Commission's backers want court to dismiss redistricting lawsuit

2013-12-07T00:00:00Z Commission's backers want court to dismiss redistricting lawsuitBy Howard Fischer Capitol Media Services Arizona Daily Star
December 07, 2013 12:00 am  • 

PHOENIX — Supporters of the Independent Redistricting Commission want a federal court to rule the Legislature has no right to challenge the voter-approved law.

Attorney Tim Hogan is pointing out to the judges the commission was created in 2000 not by the Legislature, but by voters themselves. And the Arizona Constitution specifically precludes lawmakers from seeking to alter or repeal what voters have enacted.

Hogan said that means the lawsuit filed last year by the Legislature seeking to void part of the law is legally invalid.

“They lack the capacity to sue,” he said Friday.

If Hogan wins, the entire challenge would go away.

Peter Gentala, an attorney for the Republican-controlled state House, acknowledged the U.S. Supreme Court has ruled individuals have no legal standing to sue over constitutional questions about federal election laws. And if the Arizona Legislature cannot sue, then no one can.

But Gentala said he doubts it will come to that. He said Hogan’s claim is based on a false premise Arizona voters and the state constitutional provision known as the Voter Protection Act can keep the Legislature from asserting rights it has under the U.S. Constitution.

Hanging in the balance is who has the right to draw the lines for the state’s nine congressional districts.

If the Legislature wins, the lines the Republicans who control both chambers would draw would likely be far different than the ones drawn by the commission, which, in turn, would mean big changes for a congressional delegation that now has five Democrats and four Republicans.

Before 2000 both congressional and legislative districts were crafted by state lawmakers. That usually led to maps which were favorable to incumbents and members of the majority party.

The 2000 initiative gave that power to a five-member commission. Four of the members are named by the top Republicans and Democrats in each chamber of the Legislature; they choose a fifth who is presumably independent.

In its lawsuit, the Legislature argues the 2000 ballot measure violates the U.S. Constitution.

It says procedures for electing members of Congress “shall be prescribed in each state by the Legislature,” which the lawmakers contend trumps what voters approved.

Commission lawyers do not dispute that point.

They argue, however, that Arizona voters, as the ultimate lawmakers, are free to delegate certain legislative duties to a panel other than the formal “Legislature.” And they contend the redistricting panel fits that definition.

But the three federal judges reviewing the issue may never get to decide that issue if they accept Hogan’s argument.

Gentala called Hogan’s arguments “innovative and unique,” but ultimately, flawed because they presume the provision of the Arizona Constitution that bars lawmakers from tinkering with voter-approved laws trumps the rights given to each state legislature in the U.S. Constitution.

“The whole notion is controlled by the Supremacy Clause,” he said, the federal constitutional provisions that says that federal laws take precedence over conflicting state laws.

Gentala also said the Voter Protection Act only limits the Legislature from voting to alter or repeal a voter-approved law. He disputes Hogan’s contention it also bars lawmakers from going to court to kill it.

This is only one of three pending lawsuits dealing with redistricting.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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