Az Minority Coalition v. Az Independent ( 2009 )

SUPREME COURT OF ARIZONA
En Banc
ARIZONA MINORITY COALITION FOR ) Arizona Supreme Court
FAIR REDISTRICTING, an ) No. CV-08-0161-PR
unincorporated association; )
RAMON VALADEZ; STATE ) Court of Appeals
REPRESENTATIVE PETER RIOS; ) Division One
CARLOS AVELAR; MARICOPA COUNTY ) No. 1 CA-CV 07-0301
SUPERVISOR, MARY ROSE GARRIDO )
WILCOX; ESTHER LUMM; VIRGINIA ) Maricopa County
RIVERA; LOS ABOGADOS, an ) Superior Court
Arizona Corporation, ) No. CV2002-004380
)
Plaintiffs/Appellees, )
)
v. ) O P I N I O N
)
ARIZONA INDEPENDENT )
REDISTRICTING COMMISSION; STEVEN )
W. LYNN, in his official )
capacity as Chairman and a )
Commissioner thereof; ANDREA )
MINKOFF; in her official )
capacity as Vice Chairman and a )
Commissioner thereof; DANIEL R. )
ELDER, in his official capacity, )
as a Commissioner thereof; JOSHUA )
M. HALL, in his official capacity )
as a Commissioner thereof; JAMES )
R. HUNTWORK, in his official )
capacity as a Commissioner )
thereof, )
)
)
Defendants/Appellants. )
)
__________________________________)
Appeal from the Superior Court in Maricopa County
The Honorable Kenneth L. Fields, Judge (Retired)
VACATED AND REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division One
219 Ariz. 50, 192 P.3d 409 (App. 2008)
VACATED
________________________________________________________________
PERKINS COIE BROWN & BAIN PA Phoenix
By Paul F. Eckstein
Charles A. Blanchard
Rhonda L. Barnes
And
LEWIS AND ROCA LLP Phoenix
By Richard A. Halloran
Lawrence A. Kasten
Kimberly A. Demarchi
Attorneys for Arizona Minority Coalition for Fair Redistricting,
Ramon Valadez, Carlos Avelar, Peter Rios, Mary Rose Garrido
Wilcox, Esther Lumm, Virginia Rivera, and Los Abogados
GAMMAGE & BURNHAM PLC Phoenix
By Lisa T. Hauser
Cameron C. Artigue
And
HARALSON MILLER PITT FELDMAN & MCANALLY PLC Phoenix
By Jose de Jesus Rivera
Peter T. Limperis
Attorneys for Arizona Independent Redistricting Commission,
Steven M. Lynn, Andrea M. Minkoff, Daniel R. Elder, Joshua M.
Hall, and James R. Huntwork
________________________________________________________________
M c G R E G O R, Chief Justice
¶1 Arizona’s Independent Redistricting Commission (the
Commission) has the sole task of drawing congressional and state
legislative districts. The Arizona Constitution provides
procedural and substantive guidance to the Commission. This
decision considers the nature of this guidance and the extent to
2
which a court can review Commission decisions.
I.
¶2 In November 2000, Arizona voters passed Proposition
106, a citizen initiative that amended the Arizona Constitution
by removing the power to draw congressional and state
legislative districts from the state legislature and reassigning
this task to the newly created Independent Redistricting
Commission. See Ariz. Const. art. 4, pt. 2, § 1(3) and
historical notes. The Commission consists of five volunteer
commissioners appointed in a manner designed to assure diversity
in political party affiliation and county of residence. See id.
art. 4, pt. 2, § 1(3) to (8). The Commission on Appellate Court
Appointments nominates candidates for the Commission, id. art.
4, pt. 2, § 1(4), and commissioners are then appointed from this
pool of candidates, id. art. 4, pt. 2, § 1(6), (8). The Speaker
of the House of Representatives appoints the first commissioner,
followed, in order, by appointments by the minority leader of
the House, by the President of the Senate, and by the minority
leader of the Senate. Id. art. 4, pt. 2, § 1(6). Then, by
majority vote, the four appointed commissioners select the fifth
commissioner, who serves as the chair of the Commission, from
the remaining candidates in the nomination pool. Id. art. 4,
pt. 2, § 1(8). The commissioners then select one of their
3
members to serve as the vice-chair of the Commission. Id. art.
4, pt. 2, § 1(9). Commissioners are appointed in “years ending
in one” and serve concurrent ten-year terms. Id. art. 4, pt. 2,
§ 1(6), (23).
¶3 The constitution permits no more than two members of
the Commission to be from the same political party and requires
that the fifth commissioner not be registered with any party
represented on the Commission at the time of appointment. Id.
art. 4, pt. 2, § 1(3), (8). Candidates must demonstrate a
commitment to performing the Commission’s charge “in an honest,
independent and impartial fashion and to upholding public
confidence in the integrity of the redistricting process.” Id.
art. 4, pt. 2, § 1(3). All Commission members must be
registered Arizona voters who have been “continuously registered
with the same political party or registered as unaffiliated with
a political party for three or more years immediately preceding
appointment.” Id.
¶4 The Commission requires a quorum of three
commissioners, including the chair or vice-chair, to conduct
business, and the Commission can take official action only with
three or more affirmative votes. Id. art. 4, pt. 2, § 1(12).
To ensure transparency, the Commission must conduct its business
“in meetings open to the public, with 48 or more hours public
4
notice provided.” Id.
