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CANTELME & BROWN, P.L.C.
A Professional Liability Company
3003 N. Central Avenue, Suite 600
Phoenix, Arizona 85012-2902
Tel (602) 200-0104 Fax (602) 200-0106
E-mail: djc@cb-attorneys.com / dbrown@cbattorneys.com
David J. Cantelme, Bar No. 006313
D. Aaron Brown, Bar No. 022133
Attorneys for Plaintiffs Wesley W.
Harris, LaMont E. Andrews,
Cynthia L. Biggs, Lynne F.
Breyer, Ted Carpenter, Beth K.
Hallgren, James C. Hallgren,
Lina Hatch, Terry L. Hill, Joyce
M. Hill, and Sherese L. Steffens
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-2202
Telephone: (602) 382-6000
E-Mail: mliburdi@swlaw.com
Michael T. Liburdi, Bar No. 021894)
Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Wesley W. Harris, et al.,
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Plaintiffs,
v.
Arizona Independent Redistricting
Commission, et al.,
Case No. CV 12-0894-PHX-ROS
PLAINTIFFS’ RESPONSE
OPPOSING MOTION TO
DISMISS
Assigned to District Judges Roslyn O.
Silver and Neil V. Wake and to Circuit
Judge Richard R. Clifton
Defendants.
ORAL ARGUMENT REQUESTED
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 2 of 85
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Plaintiffs hereby respond to, oppose, and respectfully request the Court to deny
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the motion to dismiss filed by Defendants Arizona Independent Redistricting
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Commission (“IRC”) and its individual members in their official capacities.
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“Independent” does not mean unaccountable. This action seeks to vindicate equal
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protection rights secured by the 14th Amendment and the equal population clause of the
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Arizona Constitution, art. 4, pt. 2, § 1(14)(B), that have been violated by the Arizona
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Independent Redistricting Commission (“IRC”).
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Plaintiffs’ votes and the votes of all other voters of all political ideologies – Republican,
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Democrat, and all others – residing in Districts 1, 5, 6, 11, 12, 14-18, 20-23, 25, and 28.
The IRC intentionally diluted
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What the IRC tries desperately to avoid is civil discovery that is bound to reveal
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what it has been struggling to hide for the entire redistricting process. No constitutional
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reason justified the vote dilution suffered by the citizens of these districts, and the IRC
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diluted the votes of the citizens of these districts solely to maximize the strength of the
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Democratic Party, an unconstitutional justification standing alone for vote dilution.
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Although there is a rebuttable presumption under federal law that population
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differentials of up to ten percent are constitutional, the Complaint states a claim for
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relief that (a) the legislative districts are not entitled to that presumption and (b) the
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presumption does not exist under Arizona’s equal population requirement.
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Accordingly, the IRC’s Motion to Dismiss (“Motion”) (Dkt. 23) should be denied.
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This Response is based on the accompanying memorandum of points and
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authorities, the Complaint, and the attachments to both, Plaintiffs’ accompanying Rule
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56(d) motion and declaration, and the Hofeller affidavit (attached as Exhibit 1 hereto),
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all of which are adopted herein by reference. Concurrently with the filing of this
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response, Plaintiffs are circulating to Defendants a request for a stipulation to file an
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amended complaint in the form of Exhibit 2 hereto. If the stipulation is agreed to,
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Plaintiffs will file the amended complaint shortly under Rule 15(a)(2), F.R.Civ.P. If it
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is rejected, Plaintiffs instead will file a motion for leave to file the proposed amended
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complaint. The amended complaint does not add new claims for relief. It does add fact
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allegations, drawn from the Hofeller affidavit, that no constitutional purpose supported
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the IRC’s dilution of the votes of the citizens residing in the 16 overpopulated districts.
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MEMORANDUM OF POINTS AND AUTHORITIES
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1.
INTRODUCTION.
Plaintiffs all have suffered dilution of their votes. That is not denied, and it is a
grave offense in a democracy. As the Supreme Court held 49 years ago,
Once the geographical unit for which a representative is to be chosen is
designated, all who participate in the election are to have an equal vote—
whatever their race, whatever their sex, whatever their occupation,
whatever their income, and wherever their home may be in that
geographical unit. This is required by the Equal Protection Clause of the
Fourteenth Amendment. The concept of “we the people” under the
Constitution visualizes no preferred class of voters but equality among
those who meet the basic qualifications. The idea that every voter is equal
to every other voter in his State, when he casts his ballot in favor of one
of several competing candidates, underlies many of our decisions.
Gray v. Sanders, 372 U.S. 368, 379-80 (1963).
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The heart of this case is whether the Fourteenth Amendment and the Arizona
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Constitution will tolerate the IRC’s vote dilution. A presumption of compliance with
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the Fourteenth Amendment arises from principles of states’ rights where the deviations
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from equality fall below ten percent, but the function of the presumption is merely to
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shift the burden of proof to Plaintiffs. Nonetheless, at the beginning of the case, the
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Court must take the allegations of the complaint as true, and await proof after discovery
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is complete. Therefore, the only question before the Court is whether the complaint's
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allegations, assumed true, make out a case of violation of the one-person/one vote rule
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and the Arizona Constitution. They do. The IRC diluted Plaintiffs’ votes and the votes
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of all citizens residing in the overpopulated districts solely to maximize the Democratic
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Party’s representation in the Legislature. That is not a constitutional basis to depart
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from population equality. Thus, the motion to dismiss must be denied.
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2.
STANDARD OF REVIEW UNDER RULE 12(b)(6).
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While a complaint cannot rely on “labels or conclusions” or a “formulaic
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recitation of the elements of a cause of action,” the allegation of any specific facts is
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unnecessary, and the minimal requirement is that Plaintiffs give the IRC “fair notice” of
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what the claim is about and the facts that it rests on. Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 555 (2007). On a motion under Rule 12(b)(6), “All factual allegations set
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forth in the complaint are taken as true and construed in the light most favorable to
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[p]laintiffs.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Generally,
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the court is limited to the four corners of the complaint in testing the sufficiency of the
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allegations to state a valid claim for relief. Id. (internal quotation marks omitted). “A
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court may not take judicial notice of a fact that is subject to reasonable dispute.” Fed.
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R. Evid. 201(b); Lee, 250 F.3d at 689.
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3.
ONE-PERSON/ONE-VOTE IN LEGISLATIVE REDISTRICTING.
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The substantive analysis begins with Reynolds v. Sims, 377 U.S. 533 (1964), one
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of the first cases to apply the one-person/one-vote rule of the Equal Protection Clause to
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legislative redistricting. There the Supreme Court held:
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By holding that as a federal constitutional requisite both houses of a state
legislature must be apportioned on a population basis, we mean that the
Equal Protection Clause requires that a State make an honest and good
faith effort to construct districts, in both houses of its legislature, as nearly
of equal population as is practicable. We realize that it is a practical
impossibility to arrange legislative districts so that each one has an
identical number of residents, or citizens, or voters. Mathematical
exactness or precision is hardly a workable constitutional requirement.
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Id. at 577. Demographics and technology have evolved in the 48 years since Reynolds
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was decided, and now it indeed is possible to draw districts of mathematical exactness,
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as the IRC itself proved with the congressional districts. At any rate, in the same term,
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the Supreme Court set forth the core principle that controls regardless of the level of
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technology available to the map drawers:
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Rather, the proper judicial approach is to ascertain whether, under the
particular circumstances existing in the individual State whose legislative
apportionment is at issue, there has been a faithful adherence to a plan of
population-based representation, with such minor deviations only as may
occur in recognizing certain factors that are free from any taint of
arbitrariness or discrimination.
Roman v. Sincock, 377 U.S. 695, 710 (1964). Over time, and after a series of decisions
involving deviations from equality, the Supreme Court finally settled on a ten percent
rule; plans with districts above ten percent make out a prima facie case of
discrimination, and those below are presumed constitutional:
Our decisions have established, as a general matter, that an apportionment
plan with a maximum population deviation under 10% falls within this
category of minor deviations. See, e.g., Connor v. Finch, 431 U.S. 407,
418, 97 S.Ct. 1828, 1835, 52 L.Ed.2d 465 (1977); White v. Regester, 412
U.S. 755, 764, 93 S.Ct. 2332, 2338, 37 L.Edd.2d 314 (1973). A plan with
larger disparities in population, however, creates a prima facie case of
discrimination and therefore must be justified by the State.
Brown v. Thomson, 462 U.S. 835, 842 (1983). Still, the guiding principle remained:
The ultimate inquiry, therefore, is whether the legislature's plan may
reasonably be said to advance [a] rational state policy and, if so, whether
the population disparities among the districts that have resulted from the
pursuit of this plan exceed constitutional limits.
Id. (internal quotation marks omitted.)
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The Supreme Court has described policies that justify a deviation from equality:
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Any number of consistently applied legislative policies might justify
some variance, including, for instance, making districts compact,
respecting municipal boundaries, preserving the cores of prior districts,
and avoiding contests between incumbent Representatives. As long as the
criteria are nondiscriminatory, these are all legitimate objectives that on a
proper showing could justify minor population deviations.
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Karcher v. Daggett, 462 U.S. 725, 740 (1983) (citation omitted.) While Karcher was a
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congressional redistricting case, its identification of state policies justifying deviation
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from equality has been applied in legislative cases as well. An example is Marylanders
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for Fair Representation, Inc. v. Schaefer, 849 F.Supp. 1022, 1031 (D.Md. 1994) (three-
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judge court) (“Given the more stringent population equality standard in congressional
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redistricting, it is clear that any state policies that are recognized by the Court as
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sufficient to depart from absolute equality should also be sufficient to depart from the
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less stringent requirement of ‘substantial’ population equality.”) (emphasis in original).
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Arizona hones the Karcher policies to an even sharper edge. ARIZ. CONST. art.
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4, pt. 2, §1(14) sets the IRC’s start point at “creation of districts of equal population in
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a grid-like pattern across the state.” Arizona Minority Coalition for Fair Redistricting v.
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Arizona Independent Redistricting Commission, 220 Ariz. 587, 597, ¶ 30, 208 P.3d 676,
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686 (2009) (emphasis added). The Arizona Constitution then limits the IRC’s authority
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to adjusting the grid map for the six criteria set forth in §1(14)(A) – (F), including a
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requirement that districts consist of equal population to the extent practicable. Arizona
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Minority Coalition, 220 Ariz. at 597, ¶ 31, 208 P.3d at 686. The IRC has no authority
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to adjust the grid map for any other purpose. Id. at ¶¶ 31-33.
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4.
THE TEN PERCENT RULE.
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Two questions must be decided in this case regarding what the ten percent rule
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means. How the Court decides these questions forms the lens through which it should
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view the complaint’s factual allegations. The first is whether ten percent marks per se
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constitutionality or merely a presumption of constitutionality.
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To this end, the IRC suggests in its motion at 8:24-28, n.7, that the ten percent
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rule creates a “safe harbor” for legislative plans, citing Fund for Accurate and Informed
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Representation, Inc. v. Weprin, 796 F.Supp. 662, 688 (N.D.N.Y.) (three-judge court),
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summarily aff’d, 506 U.S. 1017 (1992). This assertion lacks any legal support. Strictly
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speaking any suggestion in Weprin of a ten percent per se rule is dicta, because a per se
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rule was not essential to the holding. There Plaintiffs made no claim of unconstitutional
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state policy driving the deviations.
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At any rate, most courts, including several cited by the IRC in its motion at 9:1-
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11, have rejected a per se rule and have deemed the ten percent rule to create only a
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presumption of constitutionality. See Rodriguez v. Pataki, 308 F.Supp.2d 346, 364-65
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(E.D.N.Y. 2003) (three-judge court) (“We conclude, with Marylanders, 849 F.Supp. at
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1032, that a plan within the ‘ten percent rule’ is not per se immune from judicial review.
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No decision explicitly adopts the per se rule. Weprin - the case that comes closest to
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stating the rule - did not involve a plaintiff claiming unconstitutional or irrational state
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policies.”); Montiel v. Davis, 215 F.Supp.2d 1279, 1286 (S.D.Ala. 2002) (three-judge
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court) (quoting Daly v. Hunt, 93 F.3d 1212, 1220 (4th Cir. 1996) (“The 10% de minimis
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threshold recognized in Brown does not completely insulate a state’s districting plan
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from attack of any type. Instead, that level serves as the determining point for allocating
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the burden of proof in a one person, one vote case.”); Marylanders, 849 F.Supp. at 1032
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(“For these reasons, this Court holds that a plaintiff could, with appropriate proof,
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successfully challenge a redistricting plan with a maximum deviation below ten
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percent.”); Bonneville County v. Ysura, 129 P.3d 1213, 1217 (Idaho 2005) (“We say
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‘presumptively’ constitutional because a plan whose maximum population deviation is
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less than ten percent may nonetheless be found unconstitutional if a challenger can
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demonstrate that the deviation results from some unconstitutional or irrational state
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purpose.”). See also Cox v. Larios, 542 U.S. 947, 949 (Stevens, J. and Breyer, J.
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concurring) (“In challenging the District Court’s judgment, appellant invites us to
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weaken the one-person, one-vote standard by creating a safe harbor for population
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deviations of less than 10 percent, within which districting decisions could be made for
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any reason whatsoever. The Court properly rejects that invitation.”)
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The second question is, if the ten percent rule creates only a presumption of
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constitutionality, what proof must a plaintiff adduce to overcome the presumption and
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establish a violation of the one-person/one-vote rule in cases with deviations under ten
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percent? A review of recent court decisions discloses that a plaintiff generally must
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prove that no constitutional state interest justifies a departure from equality.
