Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

993 F.Supp.2d 1042 Wesley W. HARRIS, et al., Plaintiffs, v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, et al., Defendants. No. CV–12–894–PHX–ROS–NVW–RRC. United States District Court, D. Arizona. Filed April 29, 2014.

[993 F.Supp.2d 1046] [993 F.Supp.2d 1047]

The one-person, one-vote requirement of Ahron David Cohen, Michael T. Liburdi, Snell the Equal Protection Clause of the Fourteenth & Wilmer LLP, David J. Cantelme, Cantelme & Amendment does not require that legislative Brown PLC, Phoenix, AZ, for Plaintiffs. districts have precisely equal population, but provides that divergences must be ―based on Brunn Wall Roysden, III, Joseph Andrew legitimate considerations incident to the Kanefield, Ballard Spahr LLP, Colin F. effectuation of a rational state policy.‖ Reynolds Campbell, Jeffrey Bryan Molinar, Mary Ruth v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 12 Ogrady, Osborn Maledon PA, Michele Lee L.Ed.2d 506 (1964). The majority of the Forney, Diana Day, Office of the Attorney overpopulated districts in the map drawn by the General, Phoenix, AZ, for Defendants. Commission were Republican-leaning, while the majority of the underpopulated districts leaned Democratic. Plaintiffs' complaint alleged that Before CLIFTON, Circuit Judge, and this correlation was no accident, that SILVER and WAKE, District Judges. partisanship drove it, and that partisanship is not a permissible reason to deviate from population OPINION equality in redistricting. PER CURIAM: The Commission does not argue that the Plaintiffs, individual voters registered in the population deviations came about by accident, State of Arizona, challenge the map drawn for but it disputes that the motivation was state legislative districts by the Arizona partisanship. Most of the underpopulated Independent Redistricting Commission for use districts have significant minority populations, starting in 2012, based on the 2010 census. They and the Commission presented them to the argue that the Commission underpopulated Department of Justice as districts in which Democrat-leaning districts and overpopulated minority groups would have the opportunity to Republican-leaning districts for partisan reasons, elect candidates of their choice. Section 5 of the in violation of the Fourteenth Amendment's one- Voting Rights Act required that the Commission person, one-vote principle. The Commission obtain preclearance from the Department before denies that it was driven by partisanship, its plan went into effect. To obtain preclearance, explaining that the population deviations were the Commission had to show that any proposed driven by its efforts to comply with Section 5 of changes would not diminish the ability of the Voting Rights Act. We conclude that the minority groups to elect the candidates of their population deviations were primarily a result of choice. The Commission argues that its effort to good-faith efforts to comply with the Voting comply with the Voting Rights Act drove the Rights Act, and that even though partisanship population deviations. played some role in the design of the map, the 1 Fourteenth Amendment challenge fails. For the purpose of this opinion, we assume without deciding that partisanship is not a

- 1 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) legitimate reason to deviate from population I. Course of Proceedings equality. We find that the primary factor driving the population deviation was the Commission's Plaintiffs filed this action on April 27, good-faith effort to comply with the Voting 2012, and subsequently filed a First Amended Rights Act and, in particular, to obtain Complaint. This three judge district court was preclearance from the Department of Justice on convened pursuant to 28 U.S.C. § 2284(a). the first try. The commissioners were aware of Plaintiffs sought a declaration that the final the political consequences of redistricting, legislative map violated both the Equal however, and we find that some of the Protection Clause of the Fourteenth Amendment commissioners were motivated in part in some of the U.S. Constitution and the equal of the linedrawing decisions by a desire to population requirement of the Arizona improve Democratic prospects in the affected Constitution, an injunction against enforcing the districts. Nonetheless, the Fourteenth map, and a mandate that the Commission draw a Amendment gives states some degree of leeway new map for legislative elections following the in drawing their own legislative districts and, 2012 elections. Originally, not only was the because compliance with federal voting rights Commission a defendant in this action, but so law was the predominant reason for the too were each of the five commissioners in their 2 deviations, we conclude that no federal official capacities. constitutional violation occurred. Defendants moved to dismiss the complaint We do not decide whether any violations of for failure to state a claim. In a reasoned order, state law occurred. Though plaintiffs have we denied the motion. Plaintiffs then filed a alleged violations of state law and the Arizona Second Amended Complaint. Constitution, we decided early in the proceedings and announced in a prior order that Prior to trial, the parties filed several Arizona's courts are the proper forum for such motions that the court summarily disposed of on claims. We discuss that subject further below, at February 22, 2013. First, defendants moved to 1065–66. We express no opinion on whether the stay the case pending the resolution of state-law redistricting plan violated the equal population claims in state court, which we denied. clause of the Arizona Constitution, whether the Defendants also moved for a protective order on Commission violated state law in the basis of legislative privilege, which we denied. Finally, defendants moved for judgment [993 F.Supp.2d 1048] on the pleadings, asking for dismissal of the individual commissioners as defendants and for adopting the grid map with population variations dismissal of plaintiffs' claim for relief under the rather than strict population equality, or whether equal population requirement of the Arizona state law prohibits adjusting legislative districts Constitution. We granted this motion, for partisan reasons. All that we consider is dismissing the individual commissioners from whether a federal constitutional violation the suit and dismissing plaintiffs' second claim occurred. for relief. We explain the bases for our rulings on these motions later in this opinion, at 1063– At trial, plaintiffs focused on three districts 71. that they argued were not true Voting Rights Districts and therefore could not justify Starting March 25, 2013, we presided over population deviations: Districts 8, 24, and 26. a five-day bench trial. Among other witnesses, Accordingly, this opinion largely focuses on the all five commissioners testified. population shifts associated with the creation of these three districts. II. Findings of Fact Most of the factual findings below, based in

