Supreme Court debates Arizona redistricting challenge

WASHINGTON — The justices of the U.S. Supreme Court gave a skeptical response Tuesday to arguments by Republican interests that the lines for Arizona’s 30 legislative districts were illegally drawn.

Attorney Mark Hearne told the justices that the Independent Redistricting Commission acted illegally when it adopted final maps with population deviations of 8.8 percent between the largest and the smallest. The districts, he said, were gerrymandered for improper purposes.

Hearne said the five-member panel designed the map in a way to give Democrats an edge.

Hearne conceded under questioning that partisanship, by itself, is not illegal. And he acknowledged that the commission unanimously concluded that the changes to the map — with one exception — were done to comply with a mandate of the federal Voting Rights Act to not dilute minority voting strength.

He said, though, that neither is permissible when the net effect is to create some districts that are larger than others, violating constitutional provisions of one person/one vote.

So he wants the high court to order the commission to redraw the lines with pretty much equal populations ahead of the 2018 election, as any ruling likely would come too late to affect 2016 lines.

That could give Arizona Republicans an even greater edge than they now have in the Legislature.

But several of the justices said there are flaws in his argument.

Justice Antonin Scalia said Hearne’s case is based on his contention that there was an intent by the commission to violate the law in creating the unequal-sized districts.

But he noted that the majority of a three-judge panel that heard the arguments in Phoenix concluded they had made a good-faith effort to meet the requirements of the Voting Rights Act. And the commission’s own attorneys told them the changes were needed.

“That doesn’t show a bad motive on their part, does it?” the justice asked Hearne.

Hearne said that’s true.

“But I don’t think this court’s ever held that bad legal advice justifies a constitutional violation,” Hearne responded.

Then there’s the fact that, even after the alleged partisan line changes, Republicans still have more seats in both the state House and Senate than the party’s registration would indicate.

Finally, the court has previously said that population differences of less than 10 percent do not by themselves create a claim for a constitutional violation.

“This seems in a category of minor deviations,” said Justice Stephen Breyer. And under questioning from Justice Sonia Sotomayor, Hearne could not cite a case where the court has required a state to explain a population deviation of less than 10 percent.

That three-judge panel did conclude that partisanship did play a role in the lines, at least in part. But the majority accepted the commission’s contention that the main reason for the disparities was the panel’s belief it needed to adopt a final plan to ensure compliance with the Voting Rights Act.

Hearne told the justices Tuesday that was merely a “pretext,” citing the dissent of U.S. District Judge Neil Wake and a chart Wake had prepared showing the population deviations and how virtually all seemed to favor Democrats.

“The chart shows statistically that there was systematic, partisan malapportionment done for that partisan reason,” Hearne told the high court.

To buttress that argument, he said the commission’s own expert said a draft map, one with just a 4 percent difference between the largest and smallest districts, was sufficient to meet Department of Justice approval.

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And as to that 10 percent cutoff, Hearne insisted that challengers are entitled to bring challenges of population differences of less than that figure if they can show evidence of an “illegal purpose,” something he insisted he and his clients have done.

Tuesday’s questioning by the justices of Hearne and state Attorney General Mark Brnovich, who echoed many of the same arguments, does not mean the court ultimately will uphold the lines.

The justices also peppered attorney Paul Smith, who represents the commission, with questions about just how much leeway the panel has to divert from ideal populations — and under what circumstances.

And Justice Samuel Alito was not impressed with the fact that Republicans still have a greater number of seats in the Legislature than their registration would otherwise indicate.

“That’s a red herring,” he said.

But Smith said claims of political partisanship were undermined by the fact that the maps were adopted by the commission without dissent. He said that proves that all five members — two Republicans, two Democrats and a registered independent — believed the final plan provided the best chance of getting the required “preclearance” from the Department of Justice.

One decision, however, stands out.

The two Republicans voted against a change in the final plan to move some Republicans out of Legislative District 8.

That district stretches from Casa Grande through Florence and the San Tan Valley all the way to Globe in one corner, and Oracle in the other. The final plan put it below the “ideal” population of about 213,000, one-thirtieth of the state population in 2010.

As it turned out, though, the district is far from a Democrat shoo-in: Voters elected Democrat Barbara McGuire to the state Senate in 2012, and again last year. But the two House seats have been held by Republicans Frank Pratt and T.J. Shope.

Justice Ruth Bader Ginsburg cited the election results.

Hearne said that’s not the point.

“We would say, your honor, that an incompetent gerrymander is not less a gerrymander when it unequally apportions the population than a competent gerrymander that obtained the partisan objective,” he responded.

Brnovich, in his own arguments to the court, went a bit further than Hearne.

He said it’s legally irrelevant that the commission, in drawing the lines, did so with the intent of complying with the Voting Rights Act. Brnovich told the justices they should instead focus on the one person/one vote requirements of the U.S. Constitution.

“No statute can trump the Constitution,” he said.

That still leaves the question of whether there are any reasons the commission can deviate from ideal population. For example, Justice Alito noted that the 2000 voter-approved state constitutional provision creating the commission requires it to consider not just the Voting Rights Act but other factors, like following political boundaries when possible. He said that could create a situation where moving a line to keep residents of a county together would result in unequally populated legislative districts.

Brnovich conceded such moves would be legal — but only if they were “incidental” to meeting the goal. What happened here, he said, is “systematic underpopulation” of certain districts. And even then, Brnovich said, the desire to keep county residents together is not, by itself, an excuse for changes.

“The road to hell is paved with good intentions,” he told the justices.