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For example, following the holdings of Roman, 377 U.S. at 710, and Brown, 462
U.S. at 843, the Court in Larios v. Cox, defined the required proof as follows:
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The Supreme Court explained in Roman that “the proper judicial
approach” to a one person, one vote claim is “to ascertain whether, under
the particular circumstances existing in the individual State whose
legislative apportionment is at issue, there has been a faithful adherence to
a plan of population-based representation, with such minor deviations
only as may occur in recognizing certain factors that are free from the
taint of arbitrariness or discrimination.” 377 U.S. at 710, 84 S.Ct. at 1458,
(involving major deviations). The Supreme Court reiterated this sentiment
in Brown, indicating that the “ultimate inquiry” is “whether the
legislature's plan may reasonably be said to advance [a] rational state
policy and, if so, whether the population disparities among the districts
that have resulted from the pursuit of this plan exceed constitutional
limits.” 462 U.S. at 843, 103 S.Ct. at 2696, (citations and quotation marks
omitted) (alteration in original) (involving major deviations).
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300 F.Supp.2d 1320, 1341 (N.D.Ga. 2004), summarily aff’d, 542 U.S. 947 (2004). See
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also Bonneville County, 129 P.3d at 1217 (“Instead, the challenger holds the burden to
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prove that that the deviation resulted from an unconstitutional or irrational state purpose
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or that the strength of voters' votes has been diluted.”)
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Other courts have worded the test differently but with the same essence:
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To prevail, though, the plaintiffs have the burden of showing that the
deviation in the plan results solely from the promotion of an
unconstitutional or irrational state policy. Thus, the plaintiffs ... must
demonstrate ... that the asserted unconstitutional or irrational state policy
is the actual reason for the deviation. In addition, the plaintiff must prove
that the minor population deviation is not caused by the promotion of
legitimate state policies.
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Marylanders for Fair Representation, 849 F.Supp. at 1032 (emphasis in original)
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(citation omitted.) Accord, Rodriguez, 308 F.Supp at 365; Montiel, 215 F.Supp.2d at
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1286. If a plaintiff has proven that no constitutional policy supports deviations from
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equality, it follows that an unconstitutional policy caused them.
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The Arizona Constitution puts a gloss over the required proof, because it limits
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the IRC’s authority to depart from the strict equality of the grid map to the six criteria
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set forth by the voters in Proposition 106, codified at ARIZ. CONST. art. 4, pt. 2, §1(14).
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The IRC is not authorized to depart from these six criteria. Arizona Minority Coalition,
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220 Ariz. at 597, ¶ 31, 208 P.3d at 686. Thus, when the Court views the IRC’s reasons
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for departing from the equality required by the one-person/one-vote rule and from the
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equality required by the Grid Map, it must draw the lens even tighter to focus on these
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six criteria only. Nothing else is a legitimate interest that the IRC could pursue.
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PLAINTIFFS’ FOURTEENTH AMENDMENT CLAIM FOR RELIEF.
The heart of Plaintiffs’ Fourteenth Amendment claim for relief, Complaint ¶¶
134-41, is that the IRC could have achieved equality of populations among legislative
districts, as it did with congressional districts, and as it was required to do initially with
the Grid Map, but that it deliberately refused to do so, and that its refusal was neither
required by nor made to satisfy the six criteria set forth in ARIZ. CONST. art. 4, pt. 2, §
1(14). See Complaint at ¶¶ 114-41. Instead, the IRC’s sole reason for its deviations
from population equality was to “maximize the number of Democratic districts.”
Complaint at ¶ 1. See also Complaint at ¶¶ 108-41. That is not a “faithful adherence to
a plan of population-based representation, with such minor deviations only as may
occur in recognizing certain factors that are free from any taint of arbitrariness or
discrimination.”
Roman, 377 U.S. at 710.
Thus, standing alone, maximizing the
Democratic Party strength in legislative elections it is not a constitutional goal. See
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Larios, 300 F. Supp.2d at 1342 (“The record makes abundantly clear that the population
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deviations in the Georgia House and Senate were not driven by any traditional
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redistricting criteria such as compactness, contiguity, and preserving county lines.”)
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What’s more, this is not a situation in which politics has merely crept into or
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influenced district drawing. See, e.g., Gaffney v. Cummings, 412 U.S. 735, 752 (1973)
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It is one in which Plaintiffs have alleged that the sole reason for the dilution of their
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votes and of the votes of all other citizens of the identified over-populated districts was
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to maximize the number of Democratic districts. Complaint at ¶¶ 108-41. Plaintiffs
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have specifically alleged that compactness, contiguity, communities of interest,
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competitiveness, respecting County, City, and Town lines, or any other of criteria set
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forth in ARIZ. CONST. art. 4, pt. 2, §1(14) caused the population deviations from
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equality. (For example, Regarding competitiveness, the Court can take judicial notice of
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the Secretary of State’s records from the 2010 election and for this year reflecting that
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the number of candidates and contested races declined. http://www.azsos.gov/election.
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While the complaint is sufficient to beat back the motion, this is proven as well by the
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Hofeller affidavit at ¶¶ 51-55, if the Court treats the motion as under Rule 56.
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That is not a constitutional policy, either under the Fourteenth Amendment or
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under ARIZ. CONST. art. 4, pt. 2, §1(14). Thus, while Plaintiffs modeled this claim for
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relief in part after Larios, 300 F.Supp.2d at 1341, Complaint at ¶ 136, the complaint
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equally would satisfy Rodriguez, 308 F.Supp.2d at 365, and Marylanders, 849 F.Supp.
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at 1032, because the deviations “in the plan result[] solely from the promotion of an
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unconstitutional or irrational state policy.”
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6.
VOTING RIGHTS DO NOT JUSTIFY VOTE DILUTION IN THIS CASE.
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Plaintiffs have alleged that none of the Arizona Constitution’s six criteria caused
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the IRC to dilute their votes. Complaint at ¶¶ 108-41. In response, the IRC claims that
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counsel Bruce Adelson advised it that it could under-populate “Voting Rights districts
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relative to other districts to help ensure that the map would not retrogress and meet the
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Commission’s burden under Section 5 of the Voting Rights Act.” Motion at 5:12-16.
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[The IRC’s reliance on an advice-of-counsel defense waives the attorney-client
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privilege. Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed.Cir. 2005).]
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Mr. Adelson allegedly gave this advice on November 29, 2011, at the “first meeting
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concerning adjustments to the draft map.” Motion at 5:12-16. This argument is outside
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the complaint and thus not now proper for consideration. What’s more, no correlation
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exists between satisfying Voting Rights Act (“VRA”) section 5 and these districts’
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underpopulations.1 Specifically, no significant improvement in minority VAP occurred
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in the VRA districts between the draft map and the final map. District 2 HVAP
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dropped by 9.6%. HVAP in Districts 3 and 27 marginally declined. HVAP marginally
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improved in Districts 4, 19, and 29. Native American VAP increased marginally in
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District 7. Yet the IRC’s under-population of all these districts significantly worsened:
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Dist.
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2
Draft 212,863
Final 204,615
Deviation
from Ideal
Draft -204
Final -8452
3
Draft 210,016
Final 204,613
Draft -3051
Final -8454
↓5403
51.2%
50.1%
↓1.1%
4
Draft
Final
Draft
Final
214,082
204,143
212,096
207,088
Draft +1014
Final -8924
Draft -971
Final -5979
↓9938
53.7%
55.7%
↑2.0%
↓5008
60.0%
60.4%
↑0.4%
Draft 208,413
Final 204,195
Draft -4654
Final -8872
↓4218
53.7%
52.1%
↓1.6%
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17
18
19
20
19
21
22
27
23
Population
Population
Draft
Change
VAP %
↓8248
61.4%
Final
VAP %
52.8%
VAP
Change
↓9.6%
24
25
26
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All of this is proven as well by the Hofeller affidavit at ¶¶ 13-51.
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Draft 212,258
Final 211,067
Draft -809
Final -2000
↓1191
61.7%
61.9%
↑0.2%
30
Draft 207,918
Final 207,763
Draft -5149
Final -5304
↓155
50.7%
50.7%
−−−
7
Draft 210,314
Final 203,026
Draft -2753
Final -10,041
↓7288
61.9%
63.1%
↑1.2%
2
3
4
5
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Having achieved no significant improvement in minority VAP in the VRA
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districts as a result of the deliberate shrinkage of populations in these districts, the IRC
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was able to achieve a significant partisan change in District 8. The IRC flipped District
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8, centered in Pinal County, from a district in which Republicans had a slight
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registration edge to one in which Democrats had a commanding registration edge.
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Specifically, District 8’s voter registration composition went from the Draft Map’s
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figures of 36.2% Republican, 32.0% Democrat, and 31.8% other, to the Final Map’s
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figures of 28.5% Republican, 38.1% Democrat, and 33.4% other. This came at the cost
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of dropping District 8’s population from 216,330 (3262 over ideal) in the Draft Map to
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208,422 (4645 below ideal) in the Final Map, or a total drop of 7907 in population.
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Similarly, in Maricopa County, the IRC marginally strengthened the Democrat
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edge in Districts 24. District 24’s registration percentages went from the Draft Map’s
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25.3% Republican, 38.4% Democrat, and 36.3% other, to the Final Map’s 24.8%
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Republican, 39.1% Democrat, and 36.1% other. Democrat registration percentage went
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up 0.7% and Republican and other percentages went down 0.5% and 0.2% respectively.
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Yet one of the costs was to drop District 24’s population from 213,582 (514 over ideal)
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in the Draft Map to 206,659 (6408 below ideal) in the Final Map, or a 6922 total drop.
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In paragraph 122 of the Complaint, Plaintiffs allege:
Yet there are a number of whole or split precincts on the boundaries of
these seven Hispanic districts containing about 90,000 persons and having
very high percentages of Hispanic adults. These highly Hispanic
precincts have been deliberately fragmented off these seven districts to
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use their Democratic votes to shore up the partisan composition of
neighboring Democratic-plurality districts or to directly or indirectly
weaken Republican-plurality districts.
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The IRC does not deny these allegations. Rather, it wrongly alleges that to include
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some of these voters into the Hispanic VRA districts would constitute packing. Motion
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at 11:8-19. It is not packing to start with districts of equal population in compliance
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with the one-person/one-vote rule, to perform a racial bloc voting analysis to determine
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the right percentage of Citizen HVAP necessary for Latinos to elect the candidate of
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their choice, and to adjust the VRA districts as necessary to reach the requisite Citizen
9
HVAP. To do so complies with both the one-person/one-vote rule and VRA section 5.
10
Both principles derive from the Fourteenth Amendment’s equal protection clause,
11
which cannot be at war with itself. But the IRC wanted to peel off Hispanic voters
12
from the VRA districts and shove them into adjacent White districts to increase
13
Democrat voting strength therein. In the Tucson area, the IRC siphoned off Hispanic
14
voters from Districts 2 and 3 and poured then into Districts 9 and 10. See Complaint ¶
15
122. In the Phoenix area, it drew them from Districts 19, 27, 29, and 30, and moved
16
them into Districts 24 and 26. Id. Attached as Exhibit 3 is a chart setting forth the
17
extent to which the IRC went to overpopulate the 16 Republican districts and to dilute
18
the votes of all voters in these districts – Republican, Democrat, and other.
1
19
To buttress its packing defense, the IRC alleges that Districts 24 and 26 are
20
Hispanic VRA Districts. Motion at 10:17-18, and at 11:20-28. For this purpose, it cites
21
to its Exhibit 1, at 76-77. There (p. 76) the IRC represented to DOJ that its Final Plan
22
contained “eleven majority-minority districts.” Among these are districts 24 and 26.
23
But these are not majority-minority districts.
24
respectively 34.1% and 32.0%, and that is not adjusting for Citizen HVAP, which
25
always is lower. The non-Hispanic White populations in these districts total 52.4% and
26
52.3% respectively. Thus, these are at most influence districts. Bartlett v. Strickland,
12
HVAP in District 24 and 26 total
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 14 of 85
1
556 U.S. 1, 13 (2009). But VRA Ҥ 2 does not require the creation of influence
2
districts.” Id.
3
deliberately creating influence districts. Id. at 21.
What’s more, the equal protection clause prohibits the IRC from
4
The true nature of these districts is revealed by the candidates who filed for
5
office in them. The Court can take judicial notice of the Secretary of State’s records,
6
which indicate that the candidates who filed by the deadline for the Democratic
7
nominations for state Senate from District 24 are former Senator Ken Cheuvront and
8
Katie Hobbs and for the state House are incumbents Chad Campbell and Lela Alston as
9
well as Jean Cheuvront-McDermott and Tom Nerini. From District 26, they are Ed
10
Ableser for the Senate, and Andrew Sherwood and Juan Mendez for the House. See
11
Secretary
12
http://www.azsos.gov/election/2012/Primary/FullListing.htm. Given these are at most
13
influence districts, it is no surprise that only one Hispanic is running in them.
14
7.
of
State’s
2012
Primary
Election
full
listing,
found
at
THIS IS A ONE-PERSON/ONE-VOTE CASE.
15
The IRC creates a straw-man argument: “Plaintiffs’ case is premised entirely on
16
alleged political discrimination that supposedly resulted in a legislative map that favors
17
Democrats over Republicans.” Motion at 12:2-4. That is not the case at all. The
18
concern is not whether the map favors one political party over another. Political parties
19
do not have standing. Rather, this is a one-person/one-vote case. Specifically, Plaintiffs
20
allege that the IRC diluted their votes and the votes of all citizens residing in the over-
21
populated districts for no constitutional reason. None of the Arizona Constitution’s six
22
redistricting criteria justified the overpopulation. The IRC cannot pursue any other
23
purpose in adjusting the Grid Map’s 30 equal districts. Plaintiffs have alleged and can
24
prove the motive was to maximize Democrat strength in the Legislature. Yet Plaintiffs
25
are not bound to prove that such was the IRC’s motive. Plaintiffs need only prove that
26
no constitutional goal justified the overpopulation of the 16 Republican districts and the
13
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 15 of 85
1
underpopulation of the 11 Democrat districts.
The elimination of all plausible
2
constitutional goals as the justification for departure from equality necessarily leaves
3
only an unconstitutional goal, whether it may be maximizing Democrat strength or
4
some other reason. Roman, 377 U.S. at 710; Larios, 300 F.Supp.2d at 1342.