- 2 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

large part on transcripts of public hearings and Democr Two 2 –4.0% Yes other documents in the public record, were not at Democrats disputed at trial. Rather, what was most controverted was what inferences about the Democr Two 3 –4.0% Yes Commission's motivation we should draw from at Democrats the largely undisputed facts. We discuss that issue, whether and to what extent partisanship Democr Two motivated the Commission, at the end of this 4 –4.2% Yes at Democrats section, at 1063–71. Republi Two To the extent any finding of fact should 5 2.8% more properly be designated a conclusion of can Republicans law, it should be treated as a conclusion of law. Similarly, to the extent any conclusion of law Republi Two 6 0.6% should more properly be designated a finding of can Republicans fact, it should be treated as a finding of fact. Democr Two 7 –4.7% Yes A. The Approved Legislative Redistricting Plan at Democrats The first election cycle using the legislative Democr Two map drawn by the Commission took 8 –2.2% at Republicans [993 F.Supp.2d 1049] One place in 2012. Arizona has thirty legislative Democr Democrat, 9 0.1% districts, each of which elects two at One representatives and one senator. Ariz. Const. art. Republican IV, pt. 2, § 1. The following chart summarizes pertinent electoral results and population Democr Two statistics for the Commission's 2012 legislative 10 –0.9% at Democrats map, which we explain in greater detail below. Republi Two Party 11 0.1% Percent Present Party can Republicans Affiliati age ed to Affiliation on Republi Two 12 4.1% can Republicans of Deviati of DOJ as Representat on Senator Republi Two ives 13 –0.6% can Republicans from Ability Elected Elected in Republi Two Ideal -to- in 14 2.2% can Republicans Distri Populati Elect 2012 2012 Republi Two ct on District 15 0.9% can Republicans Republi Two 1 1.6% can Republicans 16 3.3% Republi Two

- 3 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

can Republicans Figure 1. 2012 Legislative Map Statistics. Republi Two 17 3.8% can Republicans In the 2012 elections, Republicans won a total of 36 out of the 60 house seats, winning Republi Two both seats in 17 districts and 1 seat in 2 districts. 18 2.6% can Republicans Democrats won the remaining 24 house seats, winning 2 seats in 11 districts and 1 seat in 2 Democr Two districts. Republicans won 17 out of 30 senate 19 –2.8% Yes at Democrats seats, and Democrats won the remaining 13. The Democratic senate candidate narrowly won in Republi Two District 8, but the Republican candidate might 20 2.4% can Republicans have won if not for the presence of a Libertarian candidate in the Republi Two 21 1.5% [993 F.Supp.2d 1050] can Republicans race.3 In all, 16 districts elected only Republi Two Republicans to the state legislative houses, 11 22 1.3% can Republicans districts elected only Democrats, and 3 districts elected a combination of Republicans and Republi Two Democrats. 23 0.2% can Republicans Ideal population is the average per-district population, or the population each district would Democr Two 24 –3.0% Yes have if population was evenly distributed across at Democrats all districts. Of the 16 districts that elected only Republicans to the state legislature, 15 were Republi Two 25 3.6% above the ideal population and 1 was below. Of can Republicans the 11 districts that elected only Democrats to the state legislature, 2 were above the ideal Democr Two 26 0.3% Yes population and 11 were below. District 8 was at Democrats below ideal population, and the other 2 districts that elected legislators from both parties were Democr Two 27 –4.2% Yes above ideal population. at Democrats Of the 10 districts the Commission One presented to the Department of Justice as Republi Democrat, districts in which minority candidates could 28 2.6% can One elect candidates of their choice, or ―ability-to- Republican elect districts,‖ all 10 only elected Democrats to the state legislature in 2012. Nine out of ten of Democr Two these ability-to-elect districts were below the 29 –0.9% Yes at Democrats ideal population, and one was above. Of the 9 districts presented to the Democr Two 30 –2.5% Yes Department of Justice as districts in which at Democrats Hispanics could elect a candidate of their choice, all but District 24 elected at least one Hispanic

