Letter Imperfect

The Arizona Supreme Court rejects Gov. Jan Brewer's effort to control redistricting

The Arizona Supreme Court put at least a temporary stop to Gov. Jan Brewer's effort to remove the chairwoman of the Independent Redistricting Commission last week.

In a brief order, the court ruled that it had authority in the case and that Brewer had acted illegally in removing Colleen Mathis from the five-member panel, which has the job of drawing political boundaries for congressional and legislative races.

The court order came just three hours after attorneys for Mathis and Brewer completed their oral arguments last Thursday, Nov. 17.

The court decision was the latest twist in a political drama that has pushed the state to the edge of a constitutional crisis.

In her argument before the court, commission attorney Mary O'Grady argued that Brewer had failed to follow proper procedure in removing Mathis, while attorney Thomas Zlaket, a former Arizona Supreme Court chief justice who is defending Mathis, said that his client was a victim of political railroading.

"This court doesn't live in a cocoon; it lives in the real world," Zlaket said. "It must not ignore the motivations behind the partisan political conduct in question. Without an order from this court reinstating Colleen Mathis to her lawful, rightful position, the Independent Redistricting Commission becomes a joke—a laughable joke subject to manipulation by the very people that the commission was designed to insulate from."

But Lisa Hauser, a private attorney who represented the previous redistricting commission but didn't get a job representing the current commission, argued on Brewer's behalf that the court didn't have any authority to step in.

Even if Brewer were removing a commissioner for completely false charges, Hauser told the justices, they would have no basis for intervening.

"In any of these hypotheticals ... it all boils down to (having) some fundamental respect for the fact that the Constitution commits this choice—this decision on removal—to the governor, with the two-thirds concurrence of the Senate," Hauser said.

In last week's order, the justices ruled on a narrow issue, saying that Brewer had failed to follow the proper process in writing a letter to dismiss Mathis.

"The court concludes that the letter of Nov. 1, 2011, from the acting governor to the intervenor Colleen Mathis does not demonstrate 'substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office' by the intervenor Mathis, as required under ... the Arizona Constitution."

The letter that fired Mathis was signed by Secretary of State Ken Bennett, because Brewer was out of state on a book tour when the GOP caucus in the Arizona Senate voted to support the removal of Mathis.

Brewer called the court's decision "deeply regrettable" in a statement.

Her attorneys filed motions on Monday, Nov. 21, asking the court to reconsider its ruling, issue a stay and provide a clearer explanation.

"It is untenable that the court has blocked me from executing my constitutional authority to remove a member of the IRC, but has provided neither explanation for its action nor a timetable for when that guidance will be granted," Brewer said in a statement. "... At a minimum, the chairwoman should be barred from resuming her duties until the court has provided clarity regarding its cursory order."

Among the options under consideration: another special session to again remove Mathis, with a more-specific letter outlining her alleged offenses; or placing a proposition on the February presidential-primary ballot that would either repeal the Independent Redistricting Commission or give lawmakers more control over the drawing of political maps.

Mathis released a statement announcing that the Independent Redistricting Commission would begin reviewing the maps the week after Thanksgiving.

"I look forward to working again with my fellow commissioners," Mathis said. "I am hopeful that we can complete our mission before Christmas so that there is sufficient opportunity for the Department of Justice to approve the maps in time for state and county election officials to complete their duties before the 2012 primary and general elections."

Left unresolved, at least for now, was the larger issue of whether the court actually has a role in deciding if Brewer's charges of "gross misconduct" and "substantial neglect of duty"—the constitutional standards under which a commissioner can be removed—require any sort of substantial proof.

In the court order, the justices said they would release a more-detailed opinion "in due time."

For months, Tea Party activists have complained that Mathis had sided with the two Democratic members of the Independent Redistricting Commission to draw political maps that favor Democrats—even though the draft congressional map has four solid Republican districts, only two solid Democratic districts, and three competitive districts that either party could win. Republicans have a significant registration advantage in at least half of the legislative districts.

Republican Attorney General Tom Horne launched an investigation into whether members of the commission violated the state's open-meeting law, only to have a judge rule that Horne himself had violated ethical rules by pursuing the investigation, which is now in the hands of Maricopa County Attorney Bill Montgomery.

The Arizona Supreme Court's order triggered angry press releases from GOP legislative leaders.

Arizona House Speaker Andy Tobin blasted the court for restoring a "biased czar" to the commission.

"Moving forward, I am putting all options on the table in an effort to protect our state from being hijacked by a partisan ploy to demolish the democratic process," Tobin said.

Meanwhile, Arizona State Senate spokesman Mike Philipsen released a statement on behalf of the Senate leadership predicting that "this rogue chair will move as quickly as possible to push through her unconstitutional maps and get them to the Department of Justice. Senate leadership is calling on the governor to move swiftly and use anything within her means to stop this runaway train. We must bring back integrity to the redistricting process."

The Grand Canyon Institute, a bipartisan nonprofit that recently evaluated the proposed maps and concluded that they met all constitutional criteria, praised the court's decision.

"We applaud the Supreme Court's decision to reinstate Colleen Mathis as the chairperson of the Independent Redistricting Commission," the organization's leaders said in a statement. "When Arizonans removed politicians from drawing legislative and congressional maps, they asked that the commission remain truly independent, and that commissioners could only be removed for substantial neglect of duty or gross misconduct. Those terms have meaning, and are not simply whatever the governor says it is. This commission properly considered the constitutional criteria in drawing both legislative and congressional districts, and the governor had no reasonable grounds to remove Commissioner Mathis."

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