United States District Court, D. Arizona
Wesley W. Harris, et al., Plaintiffs,
Arizona Independent Redistricting Commission, et al., Defendants.
NEIL V. WAKE, District Judge.
NEIL V. WAKE, District Judge, concurring in part, dissenting in part, and dissenting from the judgment:
In this action voters challenge the final map of Arizona legislative districts approved by the Independent Redistricting Commission on January 17, 2012. They allege that the districts violate the one person, one vote requirement of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by systematically overpopulating Republican plurality districts and underpopulating Democratic plurality districts with no lawful justification for deviating from numerical equality. Arizona's final legislative district map violates the Equal Protection Clause unless the divergence from equal population is "based on legitimate considerations incident to the effectuation of a rational state policy, " Reynolds v. Sims, 377 U.S. 533, 579 (1964), "that are free from any taint of arbitrariness or discrimination." Roman v. Sincock, 377 U.S. 695, 710 (1964).
Partisan advantage is not itself a justification for systematic population inequality in districting. No authority says it is, and neither does the Commission or any judge of this Court. So the Commission must point to something else to justify its deviation. Without something else, there is nothing to weigh against the force of equality, and this inequality must fall under constitutional doctrine settled for half a century.
The Commission contends the systematic population deviation for Democratic Party benefit was permissible to increase the likelihood of obtaining preclearance required by Section 5 of the Voting Rights Act. So this case turns on whether systematic population inequality is a lawful and reasonable means of pursuing preclearance.
But after the trial, the United States Supreme Court held Section 5 preclearance unenforceable, extinguishing that sole basis for this deviation. We must apply current law in pending cases, especially cases to authorize future conduct. So even if Section 5 saved the inequality when adopted, it cannot save the inequality for future elections. The Court exceeds its power in reanimating Section 5 to deny the Plaintiffs equal voting rights for the remaining election cycles of this decade.
If we do look back at Section 5, it never had the force the Commission hopes. The Court further errs when it holds, for the first time anywhere, that systematic population inequality is a reasonable means of pursuing Voting Rights Act preclearance. That is contrary to the text, purpose, case law, and constitutional basis for Section 5 preclearance. Until struck down, Voting Rights Act preclearance was a legitimate and mandatory purpose in redistricting for covered jurisdictions. But its legitimacy in general has no connection to the principled bases for compromising population equality. Compliance with the Voting Rights Act requires line-drawing with an eye to expected voting behavior, but only within equal population. Section 5 does not require or permit systematic inequality of population that would otherwise violate the Equal Protection Clause. It does not authorize the federal executive branch to exact such inequality for preclearance, a power the Attorney General disclaims. Nor does it license redistricting authorities to volunteer inequality to the Attorney General for which he never asks. The Commission's reliance on the Voting Rights Act for systematic malapportionment is precluded by the plain language of Section 17 that nothing in the Act "shall be construed to deny, impair, or otherwise adversely affect the right to vote of any person." 42 U.S.C. § 1973n.
Judge Clifton correctly finds that the Commission was actually motivated by both party advantage and hope for Voting Rights Act preclearance. So we have a majority for that finding of fact. And while that fact is obvious on this record, the finding of partisan motive is not needed to make the case. No precedent would require proof and a finding of subjective purpose of party advantage when it is already proven that the systematic numerical inequality has no justification that is legal and reasonable. It is enough to strike down this systematic overpopulation of Republican plurality districts and underpopulation of Democratic plurality districts that neither the Commission's stated reason to get preclearance nor its other actual motive of party advantage is a valid reason for population inequality. So even if one could believe that the aggressive party advantage was just a side effect and no part of the wellsprings of conduct, the Commission's only offered justification still falls. With no valid counterweight, the population-skewed map falls to the force of equal voting rights under the Constitution.
When voting districts were set without standards and behind closed doors, true reasons for systematic population deviation were easily disguised. But in states that have made the redistricting process transparent and accountable with limited grounds to deviate, it is now sometimes possible to prove that systematic population inequality for party advantage has no other reason, or none that passes under equal protection doctrine.
No better example could be found than this. Of 30 legislative districts, the 18 with population deviation greater than ±2% from ideal population correlate perfectly with Democratic Party advantage. The Commission majority showed other partisan bias, but even without that, the statistics of their plan are conclusive. Because this population deviation range of 8.8% is under 10%, the Plaintiffs have the burden of showing it is not "incident to effectuation of a rational state policy." The Commission offers no justification except Voting Rights Act preclearance, which is insufficient as a matter of law. The Commission knew the legal risk they were taking in grounding systematic numerical inequality on the Voting Rights Act. The circumstance that the Commission took that risk with advice of counsel does not make losing the gamble as good as winning, not when they are gambling with other people's rights. The Plaintiffs have carried their burden. This numerical dilution or inflation of all the votes in 60% of Arizona's legislative districts for nearly two million voters cannot be squared with our fundamental law of equal voting rights.