- 4 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) candidate to the state legislature in the 2012 commissioner also serves as the commission elections. In District 26, only one of the three chair. Id. § 1(8). legislators elected in 2012 was of Hispanic descent. Of the 27 state legislators elected in the [993 F.Supp.2d 1051] purported ability-to-elect districts, 16 were of Hispanic descent. Pursuant to these requirements, Republican commissioners Scott Freeman and Richard District 7 was presented to the Department Stertz were appointed by the Speaker of the of Justice as a district in which Native House and the President of the Senate, Americans could elect candidates of their respectively, and Democratic commissioners choice, and it elected Native American Jose Herrera and Linda McNulty were appointed candidates in all three of its state legislative by the House Minority Leader and Senate races. Minority Leader, respectively. Commissioners Freeman, Stertz, Herrera, and McNulty then Maximum population deviation refers to interviewed all five candidates on the the difference, in terms of percentage deviation unaffiliated slate. from the ideal population, between the most populated district and the least populated district In his interview notes, Commissioner Stertz in the map. In the approved legislative map, noted his concerns with the liberal leanings of maximum population deviation was 8.8 percent; most of the candidates on the unaffiliated list. District 12 had the largest population, at 4.1 For example, he wrote that Kimber Lanning's percent over the ideal population, and District 7 fundraising efforts were almost all for had the smallest population, at 4.7 percent under Democrats, and that her Facebook page 4 the ideal. indicated a fondness for Van Jones. Paul Bender, another candidate, served on the board B. Formation of the Commission of the ACLU. Margaret Silva identified Cesar Chavez as her hero, and her Facebook profile In 2000, Arizona voters amended the state picture featured her alongside Nancy Pelosi, the constitution by passing Proposition 106, an Democratic leader in the U.S. House of initiative removing responsibility for Representatives. Ray Bladine was his first congressional and legislative redistricting from choice for the position, whom Stertz described the state legislature and placing it in the newly as balanced despite Bladine's former tenure as established Independent Redistricting chief of staff for a Democratic mayor. Commission. SeeAriz. Const. art. IV, pt. 2, § 1(3). Five citizens serve on the Commission, In a public meeting, the four commissioners consisting of two Republicans, two Democrats, unanimously selected Colleen Mathis as the fifth and one unaffiliated with either major party. See commissioner and chairwoman. In his interview id. § 1(3)-(5). Selection of the commissioners notes Commissioner Stertz described her as begins with the Arizona Commission on balanced, though noting that she and her Appellate Court Appointments, which husband had supported Democratic candidates. interviews applicants and creates a slate of ten Mathis and her husband had also made Republican candidates, ten Democratic contributions to Republican candidates. candidates, and five independent or unaffiliated candidates. See id. § 1(4)-(5). Four C. Selection of Counsel and Mapping commissioners are appointed from the party Consultant slates, one by each of the party leaders from the two chambers of the legislature. See id. § 1(6). The Commission has authority to hire legal Once appointed, those four commissioners select counsel to ―represent the people of Arizona in the fifth commissioner from the slate of the legal defense of a redistricting plan,‖ as well unaffiliated candidates, and the fifth as staff and consultants to assist with the

- 5 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) mapping process. Ariz. Const. art. IV, pt. 2, §§ the Democratic commissioners' preference for 1(19), (20). The selection of the Commission's Democratic counsel if they would do the same counsel and mapping consultant sparked public for the Republican commissioners. controversy, and plaintiffs argue that the process Commissioner Stertz then made a motion to reflected a partisan bias on the part of amend, to instead retain the Mandell Law Firm Chairwoman Mathis. and Gammage & Burnham. The amendment was defeated on a 2–3 vote, with Commissioners The previous Commission, after the 2000 Stertz and Freeman voting for it and census, had retained a Democratic attorney and a Commissioners Mathis, Herrera, and McNulty Republican attorney. Chairwoman Mathis voting against. The motion to retain Osborn expressed interest in hiring one attorney instead Maledon and Ballard Spahr carried with a 3–2 of two, as the counsel hired would represent the vote, with Commissioners Mathis, Herrera, and entire Commission. The other four McNulty voting for the motion and commissioners preferred to hire two attorneys Commissioners Stertz and Freeman voting with different party affiliations, however. That is against. The Commission thus selected a what the Commission decided to do. Republican attorney for whom neither of the Republican commissioners voted. The Commission used the State Procurement Office to help retain counsel and In selecting a mapping consultant, the interviewed attorneys from six law firms. Commission initially worked with the State Among the interviewees were the two attorneys Procurement Office. An applicant for the who had worked for the previous Commission: position had to submit, among other things, an Lisa Hauser, an attorney with the firm of explanation of its capabilities to perform the Gammage & Burnham and a Republican, and work, any previous redistricting experience, any Michael Mandell, an attorney with the Mandell partisan connections, and a cost sheet. In the Law Firm and a Democrat. Other attorneys initial round of scoring, each applicant was interviewed by the Commission included Mary scored on a 1000–point scale. Each O'Grady, a Democrat with Osborn Maledon, and commissioner independently filled out a scoring Joe Kanefield, a Republican with Ballard Spahr. sheet, which considered capability to do the Osborn Maledon and Ballard Spahr received the work but not cost, rating each applicant on a highest scores from the Commission based on 700–point scale. The State Procurement Office forms provided by the State Procurement Office rated each applicant on a 300–point scale, 200 for use in the selection process. Nonetheless, points of which evaluated the relative cost of the Commissioner Herrera expressed a preference bid. for retaining Mandell as Democratic counsel, and Commissioners Stertz and Freeman The Commission considered the first round preferred Hauser and Gammage & Burnham as of scoring, and then announced a short list of Republican counsel. four firms that it would interview for the mapping consultant position. Those firms were [993 F.Supp.2d 1052] Strategic Telemetry, National Demographics, Research Advisory Services, and Terra Systems In a public meeting, Commissioner Herrera Southwest. National Demographics, which had moved to retain Osborn Maledon and Ballard served as mapping consultant for the previous Spahr at Chairwoman Mathis's suggestion. Commission, had received the highest score in Commissioner Herrera later explained that while the first round of evaluations. Mandell was his first choice, Osborn Maledon and Ballard Spahr received the highest The Commission interviewed the four evaluation scores. Commissioner Freeman selected firms in a public meeting. During the expressed his preference for Gammage & interview of the head of National Demographics, Burnham, and said he would give deference to

