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ARIZONA STATE LEGISLATURE

Fiftieth Legislature – First Regular Session

JOINT LEGISLATIVE COMMITTEE ON REDISTRICTING

Minutes of Special Joint Meeting

Friday, October 28, 2011

House Hearing Room 4 -- 10:00 a.m.

CoChairman Weiers called the meeting to order at 10:00 a.m. and attendance was noted by the secretary.

Members Present

Senator Pierce, CoChairman                                       Representative Weiers J., CoChairman

                                                                                    Representative Goodale

Members Absent

Senator Biggs (excused)                                             Representative Pancrazi (excused)

Senator Meza                                                             

Discussion of Constitutional Requirements Concerning Incumbent Residence Information

Greg Jernigan, General Counsel to the Senate, related his background experience in redistricting since 1972.  He made the following points:

• The six Arizona Constitution redistricting criteria are not coequal or equivalent. 
• The first two criteria, compliance with the Voting Rights Act and equal population, are mandated by federal law and supersede any of the state criteria. 
• The Arizona Supreme Court case in which the six criteria were discussed was primarily about challenging the Independent Redistricting Commission (IRC) for not creating enough competitive districts.  Chief Justice McGregor said the competitiveness goal is mandatory and conditional, and if drawing competitive or more competitive districts would not be practicable or would cause significant detriment to the other goals, the IRC must refrain from establishing such districts.
• The IRC is prohibited by Article IV, Part 2, Section 1, Paragraph 15, of the
  Arizona Constitution from considering places of residence of incumbents or candidates. 
• Article IV, Part 2, Section 1, Paragraph 14E, of the Arizona Constitution states that “to the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts,” mainly because it is more difficult to gerrymander for incumbent protection at that level.   
• There are a few instances when it is necessary to go below tract level.  One is to comply with the Voting Rights Act and another is in congressional redistricting when the exact identical population within one person is needed.

Referring to congressional district (CD)-1, Mr. Jernigan described how it has been changed from a competitive district with a slight Democrat advantage to a district in which the IRC tripled the Democrat advantage, which would benefit former Congresswoman Ann Kirkpatrick.

Mr. Jernigan pointed out that the IRC is primarily using election results from 2010, and in one instance, measurements from 2008.  Although the commissioners agreed to do otherwise, the IRC has refused to consider 2004 and 2006 election results as part of the competitive analysis.  In the redistricting of every state in which he has been involved, election data from elections in the last 10 years were used; in fact, the U.S. Department of Justice (U.S. DOJ) requests those election returns when preclearance is considered.  The problem with placing so much emphasis on election results in 2010, or even 2008, is that 2010 was a “watershed” Republican year in Arizona and likely a once-in-a-lifetime occurrence, so the numbers will be skewed because Republicans appear to be much more powerful voter-wise than usual.  He stated that the IRC proposed CD-2, which is similar to the old CD-8, is an example of what happens when election criteria is not used prior to 2010.  He questioned why the IRC “beefed up” the Democrat percentage and noted that some of the mapping is bizarre.  For example, it is difficult to understand what people in northwest Tucson have in common with the Navajo Nation. 

Mr. Jernigan described what he calls the “midnight switch” involving the IRC proposed CD-6 and CD-9 map, which Chairwoman Colleen Mathis presented that had not been seen or discussed before by the commissioners.  It contained changes such as moving Congressman David Schweikert to the western “River District” and Congressman Quayle into the new CD-9 by 500 feet.  He opined that placing Fountain Hills in the western “River District” is bizarre.  At the last minute, the plan was voted on and adopted with changes that were virtually unexplained. 

Referring to CD-9, Mr. Jernigan noted that it was drawn as a light rail district, even though only a small portion of the light rail runs through the middle.  He calls it the “Frankenstein 9” because it is an aggregation of many disparate pieces of entirely different communities thrown together.  Commissioner McNulty mapped it and said the intent is to create a competitive district in the central, north Phoenix and Tempe areas, but people refer to it as the “Schapira district” because Senator David Schapira is the only senator who retained 95 percent of his current LD in the district, which includes all of Tempe.