5
In any event, while this is more than a political gerrymandering case, its
6
political-gerrymandering allegations do state a claim for relief and remain viable. In
7
Jubilier v. Vieth, 541 U.S. 267 (2004), Justice Scalia could not command a majority to
8
abandon the political gerrymandering claim recognized in Davis v. Bandemer, 478 U.S.
9
109 (1986). The difficulty with Bandemer has been in articulating a standard for
10
determining a political gerrymander. Jubilier, 541 U.S. at 307-08. Plaintiffs need not
11
solve the problem of identification standards generally. It is enough to prove that it
12
occurred in this case, and this case does not suffer from an identification flaw. The
13
overpopulation of the 16 Republican districts and the underpopulation of the 11
14
Democrat districts for no constitutional reason is too plain. As Justice Kennedy wrote in
15
his concurrence in Jubilier,
16
17
18
19
20
21
22
23
24
A determination that a gerrymander violates the law must rest on
something more than the conclusion that political classifications were
applied. It must rest instead on a conclusion that the classifications,
though generally permissible, were applied in an invidious manner or in a
way unrelated to any legitimate legislative objective.
541 U.S. at 307. The complete lack of any constitutional justification for the vote
dilution and overpopulation of districts satisfies the standards problem plaguing political
gerrymander cases, creates the “something more” that Justice Kennedy identified in his
Jubilier concurrence, and is what separates this case from Rodriguez, 308 F.Supp.2d at
364-65; Cecere v. County of Nassau, 274 F.Supp.2d 308 (E.D.N.Y. 2003); and Kidd v.
Cox, 2006 WL 1341302 (N.D.Ga. 2006) (three-judge court).
25
26
14
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 16 of 85
1
8.
ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) requires that “state legislative districts shall
2
3
4
5
6
7
8
9
10
11
12
13
14
15
have equal population to the extent practicable.” The IRC argues that this section
requires no more than the ten percent presumption attending the Fourteenth
Amendment’s one-person/one vote rule. Motion at 14 18-25. For this proposition, it
cites dicta from Arizona Minority Coalition, 220 Ariz. at 597, ¶ 32, 208 P.3d at 686,
“These goals [§ 1(14)(A) – (B)], which require compliance with the Federal
Constitution and federal statutes, are only as flexible as the federal requirements permit,
and compliance with these goals can be decided by a court as a matter of law.” In the
same paragraph, the Supreme Court acknowledged that, “The Coalition does not
challenge the Commission's compliance with these goals.”
18
19
20
21
22
23
24
25
26
That acknowledgment
necessarily renders the preceding observation dicta with no precedential effect. See
Town of Chino Valley v. City of Prescott, 131 Ariz. 78, 81, 638 P.2d 1324, 1327 (1981)
(“Dictum thrice repeated is still dictum. It is a court’s statement on a question not
necessarily involved in the case and, hence, is without force of adjudication.”)
The only way to give meaning to the equal population clause of ARIZ. CONST.
16
17
THE ARIZONA CONSTITUTION’S EQUAL POPULATION CLAUSE.
art. 4, pt. 2, § 1(14)(B) is to hold that it sets a stricter standard than ten percent
presumption rule of the Fourteenth Amendment. Otherwise, the equal population clause
is redundant, which would violate the principle of statutory construction that “[w]hen
possible, [to] interpret statutes to give meaning to every word.” State v. Pitts, 178 Ariz.
405, 407, 874 P.2d 962, 964 (1994).
9.
THE EVIDENCE SUBMITTED WITH THE IRC’S MOTION MAY NOT
BE CONSIDERED ON A MOTION TO DISMISS.
Courts generally should not consider matters outside of the pleadings on a Rule
12(b)(6) motion to dismiss without converting the motion to one for summary judgment
under Rules 12(d) and 56. Lee, 250 F.3d at 688; see also Hamilton Materials, Inc. v.
Dow Chemical Co., 494 F.3d 1203, 1207 (9th Cir. 2007). The IRC attempts to use the
15
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 17 of 85
1
narrow “judicial notice” exception to avoid recasting their motion as one for summary
2
judgment. In their motion, the IRC Defendants seek judicial notice of the truth of
3
cherry-picked statements recorded in hearing transcripts. But under Federal Rule of
4
Evidence 201(b), the court may only take judicial notice of facts on a motion for
5
summary judgment that are “not subject to reasonable dispute.” This is one of the
6
reasons why the Ninth Circuit reversed an order of dismissal in Lee, holding that the
7
district court improperly took judicial notice of disputed facts against the plaintiff that
8
were associated with his wavier of extradition document. Id. at 690.
9
The judicial notice exception does not apply here because Plaintiffs vigorously
10
dispute the IRC’s proffered facts, which are central to the outcome in this case.2 See id.
11
The IRC’s motion self-servingly selects excerpts from its transcripts in order to avoid
12
discovery. As Plaintiffs have set forth in detail above, the Complaint states cognizable
13
claims for relief and they are entitled to conduct discovery into the IRC’s operations.
14
10.
THE IRC’S RULE 8 ARGUMENT FAILS.
15
The IRC’s Rule 8 argument seems more like a rant than a legitimate legal basis
16
for dismissal. The Complaint complies with Rule 8(a) because it identifies who is being
17
sued, the theories of relief asserted, the factual supporting those theories, and provides
18
sufficient detail to guide discovery. See Mendiondo v. Centinela Hosp. Med. Ctr., 521
19
F.3d 1097, 1105 n.4 (9th Cir. 2008) (“[T]he complaint provides fair notice of the
20
wrongs allegedly committed by defendants and does not qualify as overly verbose,
21
22
23
24
25
26
2
The IRC (at 3) cites Mullis v. U.S. Bankr. Ct., 828 F.2d 385, 388 (9th Cir. 1987), for
the proposition that the “court need not accept as true allegations that contradict facts
which may be judicially noticed.” Mullis does not so hold, and the IRC overstates what
the case does hold. There, the Ninth Circuit merely recognized that facts subject to
judicial notice may be considered on a motion to dismiss. That plows no new ground,
and it lends no support to the IRC’s view that the Court can take judicial notice of facts
that are in dispute and decide them against Plaintiffs on a motion to dismiss for failure
to state a claim. Even on a motion for summary judgment, the Court cannot decide
disputed facts, which are reserved for resolution by the trier of fact after the parties are
allowed a fair opportunity to discover facts supporting their case.
16
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 18 of 85
1
confusing, or rambling.”) The IRC’s motion demonstrates that they are capable of
2
understanding the claims asserted against them, and the Secretary of State’s ability to
3
answer the Complaint emphasizes this point.
4
The Complaint alleges that from day one, the IRC operated with a political
5
agenda to systematically distribute the voting population in a manner that advantaged
6
one political party above all others. In so doing, the Complaint sets forth, in detail,
7
factual allegations that show the IRC was motivated by political animus and bias in
8
favor of Democratic dominance. Taken together, the factual allegations showing that
9
the 3-member IRC coalition of Defendants Mathis, McNulty, and Herrera engineered
10
the redistricting process to accomplish this agenda by: (a) depriving the Republican
11
Commissioners the counsel of their choice; (b) selecting a mapping consultant with
12
strong ties to the national Democratic party; and (c) with respect to Defendant Mathis,
13
concealing her partisan allegiances from the public.
14
A complaint’s length is not reason enough to warrant dismissal under Rule 8, see
15
Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (holding
16
“that verbosity or length is not by itself a basis for dismissing a complaint based on Rule
17
8(a)”), and this Complaint does not at all resemble the complaints identified in the
18
IRC’s cited cases. The Court should therefore reject this argument.
19
11.
CONCLUSION.
20
The IRC would have this Court believe that it is wholly unaccountable to any
21
other authority on redistricting matters. The rights at issue are too important allow three
22
out of five unelected individuals to have free reign over one of the most critical political
23
functions performed by government. Redistricting affects the voting rights of every
24
Arizona voter, particularly because decisions made today will last a decade. For these
25
reasons, or any of them, the Court should deny the motion to dismiss and allow the case
26
to proceed to discovery.
17
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 19 of 85
1
2
RESPECTFULLY SUBMITTED on June 25, 2012.
3
CANTELME & BROWN, P.L.C.
4
5
By: /s/
David J. Cantelme, SBN 006313
3003 N. Central Avenue, Suite 600
Phoenix, AZ 85012
Tel (602) 200-0104
Fax (602) 200-0106
E-mail: djc@cb-attorneys.com
6
7
8
Attorneys for Plaintiffs Wesley W. Harris, LaMont E.
Andrews, Cynthia L. Biggs, Lynne F. Breyer, Ted
Carpenter, Beth K. Hallgren, James C. Hallgren,
Lina Hatch, Terry L. Hill, Joyce M. Hill, and Sherese
L. Steffens
9
10
11
12
SNELL & WILMER L.L.P.
13
14
By: /s/
Michael T. Liburdi, SBN 021894
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-2202
Telephone: (602) 382-6000
Fax: (602) 382-6070
E-Mail: mliburdi@swlaw.com
15
16
17
18
Attorneys for Plaintiffs
19
20
21
22
23
24
CERTIFICATE OF SERVICE
I hereby certify that on June 25, 2012, I electronically transmitted the foregoing
document to the Clerk’s Office using the CM/ECF System for filing and transmittal of
a notice of electronic filing to the EM/ECF registrants appearing in this case.
/s/ Samuel Saks
25
26
18
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 20 of 85
EXHIBIT 1
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 21 of 85
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 22 of 85
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Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 41 of 85
EXHIBIT 2
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 42 of 85
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
CANTELME & BROWN, P.L.C.
A Professional Liability Company
3003 N. Central Avenue, Suite 600
Phoenix, Arizona 85012-2902
Tel (602) 200-0104 Fax (602) 2000106
E-mail: djc@cb-attorneys.com /
dbrown@cb-attorneys.com
David J. Cantelme, Bar No. 006313
D. Aaron Brown, Bar No. 022133
Attorneys for Plaintiffs Wesley W.
Harris, LaMont E. Andrews,
Cynthia L. Biggs, Lynne F.
Breyer, Ted Carpenter, Beth K.
Hallgren, James C. Hallgren,
Lina Hatch, Terry L. Hill, Joyce
M. Hill, and Sherese L. Steffens
SNELL & WILMER L.L.P.
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-2202
Telephone: (602) 382-6000
E-Mail: mliburdi@swlaw.com
Michael T. Liburdi, Bar No. 021894)
Attorneys for Plaintiffs
17
UNITED STATES DISTRICT COURT
18
DISTRICT OF ARIZONA
19
20
Wesley W. Harris, et al.,
Plaintiffs,
21
22
23
24
Case No. CV 12-0894-PHX-ROS
PLAINTIFFS’ FIRST AMENDED
COMPLAINT
v.
Arizona Independent Redistricting
Commission, et al.,
Defendants.
25
26
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 43 of 85
1
2
For their first amended complaint, Plaintiffs Wesley W. Harris, LaMont E.
3
Andrews, Cynthia L. Biggs, Lynne F. Breyer, Ted Carpenter, Beth K. Hallgren, James
4
C. Hallgren, Lina Hatch, Terry L. Hill, Joyce M. Hill, Karen M. MacKean, and Sherese
5
L. Steffens, allege as follows:
6
7
OVERVIEW
1.
By any objective standard, the work of the majority on the Arizona
8
Independent Redistricting Commission (“IRC”) has been a failure.
9
competitive districts than the number drawn in 2002.
It drew fewer
It designed bizarre-shaped
10
districts, glaring examples being Legislative District 6, which cobbles together parts of
11
Coconino, Yavapai, Gila, and Navajo Counties, and Congressional District 4, which
12
stretches from Bullhead City to Florence to Yuma. It violated section 2 of the Voting
13
Rights Act by depriving minorities of the number of legislative districts the Act required
14
for them.
15
populated Democrat-plurality, the obvious goal being to maximize the number of
16
Democratic districts.
17
run against each other. The selection of the putatively independent chairperson was
18
marred by material omissions from her application and from her interview. Had the
19
chairperson disclosed her connections to the Democratic Party, she never would have
20
been selected as chairperson. The IRC unfortunately quickly polarized around party
21
lines, with the nominally independent chairperson siding with the two Democrats on
22
every substantive issue, including the selection of a partisan Democratic firm as
23
mapping consultant. The IRC’s work was late, and it wasted public money. When the
24
voters passed Proposition 106 in 2000 to create the IRC, they wanted to take politics out
25
of redistricting.
26
Democrats.
It systematically overpopulated Republican-plurality districts and under-
It packed Republican incumbents into districts to force them to
This IRC put politics front and center – specifically to favor
In doing so, as described below, it violated the one-person/one-vote
2
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 44 of 85
1
requirement of the equal protection clause of the Fourteenth Amendment to the United
2
States Constitution, Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga. 2004), aff’d sub nom.
3
Cox v. Larios, 542 U.S. 947 (2004), and the equal population requirement of ARIZ.
4
CONST. art 4, pt. 2, §1(14)(B).
5
6
NATURE OF THE ACTION
2.
This action is brought by Plaintiff Arizona qualified electors to challenge
7
the final map of Arizona legislative districts (“Final Legislative Map”) approved by the
8
IRC on or about January 17, 2012, on the grounds that the legislative districts created by
9
the IRC violate the one-person/one-vote requirement of the equal protection clause of
10
the Fourteenth Amendment to the United States Constitution, and violate the equal
11
population requirement of ARIZ. CONST. art 4, pt. 2, § 1(14)(B), by systematically
12
overpopulating Republican plurality districts and systematically under-populating
13
Democrat plurality districts with no lawful state interest justifying such deviations from
14
equality of population among Arizona legislative districts.
15
16
PARTIES, JURISDICTION, AND VENUE
3.