- 6 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Commissioner Herrera expressed concern that worked for Democratic, independent, and there was a perception that the firm was nonpartisan campaigns, but no Republican affiliated with Republican interests. National campaigns. While Strasma had redistricting Demographics had worked for both Democratic experience in more than thirty states before he and Republican clients, though more founded the firm in 2003, the firm itself had no Republicans than Democrats. In interviewing statewide redistricting experience at the time of Strategic Telemetry, Commissioners Freeman its bid, nor any redistricting experience in and Stertz asked whether, because Strategic Arizona. Also making Strategic Telemetry a Telemetry had worked for a number of controversial choice was that it had submitted Democratic clients but no Republican clients, the most expensive bid to the Commission. All the firm would be perceived as biased. of this was known to the Commission when Strategic Telemetry was selected as the mapping After these interviews, the commissioners consultant for the Commission and when conducted a second round of scoring before Commissioners Mathis, Herrera, and McNulty selecting a firm. In this round of scoring, each gave Strategic Telemetry a perfect score of Commissioners Mathis, Herrera, and McNulty 700 points during the second round of scoring. all gave Strategic Telemetry a perfect score. Strategic Telemetry came out of this round with D. The Grid Map the highest overall score. Prior to the public meeting in which the Commission voted to The Commission was required to begin the retain a mapping consultant, Chairwoman mapping process by creating ―districts of equal Mathis made a phone call to Commissioner population in a grid-like pattern across the Stertz and asked him to support the choice of state.‖ Ariz. Const. art. IV, pt. 2, § 1(14). The Strategic Telemetry. Commission directed its mapping consultant to prepare two alternative grid maps. Believing that The Commission selected Strategic the Arizona Constitution intended the Telemetry as the mapping consultant on a 3–2 Commission to begin with a clean slate, several vote, with Commissioners McNulty, Herrera, commissioners expressed interest in having an and Mathis voting in favor, and Commissioners element of randomness in the generation of the Freeman and Stertz voting against. Before the grid map. The Commission decided, after a vote, Commissioners series of coin flips, that the consultant would generate two alternative grid maps, one [993 F.Supp.2d 1053] beginning in the center of the state and moving out counterclockwise, and the other with Freeman and Stertz had expressed a preference districts starting in the southeast corner of the for National Demographics. state, moving inwards clockwise.

At subsequent meetings, the Commission After the two maps were presented, the heard extensive criticism from members of the Commission voted to adopt the second public about the selection of Strategic alternative. The grid map selected had a Telemetry. Much of the criticism related to the maximum population deviation—the difference Democratic affiliations of the firm and to the between the most populated and least populated fact that it was based out of Washington, D.C., district—of 4.07 percent of the average district rather than Arizona. Strategic Telemetry was population. founded primarily as a microtargeting firm, which uses statistical analyses of voter opinions E. Voting Rights Act Preclearance to assist political campaigns. Ken Strasma, Requirement president and founder of Strategic Telemetry, considered himself a Democrat, as did most of During the redistricting cycle at issue, the other employees of the firm. The firm had Arizona was subject to the requirements of

