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May 25, 2020

Redistricting fraught with legal pitfalls

Arizona’s system is gaining popularity around the country.

AZ congressional districts VIEW LARGER Map of Arizona congressional districts.
Arizona Independent Redistricting Commission

The census is underway, and that means the redrawing of the state’s political lines is not far away.

In 2000, Arizona voters approved an amendment to the state constitution making a substantial change to the way congressional and legislative district boundaries are drawn. The people voted to take that power away from the legislature and give it to an independent redistricting commission.

The members of the Independent Redistricting Commission have a daunting task. They have to redraw the state’s political lines — in essence, the political power base. And they have to do it quickly.

“It is very invigorating and a stimulating, fun thing to do,” said Scott Freeman, IRC member.

The process that happens every 10 years after the census is always fraught. The last IRC was made up of two Democrats, two Republicans, including Freeman, and an independent. Immediately, there were accusations that the independent chair was in lock step with the Democrats.

“I always envisioned putting the map up on my office wall and saying I had something to do with that. I’ve got the maps but I don’t have them on the wall because I feel like I really didn’t have anything to do with how the districts look,” said Freeman.

Freeman said while the maps were being drawn people encouraged him to just walk away. But he stayed, he said, so he could have a “seat at the table” and raise questions.

The maps laying out legislative and U.S. House districts for the state must be approved by the U.S. Department of Justice before they can be used in an election. Both maps cleared the review in 2012 on their first try.

The Arizona Legislature took the commission to the court challenging the commission’s right to draw the congressional maps. At the U.S. Supreme Court, the Legislature’s lawyers pointed to the Election Clause in the U.S. Constitution that says elections are supposed to be prescribed by the Legislature. The case hinged on the definition of the word Legislature.

“Under Arizona’s constitution, the people through the initiative process have all the lawmaking authority that the Legislature has, so you have to look at this in the context of how the states structure their legislative authority. So here, we have a citizen’s initiative that gives authority to a citizen commission,” explained Mary O’Grady, attorney for the IRC who argued before the court.

The court ruled 5-4 in favor of the commission in July 2015.

The court has a more conservative makeup now, but legal experts think a similar case would end up with the same outcome.

“What we’ve seen since then, including in recent cases discussing partisan gerrymandering, was that the court was pointing to independent redistricting that was enacted by citizen initiative as the right solution for partisan gerrymandering,” said Yurij Rudensky with the Brennan Center for Justice.

Twenty-one states now use some kind of independent redistricting commission for redrawing political boundaries.

Drawing political maps will always lead to accusations of partisan gerrymandering, according to Freeman. He said the important thing is to build public trust through transparency.

“You can say, 'Look, we followed the instruction manual, this is where we ended up. If you take the map we have now you can reverse engineer it, you can look at all our steps to see what we were doing',” said Freeman.

That is not what happened with the last commission, according to Freeman. He hopes it will when the next commission, will all new members, begins work next year.

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