The Commission has been coin-clipping the currency of our democracy- everyone's equal vote-and giving all the shavings to one party, for no valid reason. The novel and extraordinary claim of Voting Rights Act license to dilute votes systematically and statewide should be rejected. That should decide this case and end our inquiry. This plan must be sent back and done again.
I. THE ARIZONA REDISTRICTING PROCESS
By an initiative measure in 2000, Arizona voters removed legislative and congressional redistricting from the legislature and entrusted them to an Independent Redistricting Commission under mandatory processes with substantive standards. See Ariz. Const. art. IV, pt. 2, § 1. Four party commissioners are appointed, one each by the highest-ranking majority and minority members of the Senate and the House of Representatives. They choose an independent fifth member. All appointments are from 25 nominations made by another commission.
The constitutional amendment requires the Commission to follow a four-step process. Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 220 Ariz. 587, 597, 208 P.3d 676, 686 (2009). First, the Commission must create "districts of equal population in a grid-like pattern across the state." Ariz. Const. art. IV, pt. 2, § 1(14). Second, the Commission must adjust the equally populated grid map "as necessary to accommodate" compliance with the United States Constitution and the United States Voting Rights Act and then to accommodate the remaining five goals "to the extent practicable": (1) equal population; (2) geographically compact and contiguous districts; (3) respect for communities of interest; (4) use of visible geographic features, city, town, and county boundaries, and undivided census tracts; and (5) competitive districts, where such districts would create no significant detriment to the other factors. Id. § 1(14)(A)-(F). Third, the Commission must advertise their adjusted draft map for at least 30 days and consider public comments and recommendations made by the Arizona legislature. Id. § 1(16). Lastly, the Commission must establish final district boundaries and certify the new districts to the Arizona Secretary of State. Id. § 1(16)-(17).
Other states have also "adopted standards for redistricting, and measures designed to insulate the process from politics." Vieth v. Jubelirer, 541 U.S. 267, 277 n.4 (2004) (identifying Hawaii, Idaho, Iowa, Maine, Montana, New Jersey, and Washington). In 2009, 13 states gave a redistricting commission primary responsibility for drawing the plan for legislative districts, five states required a backup commission to draw the plan if the legislature failed to do so, two states had an advisory commission, and Iowa required nonpartisan legislative staff to develop maps without any political data to be voted upon by the legislature. National Conference of State Legislatures, Redistricting Commissions, http://www.ncsl.org/research/redistricting/2009-redistricting-commissions-table.aspx (last visited April 23, 2014).
In Arizona, the Commission is required to comply with the state public meetings law and constitutional procedural and substantive requirements. Transcripts of their meetings are available to the public. The Commission's weighing of considerations, including the advice they received from counsel and consultants, is laid bare for public and judicial scrutiny. The voters "imposed a specific process that the Commission must follow, " and judicial review "must include an inquiry into whether the Commission followed the mandated procedure." Ariz. Minority Coal. for Fair Redistricting, 220 Ariz. at 596, 208 P.3d at 685. Limited substantive judicial review addresses only whether "the record demonstrates that the Commission took [the] goal[s] into account during its deliberative process" and whether "the plan lacks a reasonable basis." Id. at 597-98, 600, 208 P.3d at 686-87, 689.
On January 17, 2012, the Commission approved the 2012 final legislative map by a vote of three to two, the independent chair and the two Democratic Party appointees against the two Republican Party appointees. In the prior decade the first redistricting commission drew no district with a population deviation greater than ±2.42%, not for any reason, including Voting Rights Act preclearance, which was eventually received. In contrast, the 2012 map establishes 30 legislative districts with a maximum population deviation of 8.8%. Nine districts have populations that exceed the ideal population by more than 2%. All of those districts have more registered Republicans than registered Democrats. Nine other districts are underpopulated by more than 2%. All of those districts have more registered Democrats than registered Republicans. Therefore, of the 18 districts that deviate more than ±2% from ideal population, all are underpopulated Democratic-leaning districts or overpopulated Republican-leaning districts. Here is the array of districts from most underpopulated to most overpopulated, showing predominant party registration:
(Trial Ex. 40.)
Districts 7, 4, 27, 3, 2, 24, 19, 30, and 8 are all underpopulated by more than 2% and contain more registered Democrats than Republicans (Democratic registration plurality). Districts 14, 20, 18, 28, 5, 16, 25, 17, and 12 are all overpopulated by more than 2% and contain more registered Republicans than Democrats (Republican registration plurality). The following table isolates the 18 districts with population deviations exceeding 2%.