- 7 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Section 5 of the Voting Rights Act.5 Before a voters (crossover districts). Texas, 887 state covered by Section 5 can implement a F.Supp.2d at 147–49. A minority group's redistricting plan, the state must prove that its preferred candidate need not be a member of the proposed plan ―neither has the purpose nor will racial minority. Cf. Ruiz v. City of Santa Maria, have the effect of denying or abridging the right 160 F.3d 543, 552 (9th Cir.1998) (discussing to vote on account of race or color.‖ 42 U.S.C. § minority candidates of choice for the purposes of 1973c(a).6 The state must either Section 2 of the Voting Rights Act). ―Ability to elect‖ properly refers to the ability to elect the [993 F.Supp.2d 1054] preferred candidate of Hispanic voters from the given district, which is not necessarily the same institute an action with the U.S. District Court thing as the ability to elect a Hispanic candidate for the District of Columbia for a declaratory from that district, though there is obvious judgment that the plan has no such purpose or overlap between those two concepts. effect, or, as the Commission did here, submit the plan to the U.S. Department of Justice. If the In determining the ability to elect in Justice Department does not object within sixty districts in the proposed and benchmark plan, days, the plan has been precleared and the state the Department of Justice begins its review of a may implement it. See id. plan submitted for preclearance by analyzing the districts with current census data. 76 Fed.Reg. A plan has an impermissible effect under 7470, 7472 (Feb. 9, 2011). The analysis is a Section 5 if it ―would lead to a retrogression in complex one relying on more than just census the position of racial minorities with respect to numbers, however, and does not turn on their effective exercise of the electoral reaching a fixed percentage of minority franchise.‖ Reno v. Bossier Parish Sch. Bd., 520 population. Rather, the Department looks at U.S. 471, 478, 117 S.Ct. 1491, 137 L.Ed.2d 730 additional demographic data such as group (1997). A redistricting plan leads to voting patterns, electoral participation, election retrogression when, compared to the plan history, and voter turnout. Id. at 7471; see also currently in effect, the new plan diminishes the Texas, 887 F.Supp.2d at 150 (―There is no ability of minority groups to ―elect their single, clearly defined metric to determine when preferred candidates of choice.‖ See id.; 42 a minority group has an ability to elect, so we U.S.C. § 1973c(b). There is no retrogression so use a multi-factored approach to determine when long as the number of ability-to-elect districts a coalition or crossover district achieves that does not decrease from the benchmark to the ability.‖). proposed plan. Texas v. United States, 887 F.Supp.2d 133, 157 (D.D.C.2012) (citing Several aspects of the preclearance process Abrams v. Johnson, 521 U.S. 74, 97–98, 117 encourage states to do more than the bare S.Ct. 1925, 138 L.Ed.2d 285 (1997)), vacated minimum to avoid retrogression. First, state and remanded, ––– U.S. ––––, 133 S.Ct. 2885, officials do not know exactly what is required to 186 L.Ed.2d 930 (2013) (remanding for further achieve preclearance. As explained above, the consideration in light of Shelby County v. Department of Justice relies on a variety of data Holder, ––– U.S. ––––, 133 S.Ct. 2612, 186 in assessing retrogression, rather than assessing L.Ed.2d 651 (2013)). a fixed goal that states can easily ascertain. Bruce Cain, an expert in Voting A district gives a minority group the opportunity to elect the candidate of its choice [993 F.Supp.2d 1055] not only when the minority group makes up a majority of the district's population (a majority- Rights Act compliance in redistricting who minority district), but also when it can elect its served as a consultant to the Commission preferred candidate with the help of another following the 2000 census and was retained for minority group (a coalition district) or white this lawsuit by the current Commission, testified

- 8 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) at trial that the lack of clear rules creates had never obtained preclearance from the ―regulatory uncertainty‖ that forces states ―to be Department of Justice for its legislative cautious and to take extra steps.‖ redistricting plan based upon its first submission. The Commission was aware that, Moreover, the preclearance process with among other consequences, failure to preclear respect to any particular plan is generally an would make Arizona ineligible to bail out as a opaque one. When the Department of Justice Section 5 jurisdiction for another ten years. objects to a plan, the state receives an See42 U.S.C. § 1973b(a)(1). Although the explanation of the basis for the objection. When Commission considered and often adjusted lines the Department does not object, by contrast, the to meet other goals, it put a priority on state receives no such information. In other compliance with the Voting Rights Act and, in words, the state does not know how many particular, on obtaining preclearance on the first benchmark districts the Department believed attempt. there were nor how many ability-to-elect districts the Department concluded were in the F. The Draft Map proposed plan. Nor does it know whether the new plan barely precleared or could have done After adopting a grid map, the Commission with fewer ability-to-elect districts. was directed by the Arizona Constitution to adjust the map to comply with the United States Consultants and attorneys hired by a state Constitution and the federal Voting Rights Act. to assist with the preclearance process may also Ariz. Const. art. IV, pt. 2, § 1(14). It was also tend to encourage taking additional steps to instructed to adjust the map, ―to the extent achieve preclearance. The professional practicable,‖ to comply with five other reputation of a consultant gives him a strong enumerated criteria: (1) equality of population incentive to ensure that the jurisdictions he between districts; (2) geographic compactness advises obtain preclearance. The Commission, and contiguity; (3) respect for communities of for example, asked applicants to serve as its interest; (4) respect for visible geographic mapping consultant whether they had previously features, city, town and county boundaries, and worked with states in redistricting and whether undivided census tracts; and (5) those jurisdictions had succeeded in gaining competitiveness, if it would ―create no preclearance on the first try. significant detriment to the other goals.‖ Id. The map approved by the Commission after the first These factors may work together to tilt the round of these adjustments was only a draft map, board somewhat because they encourage a state which was required to undergo public comment that wants to obtain preclearance to overshoot and a further round of revisions before final the mark, particularly if it wants its first approval. Id. § 1(16). submission to be approved. Because it is not clear where the Justice Department will draw the [993 F.Supp.2d 1056] line, there is a natural incentive to provide a margin of error or to aim higher than might Before beginning to adjust the grid map, actually be necessary. Attorneys and consultants, the Commission received presentations on the aware that their professional reputations may be Voting Rights Act from its attorneys, its affected, can be motivated to push in that mapping consultant, and its Voting Rights Act direction. consultant Bruce Adelson. Adelson previously worked for the Department of Justice, where he The Arizona Commission early in the led the team that had reviewed and objected to process identified obtaining preclearance on its the first legislative map submitted by Arizona first attempt as a priority. All of the for preclearance in 2002. Adelson gave the commissioners, Democrats and Republicans Commission an overview of the preclearance alike, shared this goal. In prior decades, Arizona process. He explained that determining whether