¶5 The sole task of the Commission is to establish
congressional and legislative districts. Id. art. 4, pt. 2, §
1(14). The Arizona Constitution directs the Commission to
complete its task by following a specified procedure. First,
the Commission must create “districts of equal population in a
grid-like pattern across the state.” Id. Working from that
map, the Commission must next adjust the grid “as necessary to
accommodate” six listed goals:
A. Districts shall comply with the United States
constitution and the United States voting rights act;
B. Congressional districts shall have equal population
to the extent practicable, and state legislative
districts shall have equal population to the extent
practicable;
C. Districts shall be geographically compact and
contiguous to the extent practicable;
D. District boundaries shall respect communities of
interest to the extent practicable;
E. To the extent practicable, district lines shall use
visible geographic features, city, town and county
boundaries, and undivided census tracts;
F. To the extent practicable, competitive districts
should be favored where to do so would create no
significant detriment to the other goals.
Id. The Commission must exclude “[p]arty registration and
voting history data . . . from the initial phase of the mapping
process[,]” but may use that data to “test maps for compliance
5
with the above goals.” Id. art. 4, pt. 2, § 1(15). The
Commission must “advertise a draft map” of both congressional
and legislative districts to the public for at least thirty days
to permit public comment. Id. art. 4, pt. 2, § 1(16). During
the comment period, “[e]ither or both bodies of the legislature
may . . . make recommendations to the independent redistricting
commission[,]” and those recommendations “shall be considered by
the independent redistricting commission.” Id. The Commission
then establishes final district boundaries. Id.
II.
¶6 In May 2001, the Commission commenced the mapping
process by creating a map with “districts of equal population in
a grid-like pattern across the state” and adopting that map on
June 7, 2001. See id. art. 4, pt. 2, § 1(14).1 The Commission
then held hearings during the next three weeks to solicit public
input about the initial grid map. Between July 17 and August
17, 2001, the Commission adjusted the grid map to accommodate
the first five of the six constitutional goals, but did not
adjust for “competitiveness,” the sixth goal.
1
The Commission is charged with developing district
boundaries for congressional and legislative voting districts,
but the Arizona Minority Coalition for Fair Redistricting
challenged only the Commission’s legislative map. Many of the
steps in developing congressional and legislative districts
overlap, but this recitation of facts focuses on those steps
that implicate the legislative map.
6
¶7 On August 17, 2001, the Commission adopted a draft
map. The Commission advertised this draft map for the
constitutionally required thirty days and held another series of
public hearings to obtain additional comment. After reviewing
public comments and making further modifications to the draft
map, on November 9, 2001, the Commission adopted a legislative
map. It certified the legislative district boundaries and
delivered the certification to the Arizona Secretary of State on
November 15, 2001.
¶8 As required by Section 5 of the Voting Rights Act, 42
U.S.C. § 1973c (2000), on January 24, 2002, the Commission
submitted the legislative and congressional redistricting plans
to the United States Department of Justice (DOJ) for
preclearance.2 The DOJ did not object to the congressional plan
but, on May 20, 2002, denied preclearance of the legislative
plan, stating that “the proposed plan, which results in a net
loss of . . . districts . . . in which minority voters can
effectively exercise their electoral franchise, is
retrogressive.” See Beer v. United States, 425 U.S. 130, 141
2
Pursuant to the Voting Rights Act, Arizona must submit any
changes to voting practices or procedures within Arizona,
including the creation of new legislative districts, to the DOJ
or the United States District Court for the District of Columbia
for “preclearance” prior to implementation. See 42 U.S.C. §
1973c.
7
(1976) (noting that the purpose of Section 5 is to “insure that
no voting-procedure changes would be made that would lead to a
retrogression in the position of racial minorities with respect
to their effective exercise of the electoral franchise”).
¶9 In May 2002, the Commission developed an emergency
interim legislative plan to address the DOJ objections. On May
29, 2002, the United States District Court for the District of
Arizona authorized use of the interim plan in the 2002
legislative elections. Navajo Nation v. Ariz. Indep.
Redistricting Comm’n, 230 F. Supp. 2d 998, 1000-01 (D. Ariz.
2002).
¶10 In June 2002, the Commission adjusted the interim
plan, taking into consideration all six of the constitutional
goals, including competitiveness. The Commission adopted a new
draft map on June 25, 2002, and advertised that map to the
public for thirty days. Following the comment period and some
final minor adjustments, the Commission adopted a final
legislative district map on August 14, 2002.
¶11 On March 6, 2002, the Arizona Minority Coalition for
Fair Redistricting and others (the Coalition) filed this action
in superior court asserting that the legislative plan did not
sufficiently favor competitive districts and therefore violated
Article 4, Part 2, Section 1(14)(F) because it did not create
8
competitive districts when it was possible to do so.3 The
Coalition alleged that the Commission’s final map created
“fewer, rather than more, competitive legislative districts” and
it offered an alternative plan to better accomplish all the
constitutional goals.
¶12 After a six-week bench trial in November and December
2003, the trial court concluded that the Commission had failed
to favor the creation of competitive legislative districts and
that this failure was arbitrary and capricious and a violation
of section 1(14)(F). In reaching its conclusions, the court
placed significant weight on the existence of two alternative
plans presented to the Commission. The court found that both
the “Hall-Minkoff Plan,” developed by the Commission, and the
“Hall-Modified Plan,” submitted to the Commission by the
Coalition, “allowed the Commission to create a greater number of
competitive legislative districts without causing significant
detriment to the other goals.” According to the trial court’s
findings, both alternative plans created seven competitive
districts, whereas the Commission’s August 2002 plan created
only four competitive districts. On January 16, 2004, the court
ordered the Commission to adopt a new legislative plan that
3
The Coalition filed an amended complaint on October 16,
2002, challenging the August 2002 legislative district map.
