“People’s Legislative Power”: Arizona’s Nonpartisan Redistricting Plan Is A Slam Dunk At The Supreme Court
In a significant victory for election reform advocates, a unanimous Supreme Court upheld Arizona’s redistricting plan, which had been challenged by Republicans.
The case comes just a year after the Court’s liberals, plus Justice Kennedy, upheld the legitimacy of the Arizona Independent Redistricting Commission, which had been created by ballot initiative. That case was controversial, since the Constitution specifically requires districts created “by the legislature” of each state, not by an independently constituted commission. Justice Ginsberg, writing for the Court, said that the “people’s legislative power” was close enough. Not surprisingly, the Court’s more literalist wing was outraged.
It’s perhaps surprising, then, that today’s case, Harris v. Arizona Independent Redistricting Commission, was decided 8-0. On the one hand, the case may represent a consensus on at least some aspects of election law—and is thus very good news for electoral reform activists. On the other hand, since it basically defers to a state decision, it’s not a robust test case.
The facts of the case are straightforward. Despite being independent, the five-person Redistricting Commission is still divided among Democrats, Republicans, and ostensible independents: two, two, and one, respectively, with intricate appointment procedures. In April 2012, the two Democrats and one independent modified three districts, and the two Republicans voted against, arguing that the new plan favored Democrats.
Contrary to what you might expect, however, the Supreme Court has never said that partisan gerrymandering is against the law. If the districts disadvantage minorities, a redistricting plan might violate what’s left of the Voting Rights Act. And if they contain wildly different populations, the plan might violate the Equal Protection Clause of the Constitution. But it’s not actually against the law to be craven, manipulative, and duplicitous.
Given that, it’s not surprising that the petitioners lost—though it is surprising that they lost unanimously.
First, while Republicans alleged that the plan was designed to benefit Democrats, there was significant evidence in the record that showed it was actually designed to meet the requirements of the Voting Rights Act. (The plan was ratified before the Supreme Court eviscerated the Voting Rights Act in Shelby County v. Holder.) In particular, it seems those concerns swayed the one independent member of the commission.
Second, the population deviations in the Arizona plan were around 4 percent. That’s well below the 10 percent threshold the Court has adopted when applying the Equal Protection clause. True, that variation was all on one side—Republican-leading districts were generally more populous than Democrat-leaning ones. But that’s not necessarily illegal, and anyway the variation can be explained by the need for the plan to conform with the Voting Rights Act.
Third, while part of the Voting Rights Act was held unconstitutional in 2013, in Shelby County, that doesn’t corrupt Arizona’s motives in complying with it back in 2012. At the time, the redistricting commission was trying to obey the law, not stack the decks.
Does this unanimous decision represent a new dawn for election reform? Not quite.
To be sure, the unanimity does suggest that the redistricting commission is now a fait accompli. No one dissented, or even wrote a separate concurrence, to protest its existence. One wonders if Justice Scalia might have done so, but Chief Justice Roberts, certainly, is not likely to question one of the Court’s recent precedents; he is particularly committed to the legitimacy of the Court and its decisions. On the contrary, he has now joined an opinion upholding the commission’s decision—and one that tends to favor Democrats.
On the other hand, the thing about unanimous decisions is that they tend to signal, at least retroactively, that these cases were relatively easy ones. They are precisely not the ones that indicate a lot of movement on key issues.
For example, while the Religious Right cheered a religious freedom case decided unanimously by the Supreme Court last year, the reason it was unanimous is that it was an old school, religious-liberty-as-shield-against-the-government case. That case involved a prison inmate wanting to grow a half-inch beard; no third parties were involved, no harm was done, and the prison’s safety rationales were ludicrous. That’s why it was uncontroversial.
While much of the Court may not like the context of the commission’s decision, that question is now settled, and what’s left is a far-fetched constitutional claim against a reasonable, and well-documented, state agency decision.
And, as usual in unanimous decisions, Justice Breyer’s opinion tends toward the minimalistic. No wild statements of law or policy here; this opinion was generated to build consensus, and it did so.
Still, this is a significant step forward for election reform. The Arizona Redistricting Commission is an innovative idea, with an elaborate attempt to minimize partisanship and increase accountability. There were constitutional grumblings last year when the Supreme Court decided “the legislature” could also mean “the people,” but as a matter of policy, the commission is an important model for how to improve the messy, dirty redistricting process. On it rides many hopes of democracy advocates.
And today, it won a ringing endorsement from a unanimous court.