Plaintiffs are all qualified electors of the State of Arizona, registered to
17
vote in Arizona, and members of the Republican Party. The addresses at which they are
18
registered to vote in Arizona and the legislative districts in which they reside are as
19
follows: Wesley W. Harris, 14802 N. Coral Gables Drive, Phoenix 85023, Legislative
20
District 20; LaMont E. Andrews, 3366 E. Cardinal Way, Chandler 85286 Legislative
21
District 17; Cynthia L. Biggs, 10612 S. Greenfield Rd., Gilbert 85234, Legislative
22
District 12; Lynne F. Breyer, 7629 N. Via del Paraiso, Scottsdale 85258, Legislative
23
District 23; Ted Carpenter, 9727 E. Twin Spurs, Florence 85132, Legislative District 8;
24
Beth K. Hallgren, 3400 S. Ironwood Drive, Lot 236, Apache Junction 85120,
25
Legislative District 16; James C. Hallgren, 3400 S. Ironwood Drive, Lot 236, Apache
26
Junction 85120, Legislative District 16; Lina Hatch, 1325 W. Pebble Court, Gilbert
3
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 45 of 85
1
85233, Legislative District 17; Terry L. Hill, 2677 Arizona Highway 77, Show Low
2
85901, Legislative District 6; Joyce M. Hill, 2677 Arizona Highway 77, Show Low
3
85901, Legislative District 6;
4
85901, Legislative District 6; and Sherese L. Steffens, 5869 W. Oasis Road, Tucson
5
85742, Legislative District 11.
6
4.
Karen M. MacKean, 4422 Larkspur Road, Show Low
All Plaintiffs reside in an overpopulated legislative district, and the
7
resulting violations of the one-person/one-vote requirement of the equal protection
8
clause of the Fourteenth Amendment to the United States Constitution, and the equal
9
population requirement of ARIZ. CONST. art 4, pt. 2, §1(14)(B), as alleged in detail
10
below, have proximately caused Plaintiffs and each of them to suffer concrete and
11
particular injuries, i.e. the unconstitutional dilution of their votes, for which this Court is
12
able to provide relief.
13
5.
Defendant IRC is a commission established by ARIZ. CONST. art 4, pt. 2, §
14
1(3), “to provide for the redistricting of congressional and state legislative districts.”
15
The IRC can sue and be sued under ARIZ. CONST. art 4, pt. 2, § 1 in “legal actions
16
regarding [its] redistricting plan.”
17
6.
Defendants Colleen Mathis, Linda C. McNulty, José M. Herrera, Scott D.
18
Freeman, and Richard Stertz currently hold office as members of the IRC, did so at all
19
times material to this action, and are named herein as defendants solely in their official
20
capacities. All of these defendants reside within the District of Arizona.
21
7.
Defendant Ken Bennett currently holds office as Arizona Secretary of
22
State, and is charged with certain official duties with respect to the conduct of elections
23
to the Arizona Legislature. Defendant Bennett is named herein solely in his official
24
capacity and as a nominal party in view of his election responsibilities.
25
26
8.
This court has jurisdiction of this action under 28 U.S.C. §§ 1331, 1367,
2201, 2202, 2284, and 42 U.S.C. § 1983.
4
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 46 of 85
1
9.
Venue is proper in the District of Arizona under 28 U.S.C. § 1391.
2
10.
Because this is an action challenging the apportionment of the Arizona
3
Legislature, a three-judge court has been convened pursuant to 28 U.S.C. §2284 to try
4
this action and to conduct all other proceedings as required by law.
5
ESTABLISHMENT OF THE IRC
6
11.
On or about December 29, 2010, acting pursuant to authority granted by
7
ARIZ. CONST. art 4, pt. 2, § 1(5), the Arizona Commission on Appellate Court
8
Appointments (“Appointment Commission”) nominated the requisite number of
9
nominees to be considered for appointment to the IRC. Specifically, the Appointment
10
Commission finalized a pool of 25 candidates for appointment to the IRC: ten each from
11
the Democratic and Republican Parties, and five who were not registered with either of
12
those parties.
12.
13
A question quickly arose whether three of the individuals nominated by
14
the Appointment Commission qualified for a seat on the IRC under the requirements of
15
ARIZ. CONST. art. 4, pt. 2, § 1(3).
13.
16
To challenge the qualifications of these three nominees, an action was
17
filed in the Arizona Supreme Court under the caption of Adams v. The Commission on
18
Appellate Court Appointments, No. CV 10-0405-SA.
14.
19
On January 19, 2011, the Arizona Supreme Court issued an order in this
20
case, found therein that two of the three nominees in question failed to satisfy the
21
constitutional requirements to serve as a member of the IRC, and directed that they be
22
replaced. The opinion supporting the order is published at 227 Ariz. 128, 254 P.3d 367
23
(2011).
15.
24
Pursuant to the Arizona Supreme Court’s order, the Appointments
25
Commission convened and nominated two additional nominees, one of whom was Mr.
26
Stertz.
5
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 47 of 85
1
16.
On or about the following dates, appointments to the IRC were made in
2
the constitutionally prescribed order: January 31, 2011, the Republican Speaker of the
3
Arizona House of Representatives appointed Defendant Freeman, a registered
4
Republican from Maricopa County; February 2, 2011, the Democratic Minority Leader
5
of the Arizona House of Representatives appointed Defendant Herrera, a registered
6
Democrat from Maricopa County; February 9, 2011, the Republican President of the
7
Arizona State Senate appointed Defendant Stertz, a registered Republican from Pima
8
County; and February 15, 2011, the Democratic Minority Leader of the Arizona State
9
Senate appointed Defendant McNulty, a registered Democrat from Pima County.
10
SELECTION OF THE CHAIRPERSON AND
11
HER MATERIAL OMISSIONS
12
17.
In response to the rules or practices of the Appointment Commission,
13
Defendant Mathis, a registered Independent from Pima County, submitted an
14
application to the Appointment Commission, dated October 12, 2010. A true copy of
15
the application is attached as Exhibit 1, and is adopted herein by reference. Therein
16
Defendant Mathis omitted critical information, which, had it been known, would have
17
identified her as biased to the Democratic Party and not impartial, and would have
18
precluded her under ARIZ. CONST. art 4, pt. 2, § 1(3), from being nominated to the IRC
19
as an Independent or and from being selected to serve as the Independent chairperson of
20
the IRC.
21
18.
Specifically, she failed to reveal (a) that Christopher Mathis, Defendant
22
Mathis’s husband, served in the 2010 election as treasurer for the campaign of Nancy
23
Young Wright, a Democratic candidate for a seat in the Arizona House of
24
Representatives from legislative district 26 in Pima County, (b) on May 16, 2010, she
25
donated $100 to the campaign of Andrei Cherny, then a candidate for Arizona State
26
Treasurer in the 2010 election, (c) on May 4, 2010, Christopher Mathis donated $250 to
6
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 48 of 85
1
the Cherny state-treasurer campaign, (d) on October 27, 2010, Christopher Mathis
2
donated $100 to the Nancy Wright legislative campaign, (e) on August 10, 2010, she
3
donated $10 to the Arizona List P.A.C., a committee for pro-choice democratic women
4
in Arizona; and (f) on March 3, 2010, Christopher Mathis donated $75 to Arizona List
5
P.A.C., and on August 10, 2010, donated another $10 to Arizona List P.A.C. A true
6
copy of a campaign finance report of the Arizona Secretary of State’s office reflecting
7
such donations is attached as Exhibit 2, and is adopted herein by reference. This
8
consistent pattern of service to Democratic causes and donations to Democratic
9
candidates reveals that Defendant Mathis at heart was a Democrat, though dressed in
10
11
Independent clothing.
19.
Question number 6 on the application provides: “Is there any possible
12
conflict of interest or other matter that would create problems or prevent you from fairly
13
and impartially discharging your duties as an appointee to the Independent Redistricting
14
Commission? Yes ( ) No ( ) If your answer is “Yes,” attach an explanation.
15
Defendant Mathis answered “No.” Defendant Mathis did not disclose the information
16
relative to her Democratic-Party ties on her application in response to this question.
17
18
20.
On February 24, 2011, in a meeting called by the Arizona Secretary of
19
State, the first four appointed Commissioners, constituting a quorum, met to select a
20
chairperson from among the five candidates who are not registered with either of
21
Arizona’s two largest parties.
22
21.
During the February 24, 2011, interviews, Defendant Freeman indicated
23
to Defendant Mathis that the IRC’s political appointee members were looking for a
24
chairperson who would bring balance and fairness to the IRC and asked Defendant
25
Mathis whether anything in her background would call into question her ability to be
26
fair. According to the minutes of this meeting, Defendant Mathis answered that “there
7
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 49 of 85
1
is nothing in her background that would limit her ability to be fair and as long as she did
2
not have to make decisions about buying heavy equipment she would be okay.” In
3
response to questioning from Defendant McNulty about her management style, the
4
meeting minutes report that Defendant Mathis responded that she liked “to create an
5
environment where people feel they can trust her and are comfortable with what she is
6
trying to do” and that it was “important to be open and impartial and achieve the end
7
result by consensus.”
8
9
10
11
22.
This was an opportunity for Defendant Mathis to correct the material
omissions she had made on her application. Instead, as disclosed by her interview
answers, she doubled down and continued to maintain a façade of impartiality.
23.
Although they interviewed the five candidates and then met in closed
12
session, the Commissioners did not select a chairperson that day. To allow time for
13
further reflection, the Commissioners decided to meet again on March 1, 2011.
14
24.
On March 1, 2011, after meeting in closed session for a little over an hour,
15
Defendants Freeman, Herrera, Stertz, and McNulty selected Defendant Mathis to serve
16
as IRC Chair.
17
25.
Indeed, Mr. Mathis effectively became a “sixth commissioner” by closely
18
counseling Defendant Mathis on every aspect of the redistricting process and the votes
19
that were taken and interacting with stakeholders. Mr. Mathis attended virtually every
20
public meeting of the IRC, often spoke with Democratic operatives during hearings,
21
listened in on many conference calls among the IRC members, and acted on Defendant
22
Mathis’s behalf to round up votes on decisions coming before the IRC. Mr. Mathis
23
even went so far as to propose a deal to establish legislative district boundaries under
24
which the Democratic Commissioners would draw districts in southern Arizona and the
25
Republican Commissioners would draw those in northern Arizona.
26
26.
For someone constitutionally barred from service on the Commission, Mr.
8
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 50 of 85
1
Mathis was allowed to have unprecedented involvement in and influence on the
2
redistricting process.
3
4
TURMOIL SURROUNDS THE IRC’S PARTISAN DECISIONS
27.
With the selection of Defendant Mathis as its chair, the IRC was fully
5
constituted on March 1, 2011, and it almost immediately violated the Arizona
6
Constitution. 9.
7
Constitution mandates that “[t]he five commissioners shall then select by majority vote
8
one of their members to serve as vice-chair.”
9
28.
After selecting a chair, Article 4, Part 2, § 1(9) of the Arizona
But instead of complying with the constitution’s mandate and despite the
10
advice of counsel to the contrary, the IRC selected both Commissioners Herrera and
11
Freeman to serve as co-vice-chairs.
12
29.
After the appointment of the IRC’s chairperson, the commissioners
13
quickly polarized along party lines, with the chairperson, nominally an independent,
14
siding with the Democratic members on every decision of any consequence.
15
THE DEMOCRATS AND INDEPENDENT
16
SELECT REPUBLICAN COUNSEL
17
18
19
30.
The alliance among Defendants Mathis, McNulty and Herrera first
emerged with the selection of the IRC’s legal counsel.
31.
After discussion about the IRC’s procurement authority and consultation
20
with the State Procurement Office (“SPO”) of the Arizona Department of
21
Administration, the IRC Defendants decided to follow the state procurement code to
22
retain legal services from one or more law firms.
23
24
25
26
32.
On or about April 8, 2011, SPO issued a request for proposals (“RFP”) for
IRC legal services. Responses to the legal services RFP were due April 28, 2011.
33.
ARIZ. CONST. art. 4, pt. 2, § 1(12) does not authorize the IRC to meet in
anything but “a meeting open to the public, with 48 or more hours public notice
9
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 51 of 85
1
provided.”
2
approximately 5.5 hours; May 6, 2011 (telephonically) for an undisclosed amount of
3
time; and on May 10, 2011 for approximately 1.5 hours before selecting the law firms to
4
be interviewed in public session on May 10, 2011.
5
34.
Nonetheless, the IRC met in closed sessions on May 3, 2011, for
On May 12, 2011, the IRC met in public session and interviewed six of
6
the law firms that responded to the legal services RFP with the goal of procuring the
7
services of a Republican and a Democratic attorney.
8
35.
After at least two closed sessions on May 12, 2011, and May 13, 2011,
9
totaling approximately two hours, Defendants Mathis, McNulty, and Herrera selected
10
Osborn Maledon, P.A. (Democrat Mary O’Grady) and Ballard Spahr LLP (Republican
11
Joseph Kanefield) as legal counsel. For more than 20 years, Mr. Kanefield had been a
12
registered Democrat, and only switched to the Republican Party in 2010.
13
36.
The Democratic Commissioners, Defendants McNulty and Herrera, and
14
the Chairperson, Defendant Mathis, selected Republican counsel over the objections of
15
the Republican Commissioners, Defendants Freeman and Stertz.
16
37.
The selection of Republican counsel against the wishes of the Republican
17
members of the IRC set off a firestorm of controversy during public comment in
18
subsequent meeting after meeting. In summary, this first glimpse of the coalition of
19
Defendants Mathis, McNulty, and Herrera raised concerns that the selection of counsel
20
would foreshadow this coalition’s commitment to something other than the application
21
of the constitutional provisions in an honest, independent, and impartial fashion and
22
other than upholding public confidence in the integrity of the redistricting process.
23
THE DEMOCRATS AND INDEPENDENT SELECT A HIGHLY-PARTISAN
24
DEMOCRATIC FIRM AS MAPPING CONSULTANT
25
26
38.
Further concerns emerged concerning the outcome-oriented nature of the
scoring of the responses to the RFP engaged in by at least one Commissioner who gave
10
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 52 of 85
1
perfect scores to the Democratic Commissioners’ preferred candidates and an
2
unjustifiably low score to the candidate preferred by the Republican Commissioners.