9
would favor competitiveness and be at least as competitive as
the Hall-Minkoff Plan or the Hall-Modified Plan.
¶13 The Commission appealed the trial court’s ruling to
the court of appeals and, in the interim, prepared a new
legislative plan that the trial court approved on April 16,
2004. Ariz. Minority Coal. for Fair Redistricting v. Ariz.
Indep. Redistricting Comm’n (Redistricting I), 211 Ariz. 337,
343 ¶ 10, 121 P.3d 843, 849 (App. 2005). The court of appeals
reversed the trial court’s January 2004 judgment, holding that
the “competitiveness goal is subordinate to [the] other goals
listed in Section 1(14)(B)-(E), and the trial court erred by
entering a contrary ruling.”4 Id. at 364-65 ¶ 113, 121 P.3d at
870-71. The court of appeals also reversed the trial court’s
April 2004 judgment approving the new redistricting plan and
remanded to the trial court to decide whether the Commission
violated Article 4, Part 2, Section 1(14) and (15) or the state
or federal equal protection clauses.5 Id. at 366 ¶¶ 120, 122,
121 P.3d at 872; see also U.S. Const. amend. XIV, § 1; Ariz.
Const. art. 2, § 13.
¶14 On remand, the trial court again found that the
4
The court of appeals addressed additional issues not
relevant to this decision.
10
Commission’s August 2002 legislative plan violated Article 4,
Part 2, Section 1(14) because the Commission did not
sufficiently favor competitiveness. Once more, the trial court
gave significant weight to the fact that more competitive maps
were presented to the Commission, as well as to the fact that
the Commission made only minor adjustments for competitiveness
along the boundaries of the voting districts. The trial court
found that the Commission “never favored competitiveness and
never found that competitive districts were not practicable
and/or would cause significant detriment to the other
constitutional goals.”
¶15 The Commission appealed. The court of appeals again
reversed, this time observing that the Commission “considered
competitiveness and made a finding that a more competitive plan
would cause a significant detriment to the other five
constitutional goals” and concluding that “the Commission’s
findings were supported by substantial evidence.” Ariz.
Minority Coal. for Fair Redistricting v. Ariz. Indep.
Redistricting Comm’n (Redistricting II), 219 Ariz. 50, __, __ ¶¶
20, 26, 192 P.3d 409, 413, 414 (App. 2008).
¶16 The Coalition petitioned this Court for review and
5
The Coalition initially contended that the Commission’s
final redistricting plan violated the state and federal equal
protection clauses, but has withdrawn that claim.
11
asked us to decide (1) whether the Commission must “favor” or
merely “consider” competitiveness; (2) whether the Commission
must include all six of the constitutional goals before
advertising a draft map; (3) whether the Commission must make
objective findings of significant detriment to the other
constitutional goals when rejecting more competitive
redistricting plans; and (4) whether the findings of the trial
court are entitled to review under the clearly erroneous
standard. We granted review to decide these recurring issues of
statewide importance. See ARCAP 23(c). We exercise
jurisdiction pursuant to Article 6, Section 5.3, of the Arizona
Constitution and Arizona Revised Statutes (A.R.S.) section 12-
120.24 (2003).
III.
¶17 The level of judicial review afforded Commission
enactments depends in large part on whether we regard the
Commission as a “legislative body” or as a “constitutional
administrative body.” In Arizona Independent Redistricting
Commission v. Fields (Legislative Immunity Opinion), the court
of appeals treated the Commission as a “legislative body,” see
206 Ariz. 130, 139 ¶ 24, 75 P.3d 1088, 1097 (App. 2003), but in
Redistricting II, the court of appeals referred to the
12
Commission as a “constitutional administrative agency.”6 219
Ariz. at __ ¶ 9, 192 P.3d at 411. We must resolve this conflict
in the court of appeals’ decisions to determine what standard of
review courts should employ when reviewing Commission actions.
A.
¶18 In the Legislative Immunity Opinion, the court of
appeals held that Commission members are entitled to legislative
privilege because the Commission performs a legislative
function. 206 Ariz. at 139 ¶ 24, 75 P.3d at 1097; see also Lake
Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S.
391, 405 & n.30 (1979) (taking a functional approach to
legislative immunity). We agree with the court of appeals’
conclusion that if an entity performs a legislative function,
courts should regard that entity as a legislative body. See
Legislative Immunity Opinion, 206 Ariz. at 138-39 ¶¶ 20-24, 75
P.3d at 1096-97. An entity’s action is legislative if it bears
“the hallmarks of traditional legislation . . . [by]
reflect[ing] a discretionary, policymaking decision . . . [that]
may have prospective implications.” Bogan v. Scott-Harris, 523
U.S. 44, 55-56 (1998).
¶19 To determine whether the Commission is a legislative
6
Despite these conflicting court of appeals statements, on
review the parties agree that the Commission is a legislative
body.