By: Jay Michaelson, The Daily Beast, April 20, 2016
It’s bad enough that an outrage was perpetrated last week against the voters of Maricopa County, Ariz. It would be far worse if we ignore the warning that the disenfranchisement of thousands of its citizens offers our nation. In November, one of the most contentious campaigns in our history could end in a catastrophe for our democracy.
A major culprit would be the U.S. Supreme Court, and specifically the conservative majority that gutted the Voting Rights Act in 2013.
The facts of what happened in Arizona’s presidential primary are gradually penetrating the nation’s consciousness. In a move rationalized as an attempt to save money, officials of Maricopa County, the state’s most populous, cut the number of polling places by 70 percent, from 200 in the last presidential election to 60 this time around.
Maricopa includes Phoenix, the state’s largest city, which happens to have a non-white majority and is a Democratic island in an otherwise Republican county.
What did the cutbacks mean? As the Arizona Republic reported, the county’s move left one polling place for every 21,000 voters — compared with one polling place for every 2,500 voters in the rest of the state.
The results, entirely predictable, were endless lines akin to those that await the release of new iPhones. It’s an analogy worth thinking about, as there is no right to own an iPhone but there is a right to vote. Many people had to wait hours to cast a ballot, and some polling stations had to stay open long after the scheduled 7 p.m. closing time to accommodate those who had been waiting — and waiting. The Republic told the story of Aracely Calderon, a 56-year-old immigrant from Guatemala who waited five hours to cast her ballot. There were many voters like her.
Phoenix Mayor Greg Stanton, whose government does not control election management, is furious about what was visited upon his city’s residents. The day after the primary, he wrote U.S. Attorney General Loretta E. Lynch asking her to open a Justice Department investigation into the fiasco. It was not just that there weren’t enough polling places, Stanton charged. Their allocation also was “far more favorable in predominantly Anglo communities.” There were fewer voting locations in “parts of the county with higher minority populations.”
In a telephone interview, Stanton made the essential point. Long lines are bad for everyone. But they particularly hurt the least advantaged, who usually have less flexibility in their schedules than more affluent people do. It is often quite literally true that poor voters can’t afford to wait.
“If you’re a single mother with two kids, you’re not going to wait for hours, you’re going to leave that line,” Stanton said. As a result, Stanton said, “tens of thousands of people were deprived of the right to vote.”
A Democrat, Stanton asked himself the obvious question: “Am I suggesting this was the intent of the people who run elections in Maricopa County?” His answer: “In voting rights terms, it doesn’t matter.” What matters, he said, is whether changes in practice “had a disparate impact on minority communities,” which they clearly did.
And there’s the rub. Before the Supreme Court undermined Voting Rights Act enforcement, radical changes in voting practices such as Maricopa’s drastic cut in the number of polling places would have been required to be cleared with the Justice Department because Arizona was one of the states the law covered. This time, county officials could blunder — let’s assume, for the sake of argument, that there was no discriminatory intent — without any supervision.
Now let’s look ahead to Election Day this fall. Michael Waldman, president of the Brennan Center for Justice, notes in his important new book, “The Fight to Vote,” that Republicans have “moved with strategic ferocity” to pass a variety of laws around the country to make it harder for people to cast ballots. The Brennan Center reports that 16 states “will have new voting restrictions in place for the first time in a presidential election.”
Imagine voting debacles like Arizona’s happening all across the country. Consider what the news reports would be like on the night of Nov. 8, 2016. Are we not divided enough already? Can we risk holding an election whose outcome would be rendered illegitimate in the eyes of a very large number of Americans who might be robbed of their franchise?
This is not idle fantasy. Arizona has shown us what could happen. We have seven months to prevent what really could be an electoral cataclysm.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 27, 2016
“The Right Defends A New Jim Crow”: 50 Years Since The Civil Rights Act, Wingnuts Still Don’t Get It
Watching the debate over Arizona’s SB 1062 (better known as the state’s anti-gay Jim Crow law) unfold this past week, I couldn’t help but think of the already iconic line from Matthew McConaughey’s “True Detective” character Rust Cohle: “Time is a flat circle.” As is always the case with the nihilistic and willfully esoteric Cohle, it’s not entirely clear what he’s trying to say with the metaphor, but we get the gist: Like Nietzsche’s “eternal return,” Cohle’s flat circle theory holds that all of us are destined to relive every moment of our conscious lives, forever. It’s as if we all were stuck in the late Harold Ramis’ “Groundhog Day,” but instead of repeating a single day, we repeat our entire lives.