3
One other Commissioner’s written comments during the procurement process raised
4
concerns about the possibility that the scoring had been rigged.
5
39.
Upon information and belief, Defendants Mathis, McNulty, and Herrera
6
discussed matters involving the selection of legal counsel for the IRC, including having
7
discussions that led to or were the equivalent of legal action, outside of properly noticed
8
public meetings.
9
40.
On or about June 15, 2011, the IRC Defendants met in public session to
10
select four candidates to interview for the position of mapping consultant: Strategic
11
Telemetry, National Demographics, Research Advisory Services, and Terra Systems
12
Southwest. Before making their selection, the IRC Defendants held one or more closed
13
sessions to discuss the selection of a mapping consultant, including an almost five-hour
14
closed session on June 15, 2011.
15
41.
Following presentations by the candidates for mapping consultant on June
16
24, 2011, the IRC Defendants met in closed session to discuss the selection of the
17
mapping consultant, and Defendants Mathis, McNulty, and Herrera all gave Strategic
18
Telemetry perfect scores despite its complete lack of redistricting experience, its lack of
19
even rudimentary knowledge of Arizona demographics and geographics, its submission
20
of the most expensive proposal, and its being headquartered at the District of Columbia.
21
42.
A copy of the July 1, 2011, Yellow Sheet Report, published by Arizona
22
Capitol Reports, LLC, is attached as Exhibit 3 and is adopted herein by reference, and
23
details the irregularities surrounding the selection of Strategic Telemetry as mapping
24
consultant to the IRC. These irregularities were not limited to closed-session violations
25
of Ariz. Const. art. 4, pt. 2, § 1(12), but also included destruction of public records, i.e.
26
their initial scoring sheets, in violation of A.R.S. § 39-121.01.
11
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 53 of 85
1
43.
Throughout this selection process, concerns were voiced about Strategic
2
Telemetry’s highly partisan, pro-Democratic resume. Strategic Telemetry advertised
3
itself as a statistics and data analysis firm that caters to Democratic clients. Upon
4
information and belief, as a Democratic campaign strategist, Strategic Telemetry’s
5
President, Ken Strasma, specialized in micro targeting and is considered to be a pioneer
6
in the use of high-tech statistical modeling in Democratic campaigns. In this vein, Mr.
7
Strasma, served as the national target director for the 2008 Obama presidential
8
campaign.
9
technique for identifying narrow niches of voters and targeting campaign
10
communications to them. He also worked with the 2004 John Kerry presidential
11
campaign.
12
Wisconsin, including Governor Scott Walker. Mr. Strasma also has a long history of
13
making substantial monetary contributions to Democratic candidates. According to
14
Federal Election Commission records, Mr. Strasma has contributed almost $15,000 to
15
Democratic candidates in recent years. The fact that Strategic Telemetry is not a
16
mapping firm was highlighted during and AIRC meeting in July 2011 when Strategic
17
Telemetry indicated that its staff would need time to learn the software that is standard
18
in the mapping industry.
His work for the 2008 Obama campaign included micro-targeting, a
Most recently, he worked on efforts to recall Republican officials in
19
THE DEMOCRATS AND INDEPENDENT
20
DEFY THE OPEN MEETING LAW
21
44.
Despite its lack of mapping experience, Strategic Telemetry’s ability to go
22
beyond voter registration to analyze voter behavior would allow it to carve out districts
23
that might appear neutral but in fact would be solidly pro-Democrat districts.
24
Commissioner Mathis lobbied other Commissioners to select Strategic Telemetry.
25
26
45.
Before the selection of the mapping consultant, Defendant Mathis
contacted Defendant Freeman on at least one occasion to ask him to support the
12
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 54 of 85
1
selection of Strategic Telemetry as the IRC’s mapping consultant. Defendant Mathis
2
presented a quid pro quo to Defendant Freeman, stating that “there might be times in the
3
future where, you know, [you] need[] a third vote.” (Attorney General Deposition of S.
4
Freeman at 11:8-9, copy attached as Exhibit 4 and adopted herein by reference.)
5
Defendant Freeman properly rejected Defendant Mathis’s overture.
6
46.
Before the selection of the mapping consultant, Defendant Mathis
7
contacted Defendant Stertz on at least two occasions to ask him to support the selection
8
of Strategic Telemetry as the IRC’s mapping consultant. Defendant Mathis presented a
9
quid pro quo to Defendant Stertz, stating that “if I were to vote with her in regards to
10
the selection of Strategic Telemetry, she would provide a favorable vote for me in the
11
future.” (See 10/29/2011 Letter of R. Stertz to Governor Brewer at 2, a true copy of
12
which is attached as Exhibit 5 and is adopted herein by reference.) Like Defendant
13
Freeman, Defendant Stertz properly rejected Defendant Mathis’s offer to exchange his
14
vote in favor of Strategic Telemetry for the promise of a future vote from Defendant
15
Mathis.
16
47.
Before the selection of the mapping consultant, Defendant Herrera
17
communicated with one or more other IRC Commissioners regarding which firm should
18
be hired. According to remarks made during the June 29, 2011 public meeting, Mr.
19
Herrera pretextually stated that his first choice was Research Advisory Services but
20
further stated that “in a spirit of cooperation and negotiation,” he decided “to support
21
Strategic Telemetry.”
22
48.
Upon information and belief, before the selection of the mapping
23
consultant, Defendant Mathis contacted Defendant McNulty on at least one occasion to
24
ask her to support the selection of Strategic Telemetry as the IRC’s mapping consultant.
25
26
49.
On June 29, 2011, the IRC Defendants met to consider the mapping
consultant RFP. Following a closed session with State Procurement officials, the IRC’s
13
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 55 of 85
1
counsel announced that SPO was no longer working on the mapping consultant
2
procurement and that the project was now delegated to the IRC. Upon information and
3
belief, SPO renounced any role in the process because the process clearly was diverging
4
from long-standing principles of Arizona procurement law.
5
50.
The IRC then proceeded to select Strategic Telemetry as its mapping
6
consultant by a vote of 3-2, with the Mathis-McNulty-Herrera coalition voting yes, and
7
Defendants Stertz and Freeman voting no.
8
9
10
11
51.
In explaining her vote for Strategic Telemetry, Defendant Mathis read
from remarks obviously prepared in advance of the meeting, which indicated advance
knowledge of the outcome of the IRC’s vote.
52.
On information and belief, Defendants Mathis, McNulty, and Herrera
12
coordinated their efforts to guarantee that Strategic Telemetry would be selected as the
13
IRC’s mapping consultant by, among other actions, agreeing that they each would
14
award Strategic Telemetry a perfect score and engaging in various non-public
15
communications designed to garner a majority of Commissioners in advance of a public
16
meeting. These sub rosa efforts to achieve majority consensus violated ARIZ. CONST.
17
art. 4, pt. 2, § 1(12), which required all discussions and actions to hire a mapping
18
consultant to occur in a public meeting. “Public officials may not circumvent public
19
discussion by splintering the quorum and having separate or serial discussions with a
20
majority of the public body members. Splintering the quorum can be done by meeting in
21
person, by telephone, electronically, or through other means to discuss a topic that is or
22
may be presented to the public body for a decision.” Arizona Attorney General Agency
23
Handbook at § 7.5.2, found at http://www.ag.state.az.us/Agency_Handbook/ch07.pdf.
24
53.
Coming on the heels of the selection of legal counsel, the Mathis-
25
McNulty-Herrera decision to hire the highly partisan Strategic Telemetry proved to be a
26
flashpoint that irreparably damaged public confidence in the IRC. Subsequent IRC
14
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 56 of 85
1
meetings featured scores of citizens expressing concerns about the ability of Strategic
2
Telemetry to remain impartial. The transcript of the IRC’s public meeting on June 30,
3
2011, reflects roughly 90 pages of public comments denouncing the selection of
4
Strategic Telemetry and the criticizing the hack conduct of Defendant Mathis.
5
54.
Additional concerns were raised about Defendants Mathis, McNulty, and
6
Herrera discussing IRC business with each other outside of public meetings and about
7
the IRC improperly conducting business during closed sessions.
8
55.
On the morning of July 21, 2011, Attorney General Tom Horne
9
announced an investigation of the IRC for alleged violations of Arizona’s procurement
10
rules and its open meeting law, which is codified at A.R.S. §§ 38-431.01 through 38-
11
431.09.
12
13
14
15
16
56.
As part of this investigation, the Attorney General issued Civil
Investigative Demands (“CIDs”) to all five Commissioners.
57.
Commissioners Freeman and Stertz cooperated with the Attorney
General’s investigation and submitted to depositions under oath.
58.
Defendants Mathis, McNulty, and Herrera each received separate legal
17
counsel at the IRC’s expense, which violated A.R.S. § 38-431.07(B), and each refused
18
to cooperate with the Attorney General’s investigation. The Attorney General sued
19
these Commissioners in Maricopa County Superior Court to enforce the CIDs, Case no.
20
CV2011-016442.
21
59.
In response to the Attorney General’s investigation, the IRC argued that it
22
was subject only to ARIZ. CONST. art. 4, pt. 2, § 1(12)’s public meeting requirement and
23
not the specific provisions of the open meeting law. But the Defendant IRC’s own
24
counsel provided training to the Commissioners on open meeting law compliance,
25
noticed IRC meetings by citing to the open meeting law’s provisions, and freely utilized
26
the open meeting law’s exception allowing the IRC to meet in closed sessions. What’s
15
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 57 of 85
1
more, if the IRC were only subject to ARIZ. CONST. art. 4, pt. 2, § 1(12)’s public
2
meeting requirements, it had no legal justification for the more than 40 hours spent in
3
closed sessions.
4
60.
The IRC brought a declaratory judgment and special action, case no.
5
CV2011-017914, seeking in Maricopa County Superior Court to resolve the question of
6
whether the IRC was subject to the open meeting law and to protect the IRC from what
7
it argued was the Attorney General’s attempt to interfere with the IRC’s business.
8
9
61.
The trial court ultimately removed the Attorney General from the
investigation based on a conflict of interest arising from the Attorney General’s
10
representation of the IRC before the hiring of the IRC’s legal counsel.
11
investigation was then transferred to the Maricopa County Attorney’s Office. The trial
12
court also determined that (a) the IRC is subject only to ARIZ. CONST. art. 4, pt. 2, §
13
1(12)’s public meeting requirement, and (b) that the IRC is not subject to the open
14
meeting law. The Maricopa County Attorney’s Office has appealed, and the matter is
15
now pending in Division One of the Arizona Court of Appeals, No. 1 CA-CV 12-0068.
16
62.
The
On information and belief, Defendants Mathis, McNulty and Herrera
17
engaged in non-public communications to arrive at consensus among this majority of
18
Commissioners and then took the position that they were not subject to Arizona’s open
19
meeting law in order to avoid the consequences of their conduct.
20
21
63.
Early on, the stage thus was set for an outcome-driven redistricting instead
of the process-driven redistricting guaranteed by the Arizona Constitution.
22
THE DEMOCRATS AND INDEPENDENT
23
ABANDON THE CONSTITUTIONAL PROCESS
24
25
64.
ARIZ. CONST. art. 4, pt. 2, §§1(14) – (16) require the IRC to perform its
district-drawing work in four phases. Arizona Minority Coalition for Fair Redistricting
26
16
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 58 of 85
1
v. Arizona Independent Redistricting Commission, 220 Ariz. 587, 597, ¶ 29, 208 P.3d
2
676, 686 (2009).
3
65.
4
The first phase is the “creation of districts of equal population in a grid-
like pattern across the state.” Id. at ¶ 30 (internal quotation marks omitted.)
5
66.
Second, the “Commission must make adjustments to the grid as necessary
6
to accommodate the six constitutional goals.” Id. at ¶ 31 (internal quotation marks
7
omitted.)
8
9
67.
Third, the IRC must advertise the maps for public comment for a period of
30 days. Id. at 598-99, ¶ 31, 208 P.3d at 687-88.
10
68.
Fourth, “after the public comment period has ended, the Commission must
11
establish final district boundaries and certify the new districts to the Secretary of State.”
12
Id. at 600, ¶ 44, 208 P.3d at 689.
13
69.
On or about July 21, 2011, the IRC began to hold what it denoted as
14
round-one public hearings in various locales around Arizona to take public input on
15
mapping considerations.
16
17
18
70.
The IRC concluded the round-one public hearings on or about August 6,
71.
On August 18, 2011, the IRC considered two possible congressional grid
2011.
19
maps and chose Grid Map No. 2. Although the constitution requires that the IRC begin
20
the mapping process by creating “districts of equal population in a grid-like pattern
21
across the state” before making any adjustments to accommodate the six constitutional
22
goals, the IRC violated the constitution by considering factors other than equal
23
population in creating the Congressional Grid Map. A true copy of the congressional
24
grid map is attached as Exhibit 6, and is adopted herein by reference.
25
26
72.
As reflected in the transcript of the IRC meeting of August 18, 2011, at
5:24-6:2, the IRC’s adopted Congressional Grid Map was based not only on equal
17
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 59 of 85
1
population; it admittedly took the goals of compactness and contiguity into account. A
2
true copy of this excerpt of the 08.18.11 meeting transcript is attached as Exhibit 7 and
3
is adopted herein by reference.
4
73.
In addition, instead of adopting a Grid Map that would serve as a neutral,
5
unbiased starting point for redistricting, the IRC’s Congressional Grid Map was adopted
6
based on subjective considerations, including which Grid Map might be most likely to
7
lead to a Commissioner’s desired outcome in violation of ARIZ. CONST. art. 4, pt. 2 §
8
1(14). See Exhibit 7 at 6:24-51:19.
74.
9
On August 18, 2011, the IRC approved its option 2 legislative grid map,
10
thereby completing Phase 1 of its constitutionally-mandated work. A true copy of this
11
grid map is attached as Exhibit 8, and is adopted herein by reference.
75.