In response to a question, Mr. Jernigan indicated that he does not know if anyone met with Senator Schapira, but people have pointed out that Commissioner McNulty was appointed by Senator Schapira to the IRC.  He said he is only talking about the effects to the district and what others have said, including testimony to the Committee on Wednesday, October 26, 2011, by a gentleman who said the district does not make sense and was drawn to benefit Senator Schapira. 

John Mills, Legislative Special Projects, demonstrated how the maps were changed during the “midnight switch” as discussed by Mr. Jernigan.

Mr. Jernigan said in relation to LDs, he will focus mostly on Pima County.  The LD map the IRC presented as a draft plan was primarily presented by Commissioner McNulty, and for the most part, was imported from outside.  He noted that James Huntwork, Chairman, 2001 IRC, talked about the former IRC agreeing not to accept outside plans; however, the current IRC is taking outside plans from undisclosed sources.  This is problematic because if the maps are not drawn in public with an explanation, the IRC members become justifiably suspect.

CoChairman Weiers remarked that the President of the Senate and Speaker of the House asked for a roadmap showing justification for the mapping that has not been received, which is suspect. 

Referring to the IRC proposed LD-2, Mr. Jernigan reiterated that a constitutional provision requires that, if practicable, mapping must be done at the tract level, but the IRC went to the bloc level to gerrymander Representative Matt Heinz into a district that is two-thirds Hispanic, even though his bloc is 57 percent non-Hispanic, where he will have a difficult time being reelected. 
Mr. Jernigan surmised that may have been done because Representative Heinz resigned his Minority Leadership position and is probably not a favorite with the Democrats.  He pointed out that Representative Macario Saldate remains in the district by about 300 feet even though he lives in the only area west of south 12 ^th Avenue.

Referring to the IRC proposed LD-10, Mr. Jarnigan noted that Representative Bruce Wheeler remains with a large portion of his existing district by about one-half mile, but the IRC had to go to the bloc group level to do so when it should have been at the tract level.  Representative
Steve Farley also retains about two-thirds of his current district in LD-10 because he lives on the south side of Helen Street, which was also done at the bloc level when the only reason to do that is to protect Representative Farley.  He questioned why the line was not drawn so people on the north and south sides of Helen Street are in the same district; the rest of the district, except those areas, was done at the tract level. 

Referring to LD-3 and LD-4, Mr. Jernigan pointed out that the Pascua Yaqui and
Tohono O’odham Nations not only share the border, but are related tribes.  About 3,000 residents on the Pascua Yaqui Nation were placed in a different LD than the Tohono O’odham, which is puzzling, and may be questioned by the U.S. DOJ if placing the two tribes together would result in an appreciable Native American population.  He surmised that the only reason not to place the tribes together is because Representative Sally Gonzales, who lives on the Pascua Yacqui Reservation, would lose about 95 percent of her current district. 

Mr. Jernigan related that the northwestern Foothills area of Tucson was split up by the IRC.  It is one of the more Republican areas and was thrown into the two Pinal County districts.  
Senator Al Melvin, for example, whose district is currently in Pima County, with the exception of SaddleBrooke, is now in a district that is about 75 percent Pinal County.  On the northeast and eastern sides of Tucson, where the other fairly large concentration of Republicans live in
Pima County, the IRC packed six Republican incumbents: Senators Frank Antenori and Gail Griffin, Representatives Brenda Barton, David Stevens, Peggy Judd and David Gowan.  A map could not be constructed that is much more beneficial to Democrats.  He submitted that although the IRC will claim otherwise, LD-9 and LD-10 are not competitive.

Mr. Jernigan said he is not claiming that Commissioner Linda McNulty blatantly violated the
Arizona Constitution because she drew the map or knew where all of the incumbents live.  What he is saying is that the map she imported from the outside has the same effect as if she did have that knowledge.  The manner in which the IRC is operating without disclosing its sources is dangerous.  He opined that the IRC will not want to disclose the source of the Pima County map because it is overwhelmingly beneficial to Democrats.

Public Testimony

CoChairman Pierce related that Paula Linker, representing self, does not wish to speak, but she noted that the CD mapping exhibits deliberate gerrymandering, which renders her vote almost worthless.