Beyond the fact that, like many others, obsessing over “True Detective” has increasingly become the chief way I spend my free time, Arizona’s brief foray into the politics of segregation reminded me of the flat circle quote because I had recently seen Bryan Cranston’s Broadway debut, “All the Way,” in which the “Breaking Bad” star plays former president Lyndon B. Johnson during the historic period between Kennedy’s assassination and Johnson’s reelection, a time when the 36th president was working feverishly to ensure the passage of the Civil Rights Act of 1964. The play is good and Cranston is great, but what was most striking throughout was how much Johnson’s opponents then sounded like SB 1062’s supporters today. It was, as Cohle would say, some “heavy shit.”
The similarities weren’t merely superficial, either. Sure, the play, written by Pulitzer prize-winning playwright Robert Schenkkan (who obviously did his homework), was littered with hysterical charges of “fascism” and “socialism” and “big government” from no-name Dixiecrats that most of us never knew or were happy to forget. And of course these moments brought to mind much of the anti-Obamacare rhetoric that has emanated from conservatives during the past five years. But the parallels went deeper than that. It wasn’t just the language that sounded so familiar, but the logic behind it, too. Whether conservatives were defending Jim Crow proper or the Southwest’s latest variant, their worldview, all these years later, was disturbingly unchanged.
To explain what I mean, allow me to cite two of conservatism’s leading lights: Kentucky Sen. Rand Paul and all-around media mogul Glenn Beck.
As the opposition to SB 1062 increased in fervency and numbers, the usually loquacious Paul was, unlike his fellow Senate Republican John McCain (who opposed the bill), deafeningly mute. Anyone familiar with Paul’s history knows why: Because the obvious presidential aspirant wanted to avoid reminding people of the unfortunate 2010 interview with Rachel Maddow in which he stated that, even today, he would not support the government-run dismantling of Jim Crow. “I don’t want to be associated with those people,” Paul said, referring to white supremacists who’d bar blacks from their restaurants, “but I also don’t want to limit their speech in any way…” Paul’s orthodox libertarianism told him that the freedom to discriminate was too valuable, too sacred, to let the federal government stand in its way. Like Sen. Barry Goldwater did in 1964, when he voted against the Civil Rights Act, Paul argued that the Constitution had no room for anti-discrimination.
Roughly four years later, Glenn Beck made a similar argument, this time in defense of SB 1062. After doing his best impression of Hamlet, grappling aloud with his competing interest to not be a bigot while on the other hand maintaining allegiance to his understanding of liberty, Beck cut to the chase, telling his coworkers that he could only support Arizona’s bill, because “freedom is ugly.” Like Paul, Beck was sure to make clear that he held no sympathy for anyone who would ban LGBTQ people from their premises. But also like Paul, Beck had no choice but to conclude that the freedom to ostracize and discriminate was, in part, what the American experiment was all about. “I don’t like that world,” Beck said, “but that’s freedom! That’s freedom! Freedom is ugly. It’s ugly.”
High-profile though they may be, Beck and Paul are hardly the only conservatives who still cling to a vision of freedom that many Americans wrongly thought was swept into Reagan’s “ash-heap of history” decades before. Tucker Carlson — who, if Paul is to be Goldwater, we must describe as today’s version of the braying, segregationist Dixiecrats — was adamant in his defense of SB 1062, saying on Fox News that opponents of the bill were advocating for “fascism” and had gone “too far” in their quest to prevent state-sanctioned bigotry. “Everybody in America is terrified to tell the truth,” Carlson warned, “which is, this is insane, this is not tolerance, this is fascism.” Tellingly, when his sparring partner, Fox’s house liberal, Alan Colmes, asked Carlson whether he would have supported the Civil Rights Act, the editor of the Daily Caller could only respond by saying, “Don’t bring [that] into this,” with a sneer.
Even conservatives who are more intellectually inclined than Beck, Paul and Carlson put forward a defense of SB 1062 that could easily and quickly be adopted to oppose the federal government’s dismantling of Jim Crow. Ilya Shapiro of Cato, libertarianism’s premiere think tank and ostensible guardian of liberty for all, wrote, “I have no problem with SB 1062.” Repeating an argument that was offered by Goldwater, Paul, Beck and Carlson, Shapiro maintained that those who would be discriminated against, were SB 1062 to pass, should simply trust that the free market would punish bigots and, eventually, guarantee their liberty. “[P]rivate individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds,” Shapiro wrote. “Those who disagree can take their custom elsewhere and encourage others to do the same.”