- 9 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) a minority population had the ability to elect was as a ―down and dirty‖ measure, was not intended a complex analysis that turned on more than just to be the Commission's only analysis of the percentage of minorities in a district. He cohesion in minority voting in proposed explained, for example, that in reviewing districts, but rather a rough proxy until the Arizona's submission from the prior decade, the Commission had formal racial polarization Department had found a district where it analysis. In the end, however, the voting pattern concluded that minorities had an ability to elect estimates derived from the Cruz Index wound up even though they made up only between 30 and corresponding closely to the voting pattern 40 percent of the population. Adelson informed estimates King derived from his formal the Commission at that time that he believed the statistical analysis. 2002 map that was ultimately approved had nine districts in which minorities had an ability to To explore possible adjustments to the grid elect their preferred candidates. Because the map, the commissioners could either direct the preclearance process focused on making sure mapping consultant to create a map with a there was no retrogression, that number was the certain change or use mapping software to make benchmark, meaning that the new plan had to changes themselves. They referred to these maps achieve at least the same number of ability-to- as ―what if‖ maps because the maps simply elect districts. showed possible line changes that the Commission might choose to incorporate into One of the most important factors the the draft map. Willie Desmond was the Strategic Department of Justice considers in determining Telemetry employee with primary responsibility the ability to elect in a district is its level of for assisting commissioners with the mapping racial polarization, which is a measure of the software or creating ―what if‖ maps at their voting tendencies of whites and minorities in direction. elections pitting a white candidate against a minority candidate. A racial polarization study is The Commission originally operated on the a statistical analysis of past election results to assumption that it had to create nine ability-to- determine the level of racial polarization in a elect districts, based on Adelson's district. When it first started considering potential benchmark districts, the Commission [993 F.Supp.2d 1057] did not have any formal racial polarization report that there were nine benchmark districts. analysis at its disposal and relied primarily on As a result, the earliest ―what if‖ maps focused demographic data from the 2010 census. The on creating nine minority ability-to-elect Commission eventually retained Professor Gary districts. Commissioner Freeman, for example, King, a social scientist at Harvard University directed Desmond to create several maps that recommended by the Commission's counsel, to would create nine ability-to-elect districts. conduct a racial polarization analysis. Soon, however, the Commission began Until the Commission had a formal racial considering the possibility that there might be polarization analysis, it often used what it called ten benchmark districts. Counsel advised that the ―Cruz Index‖ to assess whether voters in an there were some districts without a majority- area might support a Hispanic candidate. minority population that had a history of electing Devised by Commissioners McNulty and Stertz, minority candidates, such as District 23 from the the Cruz Index used data from the 2010 election 2002 legislative map. Counsel further explained for Mine Inspector, a statewide race pitting Joe that, even though there were seven majority- Hart, a Republican, non-Hispanic white (or minority benchmark districts and two to three Anglo) candidate, against Manuel Cruz, a other districts where minorities did not make up Democrat, Hispanic candidate. The Cruz Index, the majority, they nonetheless might be viewed sometimes described by commissioners and staff as having the ability to elect. Because it was