Anna Gaines, Master Educator, American Citizens United, said American Citizens United held meetings to study the maps and determine where people belong in the different districts, but it is a nightmare.  She stated that members of La Raza are advising President Barack Obama and making changes across the country; Arizona is a target for most of the changes because of SB1070 (safe neighborhoods; immigration; law enforcement [Laws of 2010, Chapter 113]).  She said she is concerned about the constitutional relevance of the mapping, which was done for the benefit of the Democrat Party.  She added that many people of Hispanic background do not appreciate being lumped into an area and labeled as Democrats because they are individuals regardless of what they look like or where they come from.

Wendy Schops, President, Sons of Liberty Riders Arizona, stated that Sons of Liberty Riders is a nationwide political bikers group that has been following the redistricting process.  She is very concerned about the formation of the IRC and appointment of the commissioners.  She attended several meetings where she witnessed obvious bullying.  She said she would like to see the redistricting process halted until an investigation can be conducted on the hiring of
Strategic Telemetry and the appointment of Chairwoman Mathis.

CoChairman Weiers asked if she is aware of the letter sent to the IRC by Governor Jan Brewer. 
Ms. Schops responded that she is and the group has expressed its concerns to Attorney General Tom Horne.  CoChairman Weiers supposed that the Governor’s letter followed inquiries and requests to the Governor’s Office.

John Grabow, representing self, endorsed previous testimony, including that of Mr. Jernigan, and expressed appreciation for the Committee’s efforts.  He said the IRC was set up well initially, but after hearing from Mr. Jernigan, he does not believe communities of interest means political interest.  He said he supports the letter issued by Governor Brewer.  He submitted that the IRC’s mapping is a fatally flawed process as evidenced by Mr. Jernigan’s examples and asked the Committee to reconsider its stance, go back to square one, if necessary, and keep the public interest in mind.

Karen Garrett, representing self, Scottsdale, disclosed that she is a full-time volunteer treasurer for Congressman David Schweikert and made the following points:

• An investigation by Attorney General Tom Horne into violation of the open meeting law by the IRC is appropriate, but it is not appropriate for the commissioners to refuse to speak with Mr. Horne.   
• Strategic Telemetry is expensive and one-sided.  The company admitted it was twice as expensive and data from 2004 and 2006 would have to be paid for additionally, as well as $750 per hour for a Harvard consultant. 
• The IRC hired two Democrat lawyers, one who worked for the U.S. DOJ ten years ago and kept telling the commissioners certain things had to be done for preclearance, which seemed odd.
• Many of the discussions involved Democrats stating repeatedly that competitiveness is equal to all of the other criteria. 
• The CD map was presented on a Monday morning and had been worked on over the weekend.  Commissioner Jose Herrera was allowed to have a meeting so the Republicans could look at the map, but he was told that after a short comment period, a vote would be taken. People who were in attendance the Friday before to complain said the commissioners did a good job; the other side did not have a chance to give an opinion. 
• The IRC packed CD-9 and CD-1.  The Mayor of Flagstaff and Flagstaff 40 representatives often showed up at IRC meetings and were pandered to by the IRC.  A few nights ago, 250 people showed up from the Yavapai district, 53 of whom spoke about communities of interest being violated and compactness. 
• She is mainly concerned about CD-6 and CD-4 since Congressman Schweikert’s house is in CD-4. 
• Congressman Raul Grijalva had a very competitive race last time and she heard the district was mapped so the people causing problems were eliminated.  The same thing was done with Congressman Gabrielle Giffords’ district. 
• She is proud of the Governor for taking action by writing the letter.

Ann Heins, representing self, related that she became concerned about the redistricting process when Strategic Telemetry was hired.  The company’s application states that its main clients are MoveOn.org, the Service Employees International Union (SEIU) and the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO), so she does not know how the company could be more partial.  She said she attended all of the hearings where it was clear that the maps were set out in advance, probably from Washington, D.C. and MoveOn.org. 
Strategic Telemetry was hired even though the cost was double that of other bidders and the company did not know anything about redistricting.  She ventured that the IRC held so many hearings to cover up the many hours it met in executive session.  During the speaking portion of the meetings, every minority group was allowed to speak first, the IRC spent two hours talking and then worked on maps that were spread all over the place, of which she did not have copies. 