12
13
After approval of the grid maps, the IRC entered into Phase 2 of its
constitutionally-mandated work, and began adjustments to the grid maps.
14
PHASE TWO MAP DRAWING, CONTINUED POLARIZATION, BOGGING
15
DOWN, AND PARTIAL ABANDONMENT OF THE GRID MAP
76.
16
The IRC again polarized around party lines, with the Democratic members
17
proposing a series of legislative mapping iterations under the label of Legislative 9
18
Minority Districts Option 1, and the Republican members proposing a series of
19
legislative mapping iterations under the label of Legislative 9 Minority Districts Option
20
2.
21
77.
Similarly, on the congressional side, the Democratic members proposed a
22
series of congressional mapping iterations under the rubric of River District, and the
23
Republican members proposed a series of congressional mapping iterations under the
24
rubric of Whole Counties.
25
26
78.
In September 2011, the IRC began bogging down in its work on both the
legislative and congressional sides.
18
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 60 of 85
1
79.
As a result, on the week-end of September 24-25, 2011, Chairperson
2
Mathis on her own at her home began to draw a congressional map, which she presented
3
to the IRC at its meeting of September 26, 2011, under the label of the “Everything
4
Map,” the effect of which was to merge the River District Map and the Whole Counties
5
Map outside of Maricopa County and to obliterate the grid map and leave a blank space
6
in Maricopa County. This Map quickly became known as the donut-hole map.
7
8
9
80.
The Chairperson then turned the task of filling in the blank space in
Maricopa County to Commissioner McNulty.
81.
It was apparent from this process that Ms. Mathis had (1) again sided with
10
the Democratic members on the question of drawing the congressional map, and (2) in
11
Maricopa County had forsaken the state constitutional command that the IRC begin
12
with the grid map and make adjustments only for the six goals set forth in ARIZ. CONST.
13
art. 4, pt. 2, § 1(14).
14
82.
Abandoning the grid map in Maricopa County and turning the
15
congressional map drawing within Maricopa County over to Commissioner McNulty
16
brought a firestorm of public criticism down upon the chairperson.
17
ADOPTION OF DRAFT MAPS WITH NO GENUINE
18
EFFORT TO SATISFY THE VOTING RIGHTS ACT
19
83.
On October 3, 2011, a three–person majority of the IRC, composed of
20
Chairperson Mathis and Democratic members McNulty and Herrera, approved a
21
congressional draft map to be published for 30-day comment.
22
84.
The IRC then turned to the legislative maps. To defuse the criticism of
23
partisanship surrounding her obliteration of the grid map in Maricopa County on the
24
congressional side and turn over of the line drawing in Maricopa County to
25
Commissioner McNulty, Chairperson Mathis initially drew Commissioner Freeman in
26
to join Commissioner McNulty in drawing legislative districts.
19
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 61 of 85
1
2
85.
On October 10, 2011, the IRC approved a draft legislative map, a true
copy of which is attached as Exhibit 9 and is adopted herein by reference.
3
86.
A racial bloc voting analysis is an essential and critical element to
4
satisfying the requirements of sections 2 and 5 of the Voting Rights Act. Without a
5
racial bloc voting analysis it is impossible to know whether any redistricting plan
6
complies with the Voting Rights Act.
7
87.
By the time the IRC had approved its draft legislative map, it had not
8
conducted a racial bloc voting analysis of either the congressional or the legislative
9
map.
10
88.
As a result, the IRC’s purported effort to comply with the Voting Rights
11
Act was incomplete, and its implicit representation to the public that its draft legislative
12
map complied with the Voting Rights Act was fraudulent by material omission.
13
89.
What’s more, by the time the IRC had approved its draft legislative map,
14
it had not obtained all of its data on the competitiveness goal, and thus could not have
15
determined whether either the congressional or legislative maps satisfied the
16
competitiveness criterion of ARIZ. CONST. art. 4, pt. 2, § 1(14)(F).
17
18
90.
As a result, the IRC also failed to afford the Legislature a genuine 30-day
comment period, as required by ARIZ. CONST. art. 4, pt. 2, § 1 (16).
19
ROUND TWO HEARINGS AND
20
COMMENT FROM THE LEGISLATURE
21
22
23
91.
Beginning on October 11, 2011, the IRC commenced a series of public
hearings on the draft maps, and such hearings continued until November 5, 2011.
92.
Acting pursuant to the authority conferred on it by ARIZ. CONST. art. 4, pt.
24
2, § 1(16), on November 1, 2011, the Arizona Legislature approved House Concurrent
25
Memorial 2001 (50th Leg. 4th Sp. Sess.) to the IRC commenting on the draft maps and
26
cautioning the IRC that, among other things, (a) the draft legislative map likely would
20
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 62 of 85
1
violate the one-person/one-vote rule of the Fourteenth Amendment and the equal
2
population requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B), (b) the IRC had not
3
performed a racial bloc voting analysis and therefore could not have made any genuine
4
determination that the legislative draft map complied with the Voting Rights Act, (c) the
5
minority voting-age population in some districts exceeded 60%, while in adjacent
6
districts barely exceeded 50%, (d) the draft legislative districts failed to respect
7
communities of interest in at least 13 instances, and failed to respect city, town, and
8
county lines in multiple instances, (e) it appeared from the packing of Republican
9
incumbents into several districts that the IRC had to have considered the residence
10
locations of incumbents, which violated ARIZ. CONST. art. 4, pt. 2, § 1(15), and (f) the
11
IRC had not complied with the 30-day comment requirement of ARIZ. CONST. art. 4, pt.
12
2, § 1(16), because the IRC had neither the essential racial bloc voting analysis nor
13
complete competitiveness information when it approved the draft maps and therefore
14
the maps were incomplete when published to the public.
15
Legislature’s memorial is attached as Exhibit 10, and is adopted herein by reference.
16
17
A true copy of the
THE GOVERNOR’S REMOVAL OF THE CHAIRPERSON
93.
Concerned about the IRC’s patent violation of the map-drawing process
18
provided by ARIZ. CONST. art. 4, pt. 2, §§ 1(14) -- (16), the Governor gave notice to the
19
IRC chairperson and members of such violations, and requested a response by October
20
31, 2011. A true copy of the Governor’s notice letter is attached as Exhibit 11, and is
21
adopted herein by reference.
22
94.
Finding the response of the Chairperson inadequate, on November 1,
23
2011, the Governor announced her intent to remove Chairperson Mathis, and called a
24
special session of the Arizona Legislature for the purpose of obtaining concurrence from
25
the Arizona Senate.
26
21
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 63 of 85
1
2
95.
On November 1, 2011, the Arizona Senate concurred with the Governor’s
removal of the Chairperson by a two-thirds majority.
3
96.
The IRC filed a special action petition in the Arizona Supreme Court to
4
reverse the Governor’s removal of Chairperson Mathis, the Arizona Supreme Court
5
accepted jurisdiction, and by order dated November 17, 2011, the Arizona Supreme
6
Court reversed the removal and ordered Chairperson Mathis reinstated to her office at
7
the IRC. The opinion supporting the order is Arizona Independent Redistricting Com’n
8
v. Brewer, --- P.3d ----, 2012 WL 1366362, 632 Ariz. Adv. Rep. 32 (Ariz., April 20,
9
2012).
10
11
ALL PRETENSE OF IMPARTIALITY IS ABANDONED.
97.
With her hand strengthened by the Arizona Supreme Court’s reversal of
12
her removal, Chairperson Mathis and the two Democratic members of the IRC
13
abandoned all pretense of impartiality and proceeded to maximize the advantages in the
14
legislative map to the Democratic Party.
15
16
17
98.
The IRC gave no consideration to the recommendations of the Legislature
in violation of the Article 4, Part 2, § 1(16) of the Arizona Constitution.
99.
The Legislative recommendations were placed on the Commission’s
18
November 29, 2011 agenda. At that meeting, Commission attorney Mary O’Grady
19
advised the Commissioners that the Legislative recommendations were in the packet of
20
materials provided to each Commissioner for their review. Ms. O’Grady stated, “I don’t
21
know that it makes sense now to sort of read through [the Legislature’s
22
recommendations], but maybe commit it to the Commission to makes [sic] sure that you
23
review those. And as the mapping process proceeds, you may want to – you can take
24
those into account as the work goes on.” She also stated that the Commission “might
25
want to consider” the Legislature’s comments and that “if the Commission is concerned
26
22
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 64 of 85
1
about anything [raised by the Legislature], they can consider those as they propose
2
recommended changes to the draft map.” (Tr. 11-29-11 at 144:18-146:22).
3
100.
Defendant Herrera stated his understanding of Ms. O’Grady’s advice. “I
4
think as Ms. O’Grady said, we’re free to read this information and take it into account
5
when we are making changes to the draft map. So I think she was pretty clear.” Tr.
6
11-29-11 at 148:12-15.
7
101.
The Commission merely made a record that it had received House
8
Concurrent Memorial 2001, which is insufficient to satisfy the constitutional
9
requirement that the Commission “consider” the recommendations of the Legislature.
10
Tr. 11-29-11 at 145:9-16.
11
12
102.
The Commission treated its responsibility to consider the Legislative
recommendations as discretionary in violation of Ariz. Const. art. 4, pt. 2, § 1(16).
13
103.
At no time did a quorum of the Commission consider acting upon the
14
Legislature’s recommendations, in whole or in part, and never considered accepting or
15
rejecting any or all of its recommendations. On information and belief, the Commission
16
ignored the Legislature’s recommendations and, by doing so, ignored the constitutional
17
requirement that it consider them.
18
104.
In a series of IRC meetings beginning on November 29, 2011, and ending
19
on January 17, 2012, the IRC’s Democrat-polarized majority made numerous changes
20
in the draft legislative map, which can be summarized as follows:
21
22
District
Changes
23
24
25
1
Lost Camp Verde, and added New River, Cave Creek, Carefree, and
Anthem
26
23
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 65 of 85
1
2
Lost Cochise County, and added Green Valley and more of Tucson
3
Added part of Marana and Democratic State Senator Cajero
2
3
4
5
Bedford's house
4
Lost part of Yuma to Legislative District 13
5
Added the Arizona strip north of the Grand Canyon
6
Added Camp Verde and Grand Canyon Village, and lost Show Low and
6
7
8
9
10
11
Linden
7
Lost the Arizona Strip and added Show Low and Linden
8
Lost east Tucson foothills and Saddlebrook, and added Eloy
12
13
14
15
and part of Casa Grande
10
Added southeastern Tucson
11
Lost Eloy, Casa Grande, and the Gila River reservation, and
16
17
18
19
20
added the east Tucson Foothills
12
Added Queen Creek in Pinal County
13
Added northwest Maricopa County, including Buckeye and
21
22
23
24
25
Wickenburg, and part of Yuma, and lost part of Surprise
14
Added Greenlee County and a portion of Cochise County, and lost
part of Tucson
26
24
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 66 of 85
1
15
2
3
Added Phoenix west of I-17, and Lost Phoenix south of Union
Hills
20
Added eastern Glendale
21
Added a portion of Surprise
23
Gained the Ft. McDowell Reservation
24
Lost northeastern Scottsdale and the Salt River Reservation
26
Gained northeastern Scottsdale and the Salt River Reservation
27
Gained the Gila River Reservation
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
ADOPTION OF THE FINAL LEGISLATIVE MAP
105.
On January 17, 2012, the IRC Democratic-polarized majority approved a
final legislative map over the vigorous dissents of the two Republican members.
106.
As reflected in the comments of Vice-Chairperson Freeman and
19
Commissioner Stertz at the IRC meeting of January 17, 2012, the final map was
20
stripped of all input from the Republican members and was a purely Democratic map
21
with only pretextual effort to satisfy the six state-constitutional goals set forth in ARIZ.
22
CONST. art. 4, pt. 2, § 1(14).
23
24
25
26
25
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 67 of 85
1
2
THE IRC SYSTEMATIC OVERPOPULATES
3
REPUBLICAN-PLURALITY DISTRICTS AND
4
UNDERPOPULATES DEMOCRATIC-PLURALITY DISTRICTS
5
107.
In the final congressional map adopted by the IRC on January 17, 2012,
6
the IRC achieved equality of population among districts, with eight of the nine
7
congressional districts having a population of 710,224 residents, and the ninth district
8
having a population of 710,225 residents. A true copy of the IRC’s population break-
9
down for the final congressional map is attached as Exhibit 12, and is adopted herein by
10
11
reference.
108.
In contrast, in the Final Legislative Map, the IRC did not achieve
12
population equality among districts, and not even a single district achieved the ideal
13
population of 213,067 residents. A true copy of the IRC’s population break-down for
14
the Final Legislative Map is attached as Exhibit 13, and is adopted herein by reference.
15
109.
The IRC systematically overpopulated Republican-plurality districts. (As
16
used herein, “Republican-plurality district means a legislative district in which more
17
voters are registered with the Republican Party than with any other party, and
18
“Democratic-plurality district” means a legislative district in which more voters are
19
registered with the Democratic Party than with any other political party.)
20
110.
With one exception, every Republican-plurality district exceeds the ideal
21
population of 213,067 residents. These include Districts 1, 5, 6, 11, 12, 14-18, 20-23,
22
25, and 28. The exception is District 13, which is an oddly-shaped district comprising
23
northern Yuma County and western Maricopa County and is under-populated by 1,366
24
residents or 0.64% below ideal. A true copy of the IRC’s legislative-district party-
25
registration break-down is attached as Exhibit 14, and is adopted herein by reference.
26
26
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 68 of 85
1
111.
Two Republican-plurality districts are more than 8000 persons above
2
population equality: District 12 at 8668, and District 17 at 8107. Two are more than
3
7000 persons over: District 25 at 7728, and District 16 at 7090. Four are more than
4
5000 persons over: District 5 at 5973, District 28 at 5646, District 18 at 5100, and
5
District 20 at 5100. District 14 is 4626 persons over. On average, the 16 overpopulated
6
Republican-plurality districts exceed the ideal by 4480 persons or 2.1%.
7
112.