- 10 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) uncertain how many benchmark and ability-to- conditioned upon the concurrence of two-thirds elect districts the Department of Justice would of the Arizona Senate. The Arizona Constitution determine existed, counsel advised that creating permits the governor to remove a member of the ten districts would increase the odds of getting Commission, with concurrence of two-thirds of precleared on the first attempt. the Senate, for ―substantial neglect of duty‖ or ―gross misconduct in office.‖ Ariz. Const. art. The Commission worked to make Districts IV, pt. 2, § 1(10). After the Senate concurred in 24 and 26 ones in which, despite lacking a the removal of Chairwoman Mathis in a special majority of the population, Hispanics could elect session, the Commission petitioned the Arizona candidates of their choice. At this point, the Supreme Court for the reinstatement of Commission was still relying on the Cruz Index Chairwoman Mathis on the basis that the to predict minority voting patterns in proposed Governor had exceeded her authority under the districts. As the Commission explored shifting Arizona Constitution. Ariz. Indep. Redistricting boundaries to create ability-to-elect districts, Comm'n v. Brewer, 229 Ariz. 347, 275 P.3d their mapping consultant apprised the 1267, 1270 (2012). On November 17, that court Commission of the effects of the shifts on ordered the reinstatement of Chairwoman various statistics, such as minority voting Mathis, concluding population, the Cruz Index, and the deviation from average district population. Counsel [993 F.Supp.2d 1058] advised the Commission that some population disparity was permissible if it was a result of that the Governor did not have legal cause to compliance with the Voting Rights Act. remove her. Id. at 1268, 1276–78.

On October 10, 2011, the Commission H. The Final Map approved a draft legislative map on a 4–1 vote, with all but Commissioner Stertz voting in favor On November 29, the Commission began of the map. That map had ten districts identified working to modify the draft map to create the by the Commission as minority ability-to-elect final map it would submit to the Department of districts. Justice. Because of the delay caused by the effort to remove Chairwoman Mathis, the G. The Effort to Remove Chairwoman Mathis Commission felt under pressure to finalize its work in time to permit election officials and The Arizona Constitution prescribes at least prospective candidates to prepare for the 2012 a thirty-day comment period after the adoption elections, knowing that the preclearance process of the draft map. Ariz. Const. art. IV, pt. 2, § would also take time. 1(16). The Commission did not begin working on the final map until late November, however, The Commission received a draft racial because of a delay resulting from an effort to polarization voting analysis prepared by King remove Chairwoman Mathis from the and Strasma. According to the draft analysis, Commission. minorities would be able to elect candidates of their choice in all ten proposed ability-to-elect On October 26, Governor Janice Brewer districts in the draft map. sent a letter to the Commission alleging it had committed ―substantial neglect of duty and gross The Commission received advice from its misconduct in office‖ for, among other things, attorneys and consultants as to the importance of the manner in which it selected the mapping presenting the Department of Justice with at consultant. On November 1, the Governor's least ten ability-to-elect districts. Adelson said office informed Chairwoman Mathis that it that, based on the information he had received would remove her from the Commission for since his earlier assessment, he believed the committing gross misconduct in office, Department would conclude that there were ten

- 11 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) benchmark districts. He also emphasized that, changes to Districts 24 and 26, including many due to the uncertainty in determining what purportedly aimed at strengthening the minority constitutes a benchmark district, the Department population's ability to elect. Between the draft might determine there were more benchmark map and final map, the Hispanic population in districts than what the Commission had District 24 increased from 38.6 percent to 41.3 concluded. Counsel advised the Commission percent, and the Hispanic voting-age population that it would be ―prudent to stay the course in increased from 31.8 percent to 34.1 percent. In terms of the ten districts that are in the draft map District 26, the Hispanic population increased and look to ... strengthen them if there is a way from 36.8 percent to 38.5 percent, and the to strengthen them.‖ Hispanic voting-age population increased from 30.4 percent to 32 percent. The Commission also received advice that it could use population shifts, within certain [993 F.Supp.2d 1059] limits, to strengthen these districts. Adelson advised the Commission that underpopulating A consequence of these changes was an minority districts was an acceptable tool for increase in population inequality. District 24's complying with the Voting Rights Act, so long population decreased from 0.2 percent above the as the maximum deviation remained within ten ideal population to 3 percent below. District 26's percent. According to Adelson, underpopulating population increased from 0.1 percent above the districts to increase the proportion of minorities ideal population to 0.3 percent above. was an ―accepted redistricting tool‖ and something that the Department of Justice looked Commissioner McNulty asked Desmond to at favorably when assessing compliance with explore possibilities for making either District 8 Section 5. According to Strasma, or 11 more competitive. Desmond presented an underpopulation could strengthen the districts in option to the Commission that would have made several ways. First, it could increase the District 8 more competitive. The Republican percentage of minority voters in a district. commissioners expressed opposition to the Second, it could account for expected growth in proposed change. Commissioner Stertz argued the Hispanic districts, which might otherwise that the change favored Democrats in District 8 become overpopulated in the decade following while ―hyperpacking‖ Republicans into District the implementation of a new map. 11. Commissioner Freeman argued that competitiveness should be applied ―fairly and The Commission directed Strasma and evenhandedly‖ across the state rather than just Adelson to look for ways to strengthen the advantaging one party in a particular district. ability-to-elect districts and report back. At a The Republican commissioners were correct that subsequent meeting, Strasma, Adelson, and the change would necessarily favor Democratic Desmond presented a number of options for electoral prospects given that the voter improving the districts along with the trade-offs registration in the existing versions of both associated with those changes. Strasma Districts 8 and 11 favored Republicans and that identified Districts 24 and 26 in particular as Commissioner McNulty did not propose any districts that might warrant further efforts to corresponding effort to make any Democratic- strengthen the minority ability to elect. Doing so leaning districts more competitive. would increase the likelihood that the Commissioner McNulty was absent from the Department of Justice would recognize those meetings in which these initial discussions districts as ability-to-elect districts and thus the occurred, but Commissioner Herrera noted that likelihood that the plan would obtain competitiveness was one of the criteria the preclearance. Commission was required to consider and expressed support for the change. The Commission adopted a number of Commissioner McNulty asked Desmond to