She said she would like to know why the IRC shredded the voting records and why the three commissioners refused to answer questions.  She would also like to know why there are rules that the State Procurement Office (SPO) must vet contracts like Strategic Telemetry that the SPO walked out on, but then Mayor Phil Gordon’s executive director took over to write and vet the contract.  She said it is a travesty that one-and-one-half hours of testimony from people who disagreed with the Flagstaff Mayor and Council disappeared, the Navajo and Apache Nations were not allowed to have their own sovereign nation and Coconino County was placed with Yavapai County, etc. 

Lynne St. Angelo, representing self, stated that an investigative report was done by the Arizona Capitol Times, after which Attorney General Tom Horne launched an investigation.  She said she lives in CD-8 and LD-26, which are two of the most competitive CDs and LDs in the state.  In the readjusting of the lines, she is now in CD-1, which has a 10-point Democrat advantage, yet it is supposed to be competitive, which can be whatever the IRC wants since it has not been defined.  The previous IRC adopted guidelines and definitions, which this IRC has consistently not done, even though the public asked for definitions.  She stated that Commissioner Herrera said he was advised by a lawyer that he would have immunity on the IRC so he agreed to become a commissioner; however, the commissioners do not have immunity for the hiring aspect.  She read from the investigative report published in the Arizona Capitol Times in July 2011. 

Morgan Dempsey, representing self, stated that when he saw the proposed CD map a few weeks ago, he thought it appeared to be gerrymandered all over the place.  He went to the Internet and obtained the U.S. census data for Arizona.  Based on the county and city boundaries, he drew a map in an hour in which the districts are compact, whereas the IRC spent many hours creating maps that are bizarre and do not meet the compactness criteria.  He submitted that Congressman David Schweikert was placed in an area where 90 percent of the people will not vote for him.

Eugene Diehl, State Vice President, Sons of Liberty Riders, related that he attended many IRC meetings where he watched people sign in to speak, but a continuous parade of leftists, liberals, socialists and D.C.-sponsored MoveOn.org representatives spoke for hours.  The conservatives and Republicans always had to wait until the end to make comments to an empty room.  He said the IRC has gerrymandered to the point that it is borderline illegal and criminal charges should be filed against some of the commissioners for breaking Arizona laws.  The IRC gerrymandered to create five districts in which no one will be elected but Democrats.

Katherine Colbert, representing self, conveyed that she attended many IRC meetings.  She lives in CD-9, the new “Democratic gem.” The IRC abandoned the good map and used competitiveness as a primary factor in drawing a CD in Tempe and Phoenix, violating the constitutional requirements on compactness and use of visible geographic features.  She said the IRC constantly mentioned and referred to the Hispanic Coalition, and Mary Rose Wilcox, Supervisor, Maricopa County, appeared numerous times asking the IRC to look at and consider the Coalition’s map.  She questioned if those people should be investigated for collusion with Commissioners Mathis, Herrera and McNulty because the IRC pandered to the Democrats.

Jeff Schops, representing self, stated that he and Mr. Diehl attended about 14 IRC meetings and were always the last to speak.  He thanked the Committee for looking into this issue.  He added that while he and Mr. Diehl were out having dinner after the meetings, IRC commissioners and people from Strategic Telemetry would show up, which he understands is not supposed to happen.

WITHOUT OBJECTION, THE MEETING RECESSED AT 12:01 P.M. UNTIL 1:00 P.M.  THE MEETING RECONVENED AT 1:03 P.M.  ALL MEMBERS WERE PRESENT EXCEPT SENATOR MEZA AND REPRESENTATIVE PANCRAZI (EXCUSED).

Senator Pierce assumed the Chair.

David Cantelme, Counsel, FAIR Trust, stated that having studied Proposition 106, the Committee and Legislature have the right and obligation to warn and advise the current IRC and even future IRCs based on the Members’ experience, review of the work performed by the IRC and testimony before the Committee.  He detailed what he believes are serious errors on the part of the IRC with respect to process:

• Stating that the IRC is not subject to the open meeting law.  Proposition 106 set an additional 48 hours for notice on the setting of meetings or publication of agendas, which he said he does not believe was meant to exempt the IRC from the open meeting law.

