” and abide by geographic and political boundaries, such as city and county boundaries.
And to the extent practicable, the commission must favor competitive districts, “where to do so would create no significant detriment” to the other criteria.
Mary O’Grady, an attorney who served as counsel for the commission that drew the current district lines, said that competitiveness requirement would make the kind of maps that the U.S. Supreme Court upheld in Maryland and North Carolina illegal in Arizona. She noted that one GOP lawmaker in North Carolina publicly declared that his proposed congressional map would aid Republicans.
Even if commissioners were more discreet and didn’t make such public declarations, O’Grady noted that the public scrutiny required of the commission’s maps would lay bare such explicit partisanship.
“The court would have to look at that and say, ‘How in the world can you say they’re favoring competitive districts when you have that type of record?’” said O’Grady, who works for the law firm Osborn Maledon.
Others aren’t so confident that Arizona’s courts would enforce the criteria so strictly.
Paul Eckstein, an attorney with the firm Perkins Coie, was on the losing side of a 2009 Arizona Supreme Court ruling that challenged the Independent Redistricting Commission’s legislative map on the grounds that it didn’t have enough competitive districts. Based on that, Eckstein predicted that courts would likely reject future legal challenges stemming from the redistricting criteria in the Arizona Constitution, except for the provisions requiring equal population and prohibiting racial discrimination.
“How’s it going to be litigated? I could see the Arizona Supreme Court, particularly in its current configuration, saying, ‘Well, this is a political question and the (U.S.) Supreme Court has pronounced this … to be nonjusticiable.’ I could see them saying that pretty easily,” Eckstein said.
Attorney Joe Kanefield, who served as O’Grady’s co-counsel at the last redistricting commission, doesn’t believe the Arizona Supreme Court would be so laissez-faire about the constitutional redistricting criteria. Though the Arizona Supreme Court rejected the competitiveness lawsuit in 2009, Kanefield said it didn’t reject the competitiveness requirement as a political question that isn’t subject to judicial review.
In its 2009 ruling, the Arizona Supreme Court said the plaintiffs couldn’t simply show that a better, more competitive map was possible. After all, there are multiple requirements that sometimes conflict. Rather, they had to show that the commission failed to consider competitiveness altogether. Even if the commission’s decisions are debatable, the court said the plaintiffs didn’t demonstrate that no reasonable commission would have adopted the disputed plan.
“I think they made it difficult, and the Arizona Supreme Court is very deferential to the findings of the Arizona Independent Redistricting Commission. But that doesn’t necessarily mean those issues can’t be litigated in the future,” Kanefield said.
Kanefield penned an article for the November edition of Arizona Attorney magazine, which is published by the State Bar of Arizona, calling state constitutions the new frontier in the battle against partisan gerrymandering. He noted on Thursday that U.S. Supreme Court Chief Justice John Roberts also looked to the states in the gerrymandering ruling, pointing to independent commissions and fair district requirements as some of the remedies that states have taken.
Ironically, when the U.S. Supreme Court in 2015 upheld the constitutionality of the Arizona Independent Redistricting Commission’s authority to draw congressional districts, Roberts wrote the dissenting opinion, arguing that the U.S. Constitution granted only state legislatures with the authority to set those boundaries.