Deviation from Ideal Population District Population # % Democratice registration Plurality 7 203, 026 -10, 041 -4.7 4 204, 143 -8924 -4.2 27 204, 195 -8872 -4.2 3 204, 613 -8454 -4.0 2 204, 615 -8452 -4.0 24 206, 659 -6408 -3.0 19 207, 088 -5979 -2.8 30 207, 763 -5304 -2.5 8 208, 422 -4645 -2.2 Republican registration Plurality 14 217, 693 .2 20 218, 167 .4 18 218, 677 .6 28 218, 713 .6 5 219, 040 .8 16 220, 157 .3 25 220, 795 .6 17 221, 174 .8 12 221, 735 .1
(Doc. 35-1 at 101.)
II. PARTISAN ADVANTAGE ALONE DOES NOT JUSTIFY SYSTEMATIC UNEQUAL POPULATION
A. Unequal Population Under the Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment "guarantees the opportunity for equal participation by all voters in the election of state legislators." Reynolds v. Sims, 377 U.S. 533, 566 (1964). The right to vote is personal, and impairment of the constitutional right to vote touches a sensitive and important area of human rights:
Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.
Id. at 561-62. "Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there." Id. at 563. "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status." Id. at 566 (citations omitted). A person's place of residence "is not a legitimate reason for overweighting or diluting the efficacy of his vote." Id. at 567.
Each state is required to "make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." Id. at 577. Although "it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters, " divergences from a strict population standard must be "based on legitimate considerations incident to the effectuation of a rational state policy." Id. at 577, 579. To satisfy the Equal Protection Clause, legislative apportionment must result from "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). Deviation even for a permitted purpose is discriminatory and unconstitutional if applied only where it benefits one party. Larios v. Cox, 305 F.Supp.2d 1335, 1339 (N.D.Ga. 2004) (three-judge court) (deviation to protect incumbents, but only Democrats), aff'd, 542 U.S. 947 (2004).
Because some legitimate districting goals compete with numerical equality, states may weigh them against each other up to a point. There is a burden-shifting framework for population deviation claims. Generally, a legislative apportionment plan with a maximum population deviation greater than 10% creates a prima facie case of discrimination and therefore must be justified by the state. Brown v. Thomson, 462 U.S. 835, 842-43 (1983). The plan may include "minor deviations, " which is a technical term meaning less than 10%, free from arbitrariness or discrimination. But there is no safe harbor for population deviations of less than 10%. There is a rebuttable presumption that a population deviation less than 10% is the result of an "honest and good faith effort to construct districts... as nearly of equal population as is practicable." Daly v. Hunt, 93 F.3d 1212, 1220 (4th Cir. 1996) (quoting Reynolds, 377 U.S. at 577). The burden shifts to the plaintiff to prove that the apportionment was "an arbitrary or discriminatory policy." Larios, 305 F.Supp. at 1338-39 (citing Roman, 377 U.S. at 710); Daly, 93 F.3d at 1220.
In sum, arbitrariness and discrimination disqualify even "minor" population inequality within 10%. The flexibility accorded to states for those minor deviations, without the initial burden of justifying them, accommodates legitimate interests that are reasonably served by some population inequality. But it is tautologically true that legitimate state goals that harmonize with population equality can carry no weight against the constitutional value of equality. Those goals legitimately may be pursued, but not by population inequality.
B. Partisan Advantage
The Supreme Court has not decided whether partisan advantage itself is a permissible reason for population inequality, that is, whether it carries any weight or no weight against equality in the analysis. See, e.g., Cox v. Larios, 542 U.S. 947, 951 (2004) (Scalia, J., dissenting from summary affirmance) ("No party here contends that... this Court has addressed the question" of whether a redistricting plan with less than 10% population deviation may be invalidated on the basis of evidence of partisan political motivation.); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 423 (2006) ("Even in addressing political motivation as a justification for an equal-population violation... Larios does not give clear guidance.").
The Supreme Court precedents discussed above readily yield the conclusion that partisan advantage is not itself a legitimate, reasonable, and non-discriminatory purpose for systematic population deviation. Again, the Commission does not argue that it is. General principles of voting rights capture the issue, and there is no contrary gravitational pull from any competing constitutional principle. Party discrimination in population punishes or favors people on account of their political views. It is discriminatory and invidious. It serves an unfair purpose at the price of a constitutional right that all voters have, regardless of how they plan to vote.
Bare party advantage in systematic population deviation carries no weight against the baseline constitutional imperative of equality of population. Under settled constitutional analysis, unless the Commission has some other legitimate, actual, and honest reason for the inequality, the force of equality must win out.
Federal law would have this force even if state law purported to legitimate population deviation for partisan advantage. Imagine a state statute that required Democratic-leaning districts to be overpopulated up to % and Republican-leaning districts to be underpopulated down to -5%. Such a statute would add no weight to the weightless purpose of party advantage and could not change the federal equal protection balance from what it would be without the statute. Arizona law makes our task even easier by excluding partisan advantage as a purpose for unequal population or anything else in redistricting. The Arizona Constitution twice mandates equal population, subject only to ...