13
body, therefore, we examine the nature of its acts. The
Commission’s acts bear “the hallmarks of traditional
legislation” in that commissioners exercise discretion and make
policy decisions. Commissioners do not merely implement
established redistricting policy; rather, guided by the Arizona
Constitution, they decide where to draw district boundaries. In
addition, Commission enactments carry the force of law and have
prospective implications, other hallmarks of traditional
legislation. Finally, the Commission’s function is one that a
legislature traditionally performs. Not only do enactments that
carry the force of law traditionally originate in the
legislature, but the process of redistricting is itself
traditionally viewed as a legislative task. The United States
Supreme Court “has repeatedly held that redistricting . . . is a
legislative task.” Wise v. Lipscomb, 437 U.S. 535, 539 (1978).
Indeed, in Arizona, the legislature performed the task of
redistricting until 2000. Ariz. Const. art. 4, pt. 2, § 1(1)
(amended 2000). We conclude that the Commission acts as a
legislative body.
B.
¶20 We next address the standard that applies to judicial
review of legislative acts. Courts generally afford substantial
14
deference to legislative enactments.7 When reviewing a
legislative enactment, courts exercise the deference that “we
customarily must pay to the duly enacted and carefully
considered decision of a coequal and representative branch of
our Government.” Walters v. Nat’l Ass’n of Radiation
Survivors, 473 U.S. 305, 319-20 (1985). We do so not only
because legislative enactments originate with a coequal branch
of government, but also because that “institution ‘is far better
equipped than the judiciary to amass and evaluate the vast
amounts of data bearing upon’ legislative questions.” Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-96 (1997) (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994)
(plurality opinion) (internal quotation marks omitted)).
¶21 Courts also operate under the expectation that “the
legislature acts constitutionally.” State v. Murphy, 117 Ariz.
7In some situations, the burden shifts to the government to
demonstrate that a legislative enactment is constitutional.
See, e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382
(1992) (content-based restrictions on speech are “presumptively
invalid”); Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272
(1989) (racial classifications are “presumptively invalid”).
These situations generally involve fundamental constitutional
rights or distinctions based on certain suspect classifications.
Although enactments of the Commission involve voting rights,
which are generally considered fundamental rights, redistricting
alone “does not affect ‘the essence of the fundamental right’ to
vote,” and thus does not eliminate the deference that courts
generally afford to legislative enactments. See Redistricting
I, 211 Ariz. at 348 ¶ 33, 121 P.3d at 854 (quoting Kenyon v.
Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984)).
15
57, 61, 570 P.2d 1070, 1074 (1977). The United States Supreme
Court has observed that judging “the constitutionality of an Act
of Congress [is] ‘the gravest and most delicate duty that this
Court is called upon to perform.’” Rostker v. Goldberg, 453
U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142,
148 (1927) (Holmes, J.)). Accordingly, “statutes are
constitutional unless shown to be otherwise,” Chevron Chem. Co.
v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282
(1982), and “when there is a reasonable, even though debatable,
basis for the enactment of a statute, we will uphold the act
unless it is clearly unconstitutional.” Murphy, 117 Ariz. at
61, 570 P.2d at 1074.
¶22 A redistricting plan receives the same deference as we
afford to other legislation. See Wise, 437 U.S. at 539 (noting
that the United States Supreme Court “has repeatedly held that
redistricting and reapportioning legislative bodies is a
legislative task which the federal courts should make every
effort not to pre-empt”). “[J]udicial relief becomes
appropriate only when a legislature fails to reapportion
according to . . . constitutional requisites . . . .” Reynolds
v. Sims, 377 U.S. 533, 586 (1964). “[I]n the absence of any
finding of a constitutional or statutory violation . . . , a
court must defer to the legislative judgments the plans reflect
16
. . . .” Upham v. Seamon, 456 U.S. 37, 40-41 (1982).
¶23 Most challenges to redistricting plans question
whether a plan violates the Equal Protection Clause. See U.S.
Const. amend XIV, § 1. Whether asserting vote dilution, see,
e.g., Reynolds, 377 U.S. 533, or racial gerrymandering, see,
e.g., Shaw v. Reno, 509 U.S. 630 (1993), these equal protection
claims generally involve the alleged deprivation of fundamental
rights.8 When courts review such claims, we apply an elevated
level of judicial scrutiny. See supra note 7.
¶24 Arizona’s constitution, however, adds unique
procedural and substantive requirements to the mandate that
redistricting plans comply with equal protection principles.
The Coalition’s challenges in this case rest upon those
provisions. Our review of the Commission’s actions thus
involves a two part analysis to determine (1) whether the
Commission followed the constitutionally mandated procedure and
(2) whether the Commission adopted a final plan that satisfies
substantive constitutional requirements.
IV.
¶25 When considering the constitutionality of a
legislative enactment, we usually limit our inquiry to testing
8
Similar claims also arise under the Voting Rights Act.
See, e.g., League of United Latin Am. Citizens v. Perry, 548
U.S. 399 (2006).
17
the final enactment against constitutional requirements. See,
e.g., State v. Stummer, 219 Ariz. 137, 194 P.3d 1043 (2008)
(analyzing hours-of-operation statute under free speech
requirements); State v. Casey, 205 Ariz. 359, 71 P.3d 351 (2003)
(analyzing burden of proof statute under due process
requirements); Aros v. Beneficial Ariz., Inc., 194 Ariz. 62, 977
P.2d 784 (1999) (analyzing consumer lender regulations under
equal protection requirements). We typically do not examine the
process the legislature follows in adopting statutes. The
separation of powers required by Article 3 of the Arizona
Constitution “prohibits judicial interference in the legitimate
functions of the other branches of our government. We will not
tell the legislature when to meet, what its agenda should be,
what it should submit to the people, what bills it may draft or
what language it may use.” Mecham v. Gordon, 156 Ariz. 297,
302, 751 P.2d 957, 962 (1988).