All of the 14 most overpopulated districts are Republican. All of the 12
8
under-populated districts, save one (District 13) are Democrat. The four remaining
9
districts are all over-populated by less than 0.30%. Of them, Districts 9 and 26 are
10
11
Democrat-plurality, and Districts 11 and 23 are Republican-plurality.
113.
The IRC systematically under-populated Democratic-plurality districts.
12
With two exceptions, every Democratic-plurality district falls short of the ideal
13
population of 213,067 persons. These include Districts 2-4, 7, 8, 10, 13, 19, 24, 27, 29,
14
and 30. The two exceptions are District 9, which comprises north Tucson and Oro
15
Valley, and District 26, which comprises much of Tempe. These districts are slightly
16
overpopulated from the ideal, respectively by 156 and 591 persons, or by 0.07% and by
17
0.28%.
18
19
20
114.
Thus, eighty-nine percent of the overpopulated districts are Republican
and ninety-two percent of the under-populated districts are Democrat.
115.
One Democratic-plurality district -- District 7 -- falls below population
21
equality by 10,041 persons. Four Democratic-plurality districts fall below by more than
22
8000 persons: District 4 at 8924, District 27 at 8872, District 3 at 8454, and District 2 at
23
8452. Three more fall below by more than 5000 persons: District 24 at 6408, District
24
19 at 5979, and District 30 at 5304. District 8 falls below ideal by 4645 persons. On
25
average, the 11 under-populated Democratic-plurality districts fall short of the ideal by
26
6461 persons or 3.03%.
27
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 69 of 85
1
116.
District 7, the only Native American legislative district in the State, falls
2
below population equality by 4.71 percent, the largest absolute deviation in the plan.
3
District 7 is also. Four Democrat districts fall below by more than 3.5 percent: District
4
4 at 4.19 percent, District 27 at 4.16 percent, and Districts 3 and 2 at 3.97%. Four more
5
fall below by more than 2 percent: District 24 at 3.01 percent, District 19 at 2.81
6
percent, District 30 at 2.49 percent, and District 8 at 2.18%.
7
117.
On average the 11 under-populated Democrat districts fall short of the
8
ideal by 3.03%. This high average population deviation indicates that an abnormal
9
number of these districts are under-populated and, indeed, overpopulated in excess of
10
3%. If the IRC had been drawing with equal population as a principal criterion, most of
11
the districts would be expected to be within +/-1% of the ideal. Only nine of the IRC’s
12
2011 districts are that close. If the IRC had used neutral redistricting criteria as its
13
guiding principle in drawing the map, one might see some population deviations higher
14
than one percent, but the pattern of district deviations would not correlate with
15
partisanship to anywhere near the extent seen in the IRC’s plan. The only logical
16
explanation is that the IRC’s pattern of deviations was deliberate and intended to have a
17
partisan effect to enhance Democrat strength in the Legislature.
18
118.
Exhibit 17, adopted herein by reference, contains a bar chart showing the
19
amplitude of deviation of each district with each district’s bar colored according to party
20
registration plurality. The bars colored green are the districts with Democrat pluralities,
21
while the red bars are Republican.
22
NO LEGITIMATE STATE INTEREST JUSTIFIES
23
THE IRC’S VARIANCE FROM IDEAL
24
25
119.
Having achieved exact equality among congressional districts, the IRC
had the technical ability to achieve exact equality among legislative districts, and under
26
28
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 70 of 85
1
the circumstances of this action, no legitimate state interest justifies the IRC’s variation
2
from exact equality.
3
120.
The technology of demographics has evolved to the point that
4
demographers, assisted by computer science, are capable of drawing legislative districts
5
of precisely equal population. They are also capable of using this same technology to
6
create intentional and arbitrary deviations from the ideal population in order to attain
7
partisan and other political gains. The IRC 2011 Legislative Plan’s range of district
8
deviations from +4.07% to -4.71% is remarkably and unnecessarily wide, given the
9
large ideal district population and the absence of any rational state criteria requiring
10
11
such a wide range of deviation.
121.
The IRC was able to create congressional districts of equal population,
12
even when taking into account the Voting Rights Act’s requirements for majority-
13
minority districts.
14
122.
Another way to measure district deviations is in terms of the difference
15
between the most and least populous district called top-to-bottom, overall range or total
16
deviation. For the Final Legislative Plan, total deviation would be calculated by taking
17
the percentage deviation of most populous district, District 10 at +4.07%, and adding to
18
it the percentage deviation of the least populous district, District 7 at -4.71%. Those
19
two percentages are added together without the negative sign (absolute value) to yield a
20
overall deviation range (or total deviation) of 8.79%.
21
123.
In the Final Legislative Plan, the deviation from ideal exceeded 2% in 18
22
districts. The Final Legislative kept district deviations within 2% for only 12 districts
23
and within 1% for only 9 districts. In contrast, the California Citizens Redistricting
24
Commission constructed all 40 state senate districts within a total deviation of 2% and
25
with 12 of 40 districts with 1%. Other states such as Florida, Georgia, Iowa, Minnesota
26
29
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 71 of 85
1
and Nevada were able to keep their state senate district plan total deviations below 2%.
2
Indiana, Oregon and Virginia drew theirs below 4%.
3
124.
Had the IRC properly followed the criteria for drawing districts mandated
4
by ARIZ. CONST. art. 4, pt. 2, § 1(14), or the neutral criteria recognized as justifying a
5
deviation in legislative districts from ideal population, the IRC could not have made all
6
but one Republican-plurality district over-populated and all but two Democrat-plurality
7
districts under-populated.
8
probability.
That such results occurred by chance defies all logic and
9
VOTING RIGHTS COMPLIANCE
10
DOES NOT JUSTIFY THE VARIANCE
11
125.
According to the Census Bureau, the Hispanic portion Arizona’s
12
population increased from 25.3% in 2000 to 29.6% in 2010. According to the results of
13
the U. S. Census Bureau’s 2010 release of the American Community Survey (“ACS”),
14
Hispanics citizens of voting age comprise 17.89% of Arizona’s total citizen voting age
15
population.
16
126.
The Final Legislative Map contained what purported to be no more than
17
seven districts in which Hispanic qualified electors could elect the candidates of their
18
choice, which represented no net increase from 2000 to 2010, despite the significant
19
increase in Arizona Hispanic population from 2000 to 2010. These are Districts 2, 3, 4,
20
19, 27, 29, and 30. A true copy of the IRC’s voting-age population break-down for the
21
Final Legislative Map is attached as Exhibit 15, and is adopted herein by reference. The
22
IRC has labeled these “Hispanic opportunity districts.”
23
127.
The following chart shows the Hispanic voting-age population (“HVAP”)
24
of the seven districts according to the IRC population breakdowns. The chart also
25
shows the Hispanic citizen voting age population (“HCVAP”) of the seven districts.
26
30
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 72 of 85
1
Legislative District
Percentage HVAP
Percentage HCVAP
2
2
52.8%
41.29%
3
3
50.1%
43.59%
4
4
55.7%
45.38%
5
19
60.4%
46.26%
6
27
52.1%
39.82%
7
29
61.9%
43.88%
8
30
50.7%
33.01%
9
128.
The correlation between the under-populated districts and the minority
10
percentages in those districts is stronger than the partisan deviation correlation. A chart
11
demonstrating this pattern is contained Exhibit 19, adopted herein by reference. The
12
five most under-populated districts in the IRC's 2012 map are also five of the districts
13
which the IRC labeled “minority opportunity districts.” One of these districts is Native
14
American and the other four are Hispanic. All seven of the IRC’s Hispanic opportunity
15
districts are under-populated. The ten most under-populated districts in the IRC's 2012
16
map all have a total voting age minority populations in excess of 50% (or less than 50%
17
non-Hispanic adult whites). Only one additional legislative district has a voting age
18
minority population in excess of 50%. That is District 26, which has a population only
19
.28% over the ideal
20
129.
It was totally unnecessary for the IRC to create such high deviations, or
21
patterns of deviations, to draft the Hispanic opportunity districts at the HVAP found in
22
the Final Legislative Map. The collective under-population of the IRC’s seven Hispanic
23
districts is 32,588 persons from what it would have been if all the districts were draw at
24
the ideal population.
25
26
31
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 73 of 85
1
130.
Yet there are a number of whole or split precincts on the boundaries of the
2
IRC’s seven Hispanic opportunity districts persons which have very high percentages of
3
Hispanic adults and contain about 87,500 persons. These seven districts could have
4
been drafted at or above the ideal district population with the same or higher level of
5
HVAP. Thus, the IRC deliberately separated these highly Hispanic precincts from the
6
IRC’s seven Hispanic opportunity districts to use their Democratic votes to shore up the
7
partisan composition of neighboring Democrat-plurality districts, and or to directly or
8
indirectly weaken Republican-plurality districts.
9
131.
This is also true for Legislative District 7, which the IRC drew with a
10
Native American voting age population (“NAVAP”) of 63.1%. This district can be
11
drawn with a population deviation of .02% with a NAVAP of 61.0%, more than enough
12
to qualify this as a Native American majority district and to satisfy both sections two
13
and five of the Voting Rights Act.
14
132.
The Benchmark Plan, or the IRC’s Legislative Plan adopted and pre-
15
cleared in 2003, contains only two districts in which the Hispanic candidates have been
16
consistently elected to both the one state senate and two state house seats in each of
17
these districts. The first is Benchmark District 13, in Maricopa County (West Phoenix,
18
Central Avondale, and Tolleson, which has a Hispanic Citizen Voting Age Percentage
19
(“HCVAP”) of 51.50% and an HVAP of 68.27%. The second is Benchmark District
20
27, Pima County (primarily the west side of Tucson), which has an HCVAP of 43.67%
21
and an HVAP of 49.89. Benchmark Districts 14 and 16 also have HCVAP percentages
22
in the mid-forty percent range. Benchmark District 14 has an HCVAP of 44.27% and
23
an HVAP of 64.90%, while Benchmark District 16 has an HCVAP of 44.27% and an
24
HVAP of 56.74. Benchmark District 16 also has an African-American Citizen Voting
25
Age Population of over 18% - by far the highest in any legislative district. Benchmark
26
32
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 74 of 85
1
District 14 elects primarily non-Hispanic white candidates while Benchmark District 16
2
elected either Hispanic or African-American candidates in the last 5 previous elections.
3
133.
The IRC could have drawn at least four majority HCVAP districts and at
4
least one more majority minority CVAP district. The IRC decided instead to create
5
seven weak Hispanic districts, only two of which had HCVAPs above the HCVAP of
6
Benchmark District 27. Even worse, District 29, the successor district to Benchmark
7
District 13, had its HCVAP reduced from 51.50% to 43.88%.
8
134.
The IRC had the opportunity to draw these seats with HCVAP extremely
9
close to or over 50%, but it declined to do. Three of these districts could have been in
10
Maricopa County, one in Pima County and one running along the State’s southern
11
border from Yuma to Nogales. Instead, the IRC elected to create seven weaker seats.
12
135.
To create the Democrat-plurality legislative districts with negative
13
population deviations, including the minority districts, the IRC moved substantial
14
numbers of Hispanic voters into neighboring non-Hispanic white Democrat districts to
15
shore up the Democrats’ partisan advantage in such districts. Had the IRC followed the
16
Voting Rights Act and ARIZ. CONST. art. 4, pt. 2, §1(14), it would have moved the
17
Hispanic voters around the boundary of the seven Hispanic districts to raise the
18
percentage of Hispanic voters in those districts and give the Hispanic community an
19
equal opportunity to elect more candidates of its choice. The IRC refused to do so for
20
the sole reason of increasing the Democrat percentages of the vote in the districts
21
adjacent to these seven districts.
22
136.
In fact, the IRC engaged in intentional invidious dilution of Hispanic
23
voting strength throughout the map. The IRC systematically spread Hispanic Democrats
24
into predominantly non-Hispanic white Democrat districts to increase the strength of
25
Democratic registration pluralities in them.
26
33
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 75 of 85
1
137.
What’s more, no correlation exists between satisfying Voting Rights Act
2
section 5 and these districts’ under-populations.
3
improvement in minority VAP occurred in the VRA districts between the draft map and
4
the final map. District 2 HVAP dropped by 9.6%. HVAP in Districts 3 and 27
5
marginally declined. HVAP marginally improved in Districts 4, 19, and 29. Native
6
American VAP increased marginally in District 7. Yet the IRC’s under-population of all
7
these districts significantly worsened:
Dist. Population
Deviation
from Ideal
2
Draft 212,863
Draft -204
Final 204,615
Final -8452
8
9
10
11
Population Draft
Change
VAP %
↓8248
61.4%
Final
VAP %
52.8%
VAP
Change
↓9.6%
3
Draft 210,016
Final 204,613
Draft -3051
Final -8454
↓5403
51.2%
50.1%
↓1.1%
4
Draft 214,082
Final 204,143
Draft +1014
Final -8924
↓9938
53.7%
55.7%
↑2.0%
19
Draft 212,096
Final 207,088
Draft -971
Final -5979
↓5008
60.0%
60.4%
↑0.4%
27
Draft 208,413
Final 204,195
Draft -4654
Final -8872
↓4218
53.7%
52.1%
↓1.6%
29
Draft 212,258
Final 211,067
Draft -809
Final -2000
↓1191
61.7%
61.9%
↑0.2%
30
Draft 207,918
Final 207,763
Draft -5149
Final -5304
↓155
50.7%
50.7%
−−−
7
Draft 210,314
Final 203,026
Draft -2753
Final -10,041
↓7288
61.9%
63.1%
↑1.2%
12
13
Specifically, no significant
14
15
16
17
18
19
20
21
22
23
24
25
138.
Thus, compliance with the Voting Right Act is no rationale for the IRC’s
violation of the equal population standard.
The IRC weakened the ability of the
26
34
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 76 of 85
1
Hispanic community to elect Hispanic candidates of their choice in order to elect more
2
non-Hispanic white Democrats.
3
139.