• Commissioners paying lawyers to defend them against actions brought by the
  Attorney General is prohibited by the open meeting law and would be an abuse of taxpayers’ money.  No other public body has the right to do this.  He said he doubts that the voters would have even remotely considered such an exception for the IRC.
• The CD maps were developed by a series of “what if” scenarios, and after a lot of time and effort, there were eventually two main draft maps, one for the so-called “River District” pushed by Commissioners Herrera and McNulty, and the other for the whole counties approach developed by Commissioner Scott Freeman.  Over the weekend of September 24-25, 2011, realizing that maps had to be developed in early November 2011 and the IRC was bogging down, Chairwoman Mathis took both maps home and developed a so-called “compromise” map.  That sort of work should not be done over a weekend in private; it is a poor practice that sets a poor precedent.

Mr. Cantelme indicated that he does not question the motivation of any of the commissioners who put many hours into the process and work as volunteers.  It is a very difficult job and one in which there is little praise and often criticism for the end result; however, the IRC or its work should not be free from legitimate criticism with respect to legal and constitutional criteria.  He detailed what he considers serious constitutional errors at least in development of the CD map: 

• Development of the grid map is a critical component to Proposition 106 because it is to be prepared almost on a random basis, and once it is developed and approved, it can only be adjusted for the six constitutional criteria, which is where he believes the IRC failed.  Specifically, when Chairwoman Mathis returned from the weekend with the so-called “compromise” map, it had a blank in the center, which gave the IRC a free hand to draw in Maricopa County any way it saw fit.  The grid map can and should be adjusted for the other criteria, but it should not be abandoned.
• The use of criterion that is not in Proposition 106.  Much testimony was given from members of the public relative to making three border districts, for which he understood the reason, but having any number of districts that touch the Mexican border is not in the six constitutional criteria.  The IRC half-heartedly followed the Arizona Constitution in the sense that CD-1 touches the Mexican border in an area that is very sparsely populated.  If the intent is to have a congressman who is particularly attuned to border issues because their district is on the border, that is an illusory goal when the area is so sparsely populated. 
• In the “donut hole,” the blank area of Maricopa County in the map presented by Chairwoman Mathis after the weekend of September 24-25, 2011, the first task the IRC undertook was to have Commissioner McNulty draw a competitive district, which is one of the six criteria, but the voters specifically said competitiveness is to be favored only when it causes no significant detriment to the other criteria.  It is impossible to satisfy the substantial detriment requirement if competitiveness is elevated so it is the first and driving reason for which CD-9 was created.
• With respect to CD and LD maps, the number of incumbents that were drawn just outside their district or bunched up implies that at some point, someone considered incumbency in direct contravention of the Arizona Constitution.  What is not known because of the legislative privilege the IRC enjoys, is whether individual commissioners did so or whether maps were provided by outside groups that considered incumbency.  The circumstantial evidence that it was not an accident is compelling because of the focus mainly on Republicans and not on Democrats.
• An issue on which the Committee should consult with counsel is whether the IRC has the constitutional authority to draw congressional maps. 

Mr. Cantelme concluded by stating that there is an anomaly in the position taken by the IRC in relation to the open meeting law.  Two actions are pending in Superior Court in
Maricopa County.  One is brought by Attorney General Tom Horne to compel the IRC to respond to his request for information.  The other is a declaratory judgment action brought by the IRC against the State of Arizona to determine that it is not subject to the open meeting law.  The anomaly is how can the IRC hold executive sessions if it is not subject to the open meeting law, which authorizes executive sessions under limited conditions.  If it is only subject to
Proposition 106, then all of its business has to be done in public and all of the executive sessions violated the Arizona Constitution. 

Senator Pierce announced that the Committee will meet on Monday, November 31, 2011 at
1:30 p.m. in the same location.

Without objection, the meeting adjourned at 1:24 p.m.

                                                                        _______________________________

                                                                        Linda Taylor, Committee Secretary

                                                                        November 15, 2011

(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)

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JLC ON REDISTRICTING

                        October 28, 2011

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