¶26 But when the voters adopted Proposition 106, they not
only transferred the redistricting task from the legislature to
the Commission, but also imposed a specific process that the
Commission must follow in performing this task. See Ariz.
Const. art. 4, pt. 2, § 1(14) to (16). Our review, then, must
include an inquiry into whether the Commission followed the
mandated procedure. If it did not, the Commission violated the
18
constitution as clearly as if it had violated the Equal
Protection Clause by adopting legislation that lacks a
reasonable basis.
¶27 We cannot use the constitutional requirement that the
Commission follow a specified procedure, however, as a basis for
intruding into the discretionary aspects of the legislative
process and then, having intruded, base our review on whether we
conclude that the courts or another entity could offer a
“better” redistricting plan; doing so would impermissibly
enlarge our role. See, e.g., In re Colo. Gen. Assembly, 828
P.2d 185, 189 (Colo. 1992) (“The choice among alternative plans,
each consistent with constitutional requirements, is for the
Commission and not the Court.”); Jensen v. Ky. State Bd. of
Elections, 959 S.W.2d 771, 776 (Ky. 1997) (“Our only role in
this process is to ascertain whether a particular redistricting
plan passes constitutional muster, not whether a better plan
could be crafted.”);  Hartung v. Bradbury, 33 P.3d 972, 980-
81 (Or. 2001) (“In reviewing a plan of reapportionment, this
court is not privileged to substitute its judgment about the
wisdom of the plan. . . . Rather, our task is to determine
whether the Secretary of State has complied with [all applicable
law].”); In re Senate Bill 177, 318 A.2d 157, 159 (Vt. 1974)
(“Review by this Court will be limited to testing the
19
reapportionment by the appropriate constitutional and statutory
standards, even in the presence of alternatives which give the
appearance of better representation.”).
¶28 In reaching their decisions, the commissioners perform
legislative tasks of the sort we make every effort not to pre-
empt. The Commission adopts its final map only after engaging
in several levels of discretionary decision-making. The
constitutional requirement that the Commission accommodate
specified goals “to the extent practicable” recognizes that
accommodating the various goals requires the Commission to
balance competing concerns. This balancing necessarily requires
the commissioners to exercise discretion in choosing among
potential adjustments to the grid map. The Commission’s need to
balance competing interests typifies the political process, in
which each commissioner may well define differently the “best”
balance of these goals. Deciding the extent to which various
accommodations are “practicable” also requires the commissioners
to make judgments that the voters have assigned to the
Commission, not to the courts. We therefore restrict this
portion of our inquiry to determining whether the Commission
followed the constitutionally required procedure in adopting its
final redistricting plan.
20
A.
¶29 To comply with the mandatory constitutional procedure,
the Commission must complete several steps. In Redistricting I,
the court of appeals identified these steps as the four “phases”
of the redistricting process. 211 Ariz. at 352 ¶ 53, 121 P.3d
at 858. That framework provides a useful tool to use in
determining whether the Commission fulfilled the constitution’s
procedural requirements.
B.
¶30 The parties agree that the first phase involves the
creation of “districts of equal population in a grid-like
pattern across the state.” Ariz. Const. art. 4, pt. 2, § 1(14);
Redistricting I, 211 Ariz. at 352-53 ¶ 53, 121 P.3d at 858-59.
The Coalition does not challenge the Commission’s approach to
this phase of its duties.
C.
¶31 In the second phase, the Commission must make
adjustments to the grid “as necessary to accommodate” the six
constitutional goals. Ariz. Const. art. 4, pt. 2, § 1(14);
Redistricting I, 211 Ariz. at 353 ¶ 54, 121 P.3d at 859.
¶32 The first goal mandates that districts comply with the
United States Constitution and the Voting Rights Act, and the
second goal requires that congressional districts and state
21
legislative districts “have equal population to the extent
practicable.” Ariz. Const. art. 4, pt. 2, § 1(14)(A)-(B).
These goals, 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. See, e.g., League of
Latin Am. Citizens, 548 U.S. at 425; Reynolds, 377 U.S. at 561.
The Coalition does not challenge the Commission’s compliance
with these goals.
¶33 The Commission must also accommodate the remaining
four goals “to the extent practicable.” Ariz. Const. art. 4,
pt. 2, § 1(14)(C)-(F). These goals require that “[d]istricts
shall be geographically compact and contiguous,” “[d]istrict
boundaries shall respect communities of interest,” “district
lines shall use visible geographic features, city, town and
county boundaries, and undivided census tracts,” and
“competitive districts should be favored where to do so would
create no significant detriment to the other goals.” Id. To
successfully challenge the Commission’s compliance with these
goals, the Coalition must establish that during its
deliberations, the Commission failed to take into account its
obligation to accommodate these four goals to the extent
practicable.
