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“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

April 22, 2016 Posted by | Arizona, Election Reform, Gerrymandering, Redistricting | , , , , , , | Leave a comment

“Discrimination Lapel Pins”: These “Religious Freedom” Bills Are The New Stand-Your-Ground Laws

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

February 26, 2014 Posted by | Arizona, Civil Rights, Discrimination | , , , , , , | Leave a comment

“A License To Discriminate”: Religious Freedom Is A Shield, Not A Sword

When a bad idea pops up in a state legislature, it’s about as common as the sunrise. When the same bad idea pops up in 10 state legislatures at the same time, something odd is going on.

At issue are proposals to make anti-gay discrimination easier for social conservatives under the guise of “religious liberty.” Kansas, for example, recently generated national headlines for a bill that would have given those with “sincerely held religious beliefs” license to discriminate practically everywhere – restaurants could deny gay couples service; hotels could deny gay couples rooms, even public-sector workers could refuse to provide services to LGBT Kansans.

Kansas’ right-to-discriminate bill was derailed, but as Adam Serwer reported yesterday, very similar proposals have drawn attention in Idaho, Nevada, Ohio, Oregon, South Dakota, Tennessee, and Utah. My colleague Laura Conaway found a related measure in Maine.

“Religious freedom is a shield, not a sword,” Nick Worner of the Ohio ACLU said, paraphrasing George H.W. Bush appointed federal Judge Carol Jackson. “It’s not religious freedom when you’re using it to hurt someone else.”

For proponents of civil rights, the good news is that these proposals are faltering in nine states. The bad news is, a bill in Arizona’s Republican-led legislature actually passed yesterday.

The bill, approved by the Republican-controlled Senate on Wednesday and the GOP-led House on Thursday, would bolster a business owner’s right to refuse service to gays and others if the owner believes doing so violates the practice and observance of his or her religion.

The state Senate passed it on a straight party-line vote, 17 to 13. The House followed suit, 33 to 27, with two Republicans joining all the Democrats in opposition.

This is no modest effort to accommodate religiously motivated discrimination.

Democratic opponents of the bill tried to make clear to GOP lawmakers just how significant the right-to-discriminate measure would be.

[O]pponents say it could also protect a corporation that refused to hire anyone who wasn’t Christian and could block members of the lesbian, gay, bisexual and transgender community from access to nearly any business or service.

“The message that’s interpreted is: ‘We want you to work here, but we are not going to go out of our way to protect you, to protect your rights, to protect your family,’ ” said Rep. Ruben Gallego, D-Phoenix. “God forbid should someone come to the Super Bowl and come to a restaurant that is not going to allow them in.”

The bill is awaiting action from Arizona Gov. Jan Brewer (R), who has not yet taken a position on the proposal.

If she signs it into law, a legal challenge would be inevitable. Organized boycotts would also appear likely.


By: Steve Benen, The Maddow Blog, February 21, 2014

February 22, 2014 Posted by | Discrimination, Religion | , , , , , , , | Leave a comment

Memo to Arizona Republicans: Birth Certificate or Circumcision, You’re Idiots!

The Republicans who control the Arizona Legislature are back at it. The Senate just passed a bill that would bar presidential candidates from the ballot in Arizona unless they submitted extensive paperwork proving they were natural-born Americans.

That means, specifically, a sworn affidavit stating citizenship and age; a long-form birth certificate showing date and place of birth, name of hospital and doctor, and witness signatures; and a sworn statement listing a candidate’s places of residence for the last 14 years. The bill was amended slightly before passing: if a candidate doesn’t have the long-form certificate, supporting evidence like baptismal or circumcision records or notarized affidavits from witnesses could also suffice.

Even that will not necessarily be enough to get on the ballot. Arizona’s secretary of state would have to agree that the records satisfied the requirements. If not, he or she could establish a committee to investigate and submit documents “for forensic examination.”

Whatever happens, nobody is going to pull one over on Arizona. Representative Carl Seel, who has sponsored the same legislation in the Arizona House, insists that this has nothing to do with President Obama or the absurd claims that he’s not an American citizen. Instead, he calls it an “integrity measure,” meant to ensure that the state would never elect candidates who are ineligible.

The base political motivations behind all of this should be clear. But if Arizona’s Republicans are really so devoted to the idea, they should put their own papers where their mouths are.

Senate President Russell Pearce and every senator who voted for the bill and every House member who plans to, should gladly and swiftly post their sworn affidavits along with their birth certificates, baptismal and other records online for the world to see. If this is really a question of integrity, what are they waiting for?

By: The New York Times, Editorial, April 14, 2011

April 16, 2011 Posted by | Arizona, Birthers, Conservatives, GOP, Politics, Racism, Republicans, Right Wing, States | , , , , , , , , | Leave a comment


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