The fact that this very same logic recently undergirded a century of Jim Crow seemed to escape Shapiro. Either that or he, like W. James Antle III of the American Conservative, was content to dismiss comparisons to Jim Crow on the grounds that Arizona is not the Jim Crow South and 2014 is not the mid-’60s. “People often argue for or against the civil-rights laws of the 1960s on the basis of abstract principles,” Antle wrote, “but they were in fact a reaction to a very specific set of circumstances.” (This is an argument that, more than anything else, raises the question as to whether this is the first time Antle’s come into contact with an analogy.) Perhaps Shapiro, like Antle, was content to support the bill not because it wouldn’t give the government’s imprimatur to homophobia, but because such an outcome is, in their minds, “not very likely.” After all, what’s a little discrimination in the grand scheme of things?
If we put all these and many other conservative defenses of SB 1062 together, it’s hard not to reach a clear and unsettling conclusion: While conservatives themselves have largely given up the racism that coursed through a previous generation’s defense of Jim Crow, conservatism itself has learned no enduring lesson from the Civil Rights Movement and has made no ideological adjustments as a result. Indeed, National Review’s Kevin Williamson recently declared that Goldwater’s brief against the Civil Rights Act “has been proved correct” for worrying that “expanding the federal mandate … would lead to cumbrous and byzantine federal micromanagement of social affairs.” Going further, National Review’s editors, writing on the 50-year anniversary of the March on Washington (which NR at the time opposed) would only concede that the magazine was wrong to oppose the Civil Rights Movement because its principles “weren’t wrong, exactly” but were instead “tragically misapplied.”
For all of her many flaws, Jan Brewer decided on Wednesday to refrain from applying her conservative “principles” in such a “tragic” manner, opting instead to veto the bill and maybe — just maybe — push her party that much closer to joining the rest of us in the 21st century. And while many conservatives received the veto as a crushing disappointment, or even a step toward “slavery,” I’d caution my right-wing fellow citizens against slipping into outright despair. If the events in Arizona have taught us nothing else, they’ve shown that time is indeed a flat circle; future right-wingers will have plenty of chances to keep getting this most basic question of freedom terribly, terribly wrong.
By: Elias Isquith, Salaon, March 1, 2014
The writing was on the wall all week. Arizona Gov. Jan Brewer had no choice but to veto SB 1062, which would have let businesses discriminate against gay patrons (and presumably others) on religious grounds. The veto was demanded by businesses: from the NFL, sponsors of the Arizona-bound 2015 Super Bowl, to Apple to American Airlines to JPMorgan Chase. Even GOP lawmakers who voted for the bill began quailing and taking back their votes shortly after casting them.
Brewer, who has shown independence from her Tea Party base before, particularly on accepting Medicaid expansion, proved to be up to this challenge, too.
The Arizona Tea Party governor vetoed the bill, she said, because of its “unexpected and unintended consequences. The legislation seeks to protect businesses,” she wrote, “yet the business community overwhelmingly opposes the proposed law.” The bill, she said, “could create more problems than it purports to solve.”
Indeed. The proposed Arizona law shows how quickly America’s corporate leaders, and even some Republicans, have counted dollars and counted votes and realized that power lies with gay people and their straight allies who can’t stand anti-gay bigotry – and won’t patronize those who are selling it.
Even as Arizona Republican politicians like Sens. John McCain and Jeff Flake declared their enduring fealty to the sanctity of man-woman marriage, they could oppose SB 1062 because of the business backlash. This is a stunning turnaround from 10 years ago, when Karl Rove encouraged Republicans to put anti-gay-marriage measures on state ballots to turn out the right and buoy George W. Bush’s reelection against John Kerry in 2004. There was no downside for Rove 10 years ago.
That was the same year that San Francisco Mayor Gavin Newsom became persona non grata even to some Democrats for legalizing gay marriage in San Francisco. From Dianne Feinstein to Barney Frank, Newsom got pummeled for promoting too much gay freedom too soon. But just 10 years later, a far-right governor of a changing but still conservative state thinks she has to veto this gay Jim Crow law that businesses are smart enough to oppose.
Let’s celebrate. But let’s also look plainly at how Democrats have won the culture war but are still fighting a grim conflict over economic populism – including, sometimes, against other Democrats. I look forward to the day when businesses lobby for a hike in the minimum wage and universal preschool and higher tax rates for those at the very top, and Republicans like Jan Brewer face the fact that they have to relent. It may be a long time coming. But let this victory remind us what a difference even 10 years can make, on an issue that was once a loser for Democrats. May we catch up on issues of poverty, income inequality and economic opportunity just as quickly.