22
¶34 The Coalition challenges the Commission’s compliance
with the procedural requirements only with regard to
competitiveness, the sixth constitutional goal. To show that
the Commission failed to follow the constitutionally mandated
procedure as to this goal, the Coalition must establish that the
Commission failed to engage in a deliberative effort to
accommodate the goal. If the record demonstrates that the
Commission took this goal into account during its deliberative
process, our procedural inquiry ends.9
¶35 The constitution directs the Commission to favor
competitiveness when doing so is practicable and will not cause
“significant detriment” to the other goals. Id. art. 4, pt. 2,
§ 1(14)(F). As the court of appeals noted in Redistricting I,
the competitiveness goal is both mandatory and conditional:
[I]f drawing competitive or more competitive districts
would not be practicable or would cause significant
detriment to the goals listed in subsections (B)-(E),
the Commission must refrain from establishing such
districts. Conversely, if it would be practicable to
draw competitive or more competitive districts and to
do so would not cause significant detriment to the
goals listed in subsections (B)-(E), the Commission
must establish such districts.
9
Rather than apply this standard, the trial court made
independent findings of fact, which the Coalition argues should
have been reviewed under a clearly erroneous standard. Because
it is not for the courts to consider whether the Commission
might have reached a different result or whether a more
competitive map could have been created, the trial court erred
in making these findings. We therefore do not review the trial
court’s findings of fact.
23
211 Ariz. at 354 ¶ 59, 121 P.3d at 860. The direction that
competitiveness should be favored unless one of two conditions
occurs does not, contrary to the Commission’s assertion, mean
that the competitiveness goal is less mandatory than the other
goals, can be ignored, or should be relegated to a secondary
role. The constitutional language means what it says: The
Commission should favor creating more competitive districts to
the extent practicable when doing so does not cause significant
detriment to the other goals.10
¶36 The record demonstrates that the Commission did engage
in the required deliberative process in meetings open to the
public. As the court of appeals pointed out, the Commission
used three different statistical methods for measuring
competitiveness: Judge It,11 Arizona Quick and Dirty,12 and voter
registration records. Redistricting II, 219 Ariz. at __ ¶ 14,
192 P.3d at 412. The Commission also considered alternative
10
Because the constitution does not establish primary and
subordinate goals, we disagree with the court of appeals’
observation that the unique restriction attached to this goal
“plainly subordinates the competitiveness goal” to the other
goals. Redistricting I, 211 Ariz. at 354 ¶ 59, 121 P.3d at 860.
11
Judge It provides an advanced statistical analysis that
predicts the potential outcome of an election based upon results
from previous elections.
12
Arizona Quick and Dirty is comprised of data extrapolated
from the election results of three Arizona Corporation
Commission races from the 1998 and 2000 general elections.
24
maps that would have increased competitiveness. Id. Minutes
from the June 2002 meetings indicate that the Commission
discussed ways to increase the competitiveness of each
legislative district. The record is sufficient to establish
that the Commission followed the mandatory constitutional
procedure by attempting to accommodate the competitiveness goal,
while taking into account whether greater competitiveness would
cause significant detriment to the other goals.
¶37 The Coalition also argues that the Commission failed
to make objective findings of significant detriment to the other
goals. The constitution, however, does not impose such an
obligation. In fact, the constitution does not require the
Commission to record any specific information as evidence of its
deliberation.13
¶38 We conclude that the Commission fulfilled its
responsibility to attempt to accommodate all the constitutional
goals during its deliberative process.
D.
¶39 The Coalition next asserts that the Commission failed
13
We note, however, that efforts by the Commission to develop
a detailed record of the subject matter of their deliberations
and to state clearly the reasons for reaching its conclusions
will assist the public in understanding the Commission’s
decisions and will assist the courts in determining whether the
Commission followed the mandatory procedure.
25
to comply with the constitutional direction that, during the
third phase, the Commission must “advertise . . . a draft map of
legislative districts to the public for comment . . . for at
least thirty days.” Ariz. Const. art. 4, pt. 2, § 1(16);
Redistricting I, 211 Ariz. at 353 ¶ 55, 121 P.3d at 859. The
Coalition argues that because the constitution required the
Commission to adjust its map for competitiveness during “phase
two” before it advertised the map for public comment during
“phase three,” the Commission’s decision to advertise a draft
map before it attempted to accommodate all the constitutional
goals resulted in a constitutional violation.
¶40 The Coalition’s argument depends upon an overly
technical application of the court of appeals’ four-phase
analysis, which provides an analytic framework, but can neither
add to nor subtract from constitutional requirements. The only
constitutional requirement related to draft maps and public
comment requires that a draft map be advertised to the public
for at least thirty days. Ariz. Const. art. 4, pt. 2, § 1(16).
The record demonstrates that, although the Commission followed a
procedure different from that preferred by the Coalition, the
Commission did meet this constitutional requirement.
¶41 Due in part to sequential legal challenges to the
actions of the Commission, its advertisement of draft maps took
26
place over a considerable period. In 2001, the Commission held
three weeks of public hearings after it adopted its initial grid
map. In August 2001, after adjusting for the first five of the
six constitutional goals, the Commission allowed another thirty-
day comment period. At that point, the Commission had not
adjusted for the competitiveness goal. Had the Commission’s
work ended at this point, we would conclude that the Commission
advertised no map that resulted from Commission efforts to
accommodate all constitutional goals, and therefore did not
comply with the constitution. In addition, a substantial
question would exist as to whether the record adequately
demonstrated any effort to accommodate the competitiveness goal.
But the Commission’s drafting process did not end in the fall of
2001.