By letter dated April 26, 2012, the Department of Justice declined to
4
interpose any objection to the Final Legislative Map. The April 26, 20012, letter,
5
however, stated that “we note that Section 5 expressly provides that failure of the
6
Attorney General to object does not bar subsequent litigation to enjoin the enforcement
7
of the change.” Despite the DOJ letter, these are inadequate HCVAP percentages to
8
ensure that Hispanic electors could elect candidates of their choice, and therefore violate
9
the anti-retrogression requirement of Section 5 of the Voting Rights Act.
10
140.
An analysis of the retrogression of Final Legislative Map in terms of
11
HCVAP is attached as Exhibit 16, and is adopted herein by reference. The analysis
12
reveals that the IRC majority of Ms. Mathis, Mr. Herrera, and Ms. McNulty deliberately
13
diluted the voting strength of Hispanic voters to protect Democratic-plurality districts. It
14
shows that the following new legislative districts retrogressed from the benchmark
15
districts by significant percentages of CVAP:
16
17
New Legislative District
18
19
20
21
3
19
27
29
30
Percentage HCVAP
Retrogression from
Benchmark District
0.08 5.24 3.29 7.62 11.26 -
the
22
23
24
141.
Such retrogressions could not have taken place had the IRC built the
Hispanic districts first, as is the common approach to adhere to the requirements of
25
26
35
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 77 of 85
1
Section 5, and as was required by ARIZ. CONST. art. 4, pt. 2, §§ 1(14) and 1(16) before it
2
could publish the legislative draft map for the 30-day comment period of Phase Three.
3
142.
The true nature of these districts is revealed by the candidates who filed
4
for office in them. The Secretary of State’s records indicate that the candidates who
5
filed by the deadline for the Democratic nominations for state Senate from District 24
6
are former Senator Ken Cheuvront and Katie Hobbs and for the state House are
7
incumbents Chad Campbell and Lela Alston as well as Jean Cheuvront-McDermott and
8
Tom Nerini.
9
Sherwood and Juan Mendez for the House. See Secretary of State’s 2012 Primary
From District 26, they are Ed Ableser for the Senate, and Andrew
10
Election
11
http://www.azsos.gov/election/2012/Primary/FullListing.htm.
12
influence districts, it is no surprise that only one Hispanic is running in them.
13
143.
full
listing,
found
at
Given these are at most
It would not have been necessary for the IRC’s mapping consultant
14
Strategic Telemetry to use partisan election results to understand exactly what was
15
being done here. Factoring in the effect of under-population of both the Hispanic and
16
adjacent Democratic-plurality districts, coupled with ethnic fragmentation, creates a
17
deliberate and classic gerrymander.
18
144.
Thus, these facts show that the IRC could have made up these districts’
19
shortfalls with minor adjustments in district lines, but chose not to do so to benefit
20
Democratic incumbents or to increase the number of Democratic-plurality districts.
21
145.
What is worse, to the extent the IRC eventually obtained a racial bloc
22
voting analysis, the analysis made no study of the cohesiveness of minority voters, and
23
made no study of the likelihood of white cross-over voting, and therefore was incapable
24
of determining the percentage of CVAP it needed in purportedly Hispanic districts to
25
create an effective Hispanic district, meaning a district in which the Hispanic electors
26
36
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 78 of 85
1
could elect the candidate of their choice, and therefore was also incapable of
2
determining whether it satisfied either Sections 2 or 5 of the Voting Rights Act.
3
146.
What is worse yet, the analysis’s sampling of elections was so limited as
4
to cripple its effectiveness and usefulness. Specifically, the racial bloc voting analysis
5
made no study of primary elections, made no study of endogenous elections, meaning
6
actual legislative elections, and limited its focus to exogenous elections, meaning
7
elections for offices other than the Arizona House of Representatives or Arizona Senate.
8
Because of these deficiencies, the racial bloc voting analysis was essentially useless for
9
determining compliance with sections 2 and 5 of the Voting Rights Act.
10
147.
The only possible explanation for these facts is that the individuals who
11
were drawing the maps for the Arizona Commission were engaged in intentional
12
political gerrymandering.
13
Hispanic voting strength as much as was politically possible so that they could use these
14
Hispanic Democrats to shore up non-Hispanic white Democratic candidates.
15
Commission then raised up the Hispanic Democrat percentages for this purpose by
16
under-populating the Hispanic districts. The Commission then artificially increased
17
Democrat electoral strength even more by under-populating the non-Hispanic white
18
Democrat districts so that fewer Democrat votes were necessary in order to control
19
these districts. This fact was still further enhanced by removing Republican voters from
20
these under-populated non-Hispanic white Democrat districts and placing them in
21
highly Republican and massively overpopulated districts.
Their method for accomplishing this was to dilute the
22
RESPECTING THE COMPETITIVENESSS GOAL
23
DOES NOT JUSTIFY THE VARIANCE FROM EQUALITY
24
148.
The
In 2002, the IRC final legislative map achieved six competitive districts,
25
in which a candidate of either party with a reasonably well-run campaign had a chance
26
of winning election.
37
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 79 of 85
1
2
3
4
149.
In 2012, the IRC retrogressed and achieved only four competitive
districts. These include Districts 8-10, and 18.
150.
As a result, respecting the competitiveness goal did not justify the
deviations from equality in the Final Legislative Map.
5
RESPECTING THE NEUTRAL GOALS
6
DOES NOT JUSTIFY THE VARIANCE FROM EQUALITY
7
151.
Respecting city, town, and county boundaries, undivided census tracts,
8
and communities of interest did not justify the IRC’s deviation from equality among
9
legislative districts.
10
152.
The Final Legislative Map split five of Arizona’s 15 counties twice, and
11
split five counties more than twice. The Final legislative Map left only five counties in
12
a single district. A true copy of the IRC’s splits report is attached as Exhibit 17, and is
13
adopted herein by reference.
14
15
16
153.
The Final Legislative Map split three of Arizona’s Indian reservations
twice, and split four reservations more than twice.
154.
The Final Legislative Map split the City of Glendale among seven
17
districts, the City of Peoria among five districts, the City of Mesa among five districts,
18
the City of Tempe among three districts, the City of Surprise among three districts, the
19
City of Scottsdale among three districts, the City of El Mirage among three districts, and
20
the City of Chandler among three districts.
21
155.
Respecting
boundaries
of
counties,
cities,
towns,
reservations,
22
communities of interest, and undivided census tracts did not require the high deviations
23
contained in the Final Legislative Plan.
24
156.
Similarly, neither compactness nor contiguity bears any relation to the
25
IRC’s deliberate overpopulation of Republican districts and under population of
26
Democrat districts.
38
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 80 of 85
1
157.
Based on the foregoing, the IRC has no valid reason for its violation of the
2
one-person, one vote rule of the United States Constitution or the equal population
3
requirement of the Arizona Constitution.
4
FIRST CLAIM FOR RELIEF
5
158.
6
paragraphs.
7
159.
Plaintiffs adopt herein by reference all allegations of all preceding
The one-person/one-vote requirement of the equal protection clause of the
8
Fourteenth Amendment does not permit legislative districts to deviate from the ideal
9
population except when justified by a compelling state interest. A plan with legislative
10
districts that do not exceed the ideal population by more than five percent over or five
11
percent under the ideal is presumed not to violate the one-person/one vote requirement
12
of the equal protection clause of the Fourteenth Amendment, but the presumption of
13
constitutionality is rebuttable. Larios, 300 F.Supp.2d at 1341.
14
160.
Not compelled or justified by any legitimate state interest, such as
15
compliance with the Voting Rights Act, or the neutral districting criteria, the IRC’s
16
systematic overpopulating of Republican-plurality districts and systematic under-
17
populating of Democratic-plurality districts was arbitrary and discriminatory, denied
18
Plaintiffs, and each of them, their rights to equal protection of the laws guaranteed by
19
the Fourteenth Amendment to the United States Constitution, and deprived them of
20
“rights, privileges, or immunities secured by the Constitution and laws” of the United
21
States, in violation of 28 U.S.C. § 1983. Larios, 300 F.Supp.2d at 1341.
22
161.
The constitutional defects in the Final Legislative Map are so
23
comprehensive that the IRC will have no choice but to abandon the Final Legislative
24
Map and begin anew.
25
26
162.
Because this is an action to enforce 28 U.S.C. § 1983, Plaintiffs are
entitled to an award of attorneys’ fees under 28 U.S.C. § 1988 against the IRC.
39
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 81 of 85
1
163.
Plaintiffs therefore are entitled to judgment declaring that the Final
2
Legislative Map violates the equal protection clause of the Fourteenth Amendment, and
3
28 U.S.C. § 1983, and thereby injures Plaintiffs, and each of them, and is null and void,
4
enjoining Defendants and each of them from implementing or enforcing the Final
5
Legislative Map, mandating that the IRC draft a new map for legislative elections
6
following the 2012 elections, and awarding Plaintiffs reasonable attorneys fees under 28
7
U.S.C. § 1988 against the IRC.
8
SECOND CLAIM FOR RELIEF
9
164.
10
paragraphs.
11
165.
Plaintiff adopts herein by reference all allegations of all preceding
This claim is so related to the First Claim for Relief that it forms part of
12
the same case or controversy under Article III of the United States Constitution, and this
13
Court has jurisdiction of it under 28 U.S.C. § 1367.
14
15
16
17
18
166.
ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) requires the IRC to draw legislative
districts with equal population to the extent practicable.
167.
The IRC could have drawn legislative districts that achieved the ideal
population had it wanted to do so, just as it did with congressional districts.
168.
To do so, however, would have prevented the McNulty/Herrera/Mathis
19
bloc from maximizing the number of Democratic-plurality districts. As a result, the
20
McNulty/Herrera/Mathis bloc deliberately defied the equal population requirement of
21
ARIZ. CONST. art. 4, pt. 2, § 1(14)(B) for the sole purpose of maximizing the partisan
22
interests of the Democratic Party.
23
169.
The Final Legislative Map therefore violates the equal population
24
requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B), and thereby injures Plaintiffs, and
25
each of them, and is null and void.
26
40
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 82 of 85
1
170.
This is an action to compel the members of the IRC, all of whom are state
2
officers, to perform an act imposed by law as a duty on the them, and Plaintiffs
3
therefore are entitled to an award of reasonable attorneys’ fees and other expenses as
4
provided for in A.R.S. § 12-2030 against the IRC and its members in their official
5
capacities.
6
171.
Plaintiffs therefore are entitled to judgment declaring that the Final
7
Legislative Map violates the equal population requirement of ARIZ. CONST. art. 4, pt. 2,
8
§ 1(14)(B), and therefore is null and void, enjoining Defendants and each of them from
9
implementing or enforcing the Final Legislative Map, mandating that the IRC draft a
10
new map for legislative elections following the 2012 elections, and awarding Plaintiffs
11
reasonable attorneys fees and other expenses as provided for in A.R.S. § 12-2030
12
against the IRC.
13
14
15
16
DEMAND FOR JUDGMENT
Plaintiffs respectfully demand that the Court award it the following relief against
all defendants:
A.
Declaring that the Final Legislative Map violates the equal protection
17
clause of the Fourteenth Amendment, and 28 U.S.C. § 1983, and the equal population
18
requirement of ARIZ. CONST. art. 4, pt. 2, § 1(14)(B), and thereby injures Plaintiffs, and
19
each of them, and is null and void;
20
21
22
23
24
25
B.
Enjoining Defendants and each of them from implementing or enforcing
the Final Legislative Map,
C.
Mandating that the IRC draft a new map for legislative elections
following the 2012 elections, and
D.
Awarding Plaintiffs such other relief as is just, proper, or equitable under
the facts and circumstances of this case.
26
41
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 83 of 85
1
Plaintiffs further respectfully demand that the Court award it the following relief
2
against the IRC only: an award of reasonable attorneys’ fees under 28 U.S.C. § 1988
3
and A.R.S. § 12-2030, and an award of other expenses under A.R.S. § 12-2030.
4
5
RESPECTFULLY SUBMITTED ON _______, 2012.
6
7
CANTELME & BROWN, P.L.C.
8
9
10
11
12
13
14
15
By: /s/
David J. Cantelme, SBN 006313
3003 N. Central Avenue, Suite 600
Phoenix, AZ 85012
Tel (602) 200-0104
Fax (602) 200-0106
E-mail: djc@cb-attorneys.com
Attorneys for Plaintiffs Wesley W. Harris, LaMont E.
Andrews, Cynthia L. Biggs, Lynne F. Breyer, Ted
Carpenter, Beth K. Hallgren, James C. Hallgren,
Lina Hatch, Terry L. Hill, Joyce M. Hill, and Sherese
L. Steffens
16
17
SNELL & WILMER L.L.P.
18
22
By: /s/
Michael T. Liburdi, SBN 021894
One Arizona Center
400 E. Van Buren Street
Phoenix, Arizona 85004-2202
Telephone: (602) 382-6000
Fax: (602) 382-6070
E-Mail: mliburdi@swlaw.com
23
Attorneys for Plaintiffs
19
20
21
24
25
26
42
Exhibit 2 to Plaintiffs’ Response
Opposing Motion to Dismiss
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 84 of 85
EXHIBIT 3
Case 2:12-cv-00894-ROS-NVW-RRC Document 29 Filed 06/25/12 Page 85 of 85
OVERPOPULATED DISTRICTS
District
Draft Population
Final Population
Difference
1
207,902
216,451
↑ 8549
5
208,536
219,040
↑10,504
6
214,830
214,244
↓586
11
215,354
213,377
↓1977
12
216,672
221,735
↑5063
13
212,473
211,701
↓772
14
212,710
217,693
↑4983
15
217,592
214,941
↓2651
16
217,209
220,157
↑2948
17
213,449
221,174
↑7725
18
215,957
218,677
↑5228
20
218,650
218,167
↓483
21
213,086
216,242
↑3156
22
210,085
215,912
↑5827
23
206,692
213,451
↑6759
25
217,002
220,795
↑3793
28
213,915
218,713
↑4798