By: Joan Walsh, Editor at Large, Salon, February 27, 2014
Awaiting signature on the desk of Arizona Governor Jan Brewer is a bill that might be the most insidious attack on LGBT rights to ever pass both houses of a state legislature. SB1062 would allow anyone—be it an individual, association, partnership, corporation, church, religious assembly, foundation, or other legal entity—to deny services to others simply by asserting their religious beliefs. Interpreted broadly, the bill could override many equal protection clauses in Arizona law, including civil rights: A restaurateur could deny service to an out-of-wedlock mother, a cop could refuse to intervene in a domestic dispute if his religion allows for husbands beating their wives, and a hotel chain could refuse to rent rooms to Jews, Hindus, or Muslims.
Republican legislators have made the intended target of the bill clear in their statements, repeatedly citing a New Mexican photographer who was sued when he refused to shoot a lesbian couple’s commitment ceremony. They claim the bill’s detractors are exaggerating its possible effects and are demonstrating hostility towards people of faith. But there is ample reason to believe that a law like this would open the door to discrimination. Once laws are passed, people who may otherwise be afraid of engaging in questionable behaviors may feel emboldened to do so. Moreover, these laws will likely be used by juries as legitimate reasons to dismiss cases against future defendants—after all, the law is the law.
The perfect case in point for all of this? The stand-your-ground laws which have been enacted in several states across America.
These laws were ostensibly passed to protect citizens from criminals by removing the need to retreat or escape when attacked, the rationale being that criminals would think twice knowing that their victims could legally defend themselves with proportionate force. And yet SYG defenses have been used with alarming frequency, and in scenarios unimaginable when these laws were passed, including by drug dealers and gang members. States which have enacted SYG laws have seen an 8 percent rise in “justifiable homicides,” possibly indicating that those with knowledge of the law are willing to take chances in situations where the law might apply.
Furthermore, SYG defenses are shockingly successful. Seventy percent of people who have invoked the defense have avoided prosecution. In fact, SYG laws seem to have tilted the odds in favor of the shooter: In states that have it, 13.6 percent of homicides have been ruled justifiable, while in those that don’t, only 7.2 percent have been deemed such. Unsurprisingly, the success of a SYG defense has a decidedly racial bias—white-on-black killings are far more likely to be deemed “justified” than any other kind.
What does this all mean for bills like SB1062? Granting people the legal right to invoke religious beliefs to justify their right to refuse service will embolden many people who might have otherwise been afraid to do so. Moreover, the defense could end up being a largely successful one. Certainly jurors who might already be biased will be unafraid to side with the defendants, but even those who might not agree with the law will be hard pressed not to accept its validity; should a defendant make a somewhat rational case for why their religious beliefs would be violated by providing these services, the jurors would be forced by the law to acquit. The law would not only provide cover to judges and juries who might otherwise harbor sentiments against the defendants for whatever reason, but would even compel those who aren’t biased to rule in favor of the accused parties.
Many have compared these laws to the gay propaganda bill that passed in Russia last June, some expressing dismay that such laws could be enacted here in America. In the sense that the Russian law seems to have emboldened many Russians to hunt down LGBT people (a law recently passed in Nigeria seems to doing the same thing), it’s not hard to draw the same conclusions here. These Republican legislators claim to want to protect people of faith, yet they did not invoke a single legitimate instance where a person’s freedom of religion is compromised by having to serve others. Purporting to be against discrimination, these lawmakers are trying to use the victim card against the very people they want to discriminate against. Yet there is a tacit social contract we all sign in pluralistic societies: Even when we do not agree with everyone’s beliefs or lifestyles, we still agree to treat each other fairly.
There’s something vaguely desperate about these laws, the last gasp of a cause aware that it’s dying. They are unlikely to pass constitutional muster; they hardly seem to be trying to do so. In all likelihood, Brewer will veto SB1062. As law, it would not only cause a ridiculous pileup in the courts but could tear at the social fabric of the state, exposing certain prejudices that best remain hidden—the landmines are too numerous for the governor to risk so late into her term. Still, this will hardly be the last we hear of these dubious “religious freedom” arguments. Every step in the civil rights movement was met with resistance. Now that the push for LGBT rights has gained such momentum, the backlash will only get stronger.
By: Eric Sasson, The New Republic, February 24, 2014