¶42 After the DOJ rejected the Commission’s legislative
map, the Commission adjusted its redistricting plan. When the
Commission met in June 2002, the commissioners discussed all the
constitutional goals, including the competitiveness of each
legislative district, as well as the impact that any changes to
district boundaries would have on other districts. The
Commission then adjusted the map in an attempt to enhance
27
competitiveness.14 After making efforts to accommodate all the
constitutional goals, the Commission again advertised a draft
map to the public for the constitutionally mandated thirty days.
By advertising this final draft map, the Commission complied
with the publication and comment requirements of the map-drawing
process.
¶43 Measured against this record, the Coalition’s argument
devolves to the assertion that the Commission may advertise a
plan for public comment only after it has attempted to
accommodate all constitutional goals. We see nothing in the
14
The Coalition insists that the Commission had available and
should have used a better methodology for determining the
competitiveness of districts and that the Commission should have
better utilized the competitiveness consultant it hired.
Inquiries into the Commission’s chosen method for measuring
competitiveness, however, fall outside the scope of judicial
review. See supra ¶¶ 27-28. The Coalition also asserts that
when the Commission did accommodate competitiveness, the
commissioners treated it “as mere fine tuning around the edges
that would not be a dramatic change” from the Commission’s
previous draft map, and claims that the Commission rejected
changes that would have increased competitiveness on an ad hoc
basis. Inquiring into that argument would lead us to an
evaluation of the adequacy of the Commission’s efforts to
accommodate the competitiveness goal and the reasoning behind
the Commission’s rejections of additional changes in the map;
those issues also fall outside the scope of judicial review.
See supra ¶¶ 27-28. Of course, mere pretextual deliberation
about any of the goals would not satisfy the constitution, but
the record in this matter does not support any claim that the
Commission’s deliberations were pretextual. At most, the record
shows that the Coalition and the Commission differed as to the
use the Commission made of the information available to it and
the weight the Commission should have attached to that
information.
28
constitutional language that would lead us to conclude that the
multi-step approach the Commission followed, which allowed
public comment on more than one draft map, violates any
constitutionally mandated procedure. The Commission must, of
course, eventually advertise for public comment a map that
incorporates Commission attempts to accommodate all the
constitutional goals, but the Commission did that here.15
E.
¶44 In the fourth and final phase of the mapping process,
after the public comment period has ended, the Commission must
“establish final district boundaries” and certify the new
districts to the Secretary of State. Id. art. 4, pt. 2, §
1(16)-(17); Redistricting I, 211 Ariz. at 353 ¶ 55, 121 P.3d at
859. The Coalition does not challenge the Commission’s approach
to this phase of its duties.
V.
¶45 Once we determine that the Commission complied with
the procedural requirements of the constitution, the only
remaining question for our review is whether the final district
map complies with substantive constitutional requirements.
15
During oral argument, the Commission observed that, with
the benefit of experience, it would now recommend that the next
Commission adjust its draft map to reflect all constitutional
goals before advertising it for public comment.
29
Because this action does not involve the alleged deprivation of
fundamental rights, we ask if the party challenging the
redistricting plan demonstrated that no reasonable redistricting
commission could have adopted the redistricting plan at issue.
See, e.g., Aros, 194 Ariz. at 67-68, 977 P.2d at 789-90; Ariz.
Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 556, 637 P.2d
1053, 1059 (1981); see also Murphy, 117 Ariz. at 61, 570 P.2d at
1074 (“[W]hen there is a reasonable, even though debatable,
basis for the enactment of a statute, we will uphold the act
unless it is clearly unconstitutional.”).
¶46 We conclude that the Coalition did not meet its burden
of establishing that the plan lacks a reasonable basis. The
Coalition’s challenge largely rests on its contention that more
competitive maps were presented to and rejected by the
Commission. Even if we accept those assertions as true, the
fact that a “better” plan exists does not establish that this
plan lacks a reasonable basis. Although the Commission’s
decisions may be debatable, the Coalition did not show that no
reasonable commission would have adopted this plan.
VI.
¶47 For the foregoing reasons, we vacate the opinion of
the court of appeals, reverse the judgment of the trial court
and remand to the trial court with instructions to enter
30
judgment in favor of the Commission.
_______________________________________
Ruth V. McGregor, Chief Justice
CONCURRING:
_______________________________________
Rebecca White Berch, Vice Chief Justice
_______________________________________
Michael D. Ryan, Justice
H U R W I T Z, JUSTICE, concurring in all but Section IV(D) of
the Court’s opinion and concurring in the result
¶48 The Court today neatly describes the proper judicial
role in reviewing decisions of the Independent Redistricting
Commission. When the Commission adjusts the grid map “as
necessary to accommodate” the six constitutional goals in Article
4, Part 2, Section 1(14) of the Arizona Constitution, it acts, as
the Court concludes, in a quintessentially legislative fashion.
The Constitution requires that four potentially conflicting goals
be balanced against each other “to the extent practicable.”
Ariz. Const. art. 4, pt. 2, § 1(14)(C)–(F).16 This directive
16
As the Court notes, goals (A) and (B) either expressly or
implicitly mirror the requirements of the United States
Constitution or federal statutory law, and compliance with these
goals can be decided as a matter of objective law. See ¶ 32,
supra.
31
will almost inevitably lead to a final product in which none of
these goals is achieved to the maximum possible extent. Our
substantive review of the final Commission legislative maps for
compliance with goals (C) through (F) therefore should be, as the
Court teaches, quite deferential. Under that standard of review,
I cannot conclude that the end result in this case violates the
Constitution.
