Wednesday, November 23, 2011

Brewer's latest move to seize control of the redistricting process rebuffed by AZ Supreme Court

...aka - the Hail Mary pass fell harmlessly to the ground...

Late this afternoon, the Arizona Supreme Court issued an order regarding the "motion to reconsider" its decision to reinstate Independent Colleen Mathis to the Arizona Independent Redistricting Commission (AIRC).

To sum up - motion to stay the reinstatement of Mathis is denied, motion to reconsider the entire previous order is denied, and the Court clarified that in her letter removing Mathis from the AIRC, Governor Jan Brewer didn't document any acts or behavior that rises to the level of being constitutionally sufficient to justify Mathis' removal.

In other words, they said "What part of "NO!" did you not understand?"only they did it in a judge-y way.  Very proper, very dignified, and lots of big words.  :))

The order:
IT IS ORDERED granting Respondents’ Joint Motion for Expedited Consideration.

IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Stay Order Reinstating Petitioner-Intervenor Mathis Pending Reconsideration.

IT IS FURTHER ORDERED denying Motion to Intervene of Andrew M. Tobin, Speaker of the Arizona House of Representatives and Joinder in the Governor and Senate’s Motion for Reconsideration. The Court will treat the Motion as an amicus brief.

IT IS FURTHER ORDERED denying Respondents’ Joint Motion to Reconsider Order of November 17, 2011, except insofar as the motion seeks clarification of the Order. As the Order notes, the Court accepted jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution. The Court further concluded that the issues presented are not political questions committed by the Constitution to the unreviewable discretion of the other branches of government.

IT IS FURTHER ORDERED clarifying the Court’s November 17, 2011 Order as it concerns the letter of November 1, 2011, from the Acting Governor to Colleen Mathis. The Order states that the November 1, 2011 letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution. Respondents seek clarification whether the Court’s conclusion was based on the format of the November 1, 2011 letter, which stated that the Governor had determined that Mathis had “failed to conduct the Arizona Independent Redistricting Commission’s business in meetings open to the public, and failed to adjust the grid map as necessary to accommodate all of the goals set forth in Arizona Constitution Art. 4, Pt. 2, § 1(14).”

The Governor’s November 1, 2011 letter constitutes her findings of grounds for the removal of Mathis. The Court’s conclusion that the letter does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” is based on the letter’s substance, not its format. The letter does not, as a matter of law, identify conduct that provides a constitutional basis for removal.

One ground identified in the Governor’s letter is a failure to conduct the commission’s business in meetings open to the public.

The Constitution directs that “[w]here a quorum is present, the independent redistricting commission shall conduct business in meetings open to the public, with 48 or more hours public notice provided.” Ariz. Const., Art. IV, Pt. 2, § 1(12). The statutory Open Meeting Law defines “meeting” in terms of a gathering of a quorum, A.R.S. § 38-431(4), and it directs that all meetings of public bodies shall be public meetings and that legal action of Supreme Court Case No. CV-11-0313-SA public bodies shall occur in public meetings. Id. § 38-431.01(A). A failure to conduct the business of the commission in meetings open to the public must at least involve violations of these laws for it to constitute “substantial neglect of duty” or “gross misconduct.” (We do not decide whether the constitutional provision preempts any statutory Open Meeting Law requirements, an issue that is being litigated in another forum.) There is, however, no allegation of any non-public meeting of a quorum of the commission in the Governor’s October 26, 2011 letter or in the responses thereto. Nor does the Governor’s November 1, 2011 letter find that a non-public meeting of a quorum of the commission occurred.

With regard to preparing maps, the commissioners perform legislative tasks in which they must “balance competing concerns” and “exercise discretion in choosing among potential adjustments to the grid map,” Ariz. Minority Coalition for Fair Redistricting v. Arizona Indep. Redistricting Comm’n, 220 Ariz. 587, 597 ¶ 28, 208 P.3d 676, 686 (2009), and the commission’s adoption of final maps is subject to judicial review for compliance with the Constitution’s procedural and substantive requirements. Id. at 596 ¶ 24, 208 P.3d at 685. The Governor’s disagreement with commissioners over whether they have properly considered constitutional criteria for adjusting the grid map before they have completed final maps is not, as a matter of law, a constitutional basis for removal.
 Even before I received the order in my inbox, the reaction from House Speaker Andy Tobin was there.  Needless to say (but I'm going to say it anyway :) ), he's ratcheting up the rhetoric -
“With the Supreme Court having clearly overstepped its bounds, I continue to believe that the reinstatement of Colleen Mathis as chairwoman of the Independent Redistricting Commission represents a dangerous threat to the independent process Arizona voters want and deserve. I fully support any and all efforts by the Governor to immediately remove Chairwoman Mathis and call the Legislature into special session to refer a measure to the ballot allowing voters the opportunity to repeal this commission, which has shown total disregard for the Arizona Constitution. We must act immediately to ensure that this broken and biased process does not continue to unfold.”
Look for an attempt to put a repeal of Prop 106 (the ballot question in 2000 that created the independent redistricting process) before the voters of the Republican primary in February.

After that, look for federal intervention by the US Department of Justice.

And after that, or even if federal intervention doesn't happen, look for AZ's Republicans to have their asses handed to them next November. 

Willfully and maliciously overriding the will of the voters for reasons that range from purely partisan to purely personal tends to tick off voters, even those who normally don't pay much attention between elections.

On a related note:  the AIRC has scheduled three business meetings next week in Tempe, at the Fiesta Inn at the SW corner of Priest and Broadway.

On Tuesday, they will meet at 1:30 p.m. (agenda); Wednesday at 4 p.m. (agenda); Thursday at 1 p.m. (agenda).

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