Supreme Showdown

The redistricting battle moves to the state's highest court

Attorney Thomas Zlaket did not mince words when he filed a legal brief in support of Colleen Mathis, the chairwoman of the Independent Redistricting Commission who was removed from her job by Gov. Jan Brewer and the state Senate on Nov. 1.

"For what it may be worth, in more than 46 years at the Bar, the undersigned has never witnessed a more blatant attempt to tamper with and directly intimidate constitutional officers in their independent work," wrote Zlaket, a former chief justice of the Arizona Supreme Court. "This case involves the ultimate political 'dirty trick.'"

Zlaket didn't stop there in expressing his outrage over the removal process, during which Republicans in the state Senate voted unanimously after barely more than an hour of deliberation to support Brewer's removal of Mathis on charges that she had committed "gross misconduct" and "substantial neglect of duty," which are the constitutional standards for removing a member of the IRC.

Zlaket blasted Brewer and the GOP lawmakers: "The facts clearly demonstrate not only a lack of proof; not only a lack of due process; not only an arbitrary and capricious abuse of power on the part of the governor; but the complete absence of any deliberative process in the state Senate, where the charade of 'confirmation' was orchestrated and concluded in the matter of a few short hours on the same day as the order of removal, without providing Commissioner Mathis any reasonable notice, much less an opportunity to be heard."

But Brewer's attorneys—Joseph Sciarrotta Jr. of the governor's office, and Lisa Hauser, a private attorney who represented the first IRC and lost a bid to represent this commission earlier this year—say the court has no jurisdiction in the matter.

They write in their brief: "Respectfully, this Court does not have the constitutional authority to intervene in this matter and nullify a removal decision that the Arizona Constitution unequivocally commits exclusively to the governor and two-thirds of the state Senate."

The legal disagreement takes center stage this Thursday, Nov. 17, when the Arizona Supreme Court is scheduled to hear oral arguments in the case.

The court is expected to rule relatively quickly, because time is running short for the IRC to complete its basic responsibility: drawing the political boundaries that will decide who represents Arizonans in the U.S. Congress and the state Legislature.

The five-member commission—which includes two Republicans, two Democrats and an independent—was created by voters in 2000 to strip the power of redistricting away from state lawmakers, who have a vested interest in how their own political boundaries are drawn.

Proposition 106, which established the IRC, also provided the governor with the power to remove a member for "gross misconduct" or "substantial neglect of duty" with the support of two-thirds of the state Senate. Republicans currently hold 21 of the 30 seats in the Arizona Senate.

Republicans have been attempting to discredit the commission—and, in particular, Mathis—since the start of the process. They complained that Mathis, a former registered Republican, was too close to the Democrats on the commission, and cited the fact that her husband, Chris Mathis, worked on the campaign of Nancy Young Wright, a Democrat who lost her re-election bid to the Arizona House of Representa-tives in 2010 to Republican Terri Proud, who has been one of the fiercest IRC critics. (Chris Mathis is a former Republican who has also worked for Republican members of Congress.)

Attorney General Tom Horne launched an investigation into whether Mathis violated the state's open-meeting law by contacting fellow commissioners regarding the hiring of a consultant to help draw the political maps.

Horne was later removed from the case on ethical grounds, because the Attorney General's Office had given the commission advice on how to follow the open-meeting law. (That case is now being investigated by Maricopa County Attorney Bill Montgomery; attorneys for the IRC argue that, as a legislative body, the commission is not subject to the open-meeting law.)

Brewer and the GOP lawmakers based the removal in part on the alleged violations of the open-meeting law, as well as an argument that the draft maps drawn by the commission were unconstitutional.

But attorneys for the IRC and Mathis make the argument that the maps couldn't be unconstitutional at this point, because they are merely draft maps—and even if they were the final maps, the call on the question of constitutionality rests with the courts, not the governor or the Legislature.

Meanwhile, the drafters of Prop 106 say that Mathis' removal was completely out of line. They turned to Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, to file an amicus brief in the case stating that Brewer's removal of Mathis "contradicts, and is antithetical to, the spirit, purpose and express language of the initiative. The initiative was designed to prevent exactly what the governor and the Senate seek to accomplish with the removal of the chair. It was intended to create a commission beyond the reach of raw political power of the sort exercised in this case. The commission is only independent when it can act without intrusion from either the executive or legislative branches of government."

Other supporters of the IRC are pushing back against the argument that the draft maps are unconstitutional. The Grand Canyon Institute issued a report examining the maps that concluded "the IRC properly considered the Constitution's six factors when it created the draft map. Accordingly, the governor and state Senate did not have reasonable cause to remove a commissioner on the grounds that the map is unconstitutional."

George Cunningham, the chairman of the Grand Canyon Institute and a former state lawmaker who supported Prop 106, says that any violations of the open-meeting law—if they did occur—"didn't even come close to the standards that were in the Constitution of gross misconduct or neglect of duty."

The IRC, he adds, "was supposed to be independent from influence from any public officer or governing body, unless it crossed a very high threshold of gross misconduct."

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