¶49 I also agree with the Court that, in adopting
legislative maps, the Commission must follow the procedures
mandated in subsections 1(14) and (16). Indeed, our substantive
deference in review of the end product is, in my mind, a
corollary of the Commission’s adherence to the Constitution’s
procedural mandates. In transferring responsibility for
decennial redistricting from the Legislature to a bipartisan
Commission, the people necessarily recognized that the process
involved a series of value judgments; they left those judgments
to the Commission, but required that they be made through a
specific process, so as to optimize consideration of the listed
constitutional goals and minimize the partisan concerns that
traditionally dominate redistricting efforts.
¶50 I part company with the Court’s well-reasoned opinion
only on one point. In my view, the Constitution does not allow
the Commission to advertise a draft map without first making
32
adjustments for all six of the goals specified in subsections
1(14)(A) through (F). I do not believe the Constitution
countenances the procedure used by the Commission here – first
adjusting the grid only for goals (A) through (E), advertising a
draft map, and then only after receiving public comments, turning
to the goal of competitiveness.
I.
¶51 The Constitution, as the Court recognizes, identifies
four phases in the redistricting process. See ¶ 29, supra.
After adopting an initial grid-like map of districts of equal
population in phase one, the Commission undertakes phase two, in
which “[a]djustments to the grid shall then be made as necessary
to accommodate the [six] goals as set forth” in subsections (A)
through (F). Ariz. Const. art. 4, pt. 2, § (1)14. In phase
three, the Commission advertises the draft map resulting from the
phase two adjustments and receives comment. Id. § (1)16. In
phase four, final district boundaries are adopted. Id.
¶52 The Commission did not follow the constitutional
roadmap here. Rather, in phase two it adjusted only for goals
(A) through (E). The Commission then advertised the draft map,
and only after receiving comments considered further adjustments
for competitiveness. The Court concludes that no constitutional
violation occurred because after adjusting for competitiveness,
33
the Commission advertised the adjusted map anew before final
adoption.
¶53 The sequential requirements of subsections 1(14) and
(16), however, are clear – after propounding the initial grid in
phase one, the Commission is required in phase two to make
necessary adjustments to serve all six constitutional goals. The
Constitution plainly states that in phase two “[a]djustments to
the grid shall then be made as necessary to accommodate” goals
(A) through (F). Ariz. Const. art 4, pt. 2, § 1(14) (emphasis
added). The Constitution thus requires that the adjustments be
made before the phase three advertisement of the draft maps and
does not contemplate that consideration of any of the goals be
deferred.17
¶54 The Court suggests that such a constitutional
construction is “overly technical.” See ¶ 40, supra. But I
would strictly construe the Constitution because its plain
language serves an important purpose. Each of the five goals in
subsections (B) through (F) must be accommodated “to the extent
practicable.” Ariz. Const. art. 4, pt. 2, § 1(14)(B)-(F). If
17
If the phase three advertising and comment lead to
significant adjustments to the map, nothing in the Constitution
prevents the Commission from advertising the map anew. My
concern today is not that the Commission undertook steps in
addition to those mandated by the Constitution, but rather that
it did not complete phase two before undertaking phase three.
34
the Commission adjusts only for goals (B) through (E) in a
truncated phase two and then adopts a draft map for
advertisement, it will necessarily already have concluded that
the draft map does the best job practicable of meeting those five
goals. It will thus be quite difficult thereafter for the
Commission to conclude that further adjustments to the map can be
made to serve competiveness, which is only “favored where to do
so would create no significant detriment to the other goals.”
Ariz. Const. art. 4, pt. 2, § 1(14)(F). Such a process
inevitably threatens to relegate the competitiveness goal to
precisely the “secondary role” that the Court correctly abjures.
See ¶ 35 & n.10, supra.
¶55 The current Commission has wisely recommended that its
successor adjust the draft map to reflect all constitutional
goals before advertising it for public comment. See ¶ 43 n.15,
supra. But such a recommendation has no binding effect. I would
make clear that this procedure is not simply preferred, but
rather mandated by the Constitution, and therefore cannot join
Section IV(D) of the Court’s opinion.
II.
¶56 I nonetheless concur with the Court’s ultimate
disposition of this case. Only one cycle of legislative
elections remains under the plan now at issue. As a practical
35
matter, it makes no sense to require a lame-duck Commission to
begin the process anew for only one set of elections. I doubt
that the constitutional procedures could be completed – and
review by the Department of Justice finished – in time for the
2010 elections. Even ignoring time pressures, the product of
such a process would necessarily be based on now well-outdated
census data, resulting in districts malapportioned at birth.
¶57 In addition, as the Court notes, after the Department
of Justice found that the Commission’s initial plan did not pass
Voting Rights Act muster, the Commission effectively was required
to begin anew. See ¶ 10, supra. After an interim plan was
adopted to meet the Department’s concerns, the Commission
adjusted the interim map, at least considering during that
process all six constitutional goals. Id. The effect of the
rejection of the initial plan was therefore to return the
Commission to phase two, and the Commission’s ostensible
consideration of all six goals in the renewed process seems to
satisfy the constitutional procedural framework. I therefore
concur in the result.
__________________________________
Andrew D. Hurwitz, Justice
36
CONCURRING:
_______________________________________
Garye L. Vásquez, Judge*
*
Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3, of the Arizona Constitution,
the Honorable Garye L. Vásquez, Judge of the Arizona Court of
Appeals, Division Two, was designated to sit in this matter.
37