- 12 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) try a few other ways of shifting the lines District 11, from 1.7 percent to 4.3 percent in between Districts 8 and 11, one of which would District 12, and from 1.9 percent to 4.8 percent have kept several communities with high in District 16. Because minority populations together in District 8. Commissioner McNulty, noting that the area had [993 F.Supp.2d 1060] a history of having an opportunity to elect, raised the possibility that the change might also of subsequent changes, the population deviations preserve that opportunity. Adelson opined that, in these districts in the final map was –2.2 if the minority population of District 8 were percent for District 8, 0.1 percent for District 11, increased slightly, the Commission might be 4.1 percent for District 12, and 3.3 percent for able to present it to the Department of Justice as District 16. Therefore, the change in population an eleventh opportunity-to-elect district, which deviation for each district that is both would ―unquestionably enhance the submission attributable to Commissioner McNulty's change and enhance chances for preclearance.‖ Counsel order and that actually remained in the final map suggested that having another possible ability- was an increase in deviation of 0.7 percent for to-elect district could be helpful because District District 8, a decrease in deviation of 1.6 percent 26 was not as strong of an ability-to-elect district for District 11, an increase of 2.4 percent for as the other districts. District 12, and an increase in deviation of 1.4 percent for District 16. District 8 contained many of the same concentrations of minority populations as the These changes increased the percentage of district identified as District 23 in the previous Hispanic population in District 8 from 25.9 decade's plan. The comparable district in that percent in the draft map to 34.8 percent in the region of the state had a history of electing final map, with Hispanic voting-age population minority candidates prior to the 2002 from 22.8 percent to 31.3 percent. The redistricting cycle. In 2002, the Department of Commission ultimately concluded, however, Justice identified that district as one of the that while District 8 came closer to constituting reasons why the Commission did not obtain a minority ability-to-elect district than the preclearance of its first proposed plan in that previous District 23, it did not ensure minority cycle. Although the Commission later argued to voters the ability to elect candidates of their the Department of Justice in its 2012 submission choice. The changes were nonetheless retained that the minorities could not consistently elect in the final map. their candidate of choice in that district between The Commission approved the final 2002 and 2012, several minority candidates had legislative map on January 17, 2012, on a 3–2 been elected to the state legislature from the vote, with the Republican commissioners voting district in that time period. against.

The Commission voted 3–2 to implement On February 28, 2012, the Commission Commissioner McNulty's proposed change into submitted its plan to the Department of Justice the working map and send it to Dr. King for for preclearance purposes. In its written further analysis, with the Republican submission, the Commission argued that the commissioners voting against. This was the only benchmark plan contained seven ability-to-elect change order that resulted in a divided vote. districts, comprised of one Native American This change order also affected the district and six Hispanic districts. The population count of Districts 11, 12, and 16. The Commission argued that the new map was an order changed the deviation from ideal improvement over the benchmark plan, as the population from 1.5 percent to –2.3 percent in new map contained ten districts (one Native District 8, from 1.9 percent to 0.3 percent in American district and nine Hispanic districts) in which a minority group had the opportunity to

- 13 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) elect the candidate of its choice. The direction. As a practical matter, changes that Commission also noted that while District 8 was strengthened minority ability-to-elect districts not an ability-to-elect district, its performance by were also changes that improved the prospects that measure was improved over its predecessor, for electing Democratic candidates. Those Benchmark District 23. motivations were not at cross purposes. They were entirely parallel. On April 26, the Department of Justice approved the Commission's map. The Cruz Index, used by the commissioners in considering changes to the map aimed at I. The Motivation for the Deviations strengthening minority districts, illustrates the overlap of these two motivations. It applied As noted previously and explained in more results from an election contest between a detail below, at 1071–74, we conclude as a Hispanic Democrat and a white, non-Hispanic matter of law that the burden of proof is on (Anglo) Republican. The commissioners used plaintiffs. To prevail, plaintiffs must prove that votes for candidate Cruz to reflect a willingness the population deviations were not motivated by to vote for a Hispanic candidate—which was legitimate considerations or, possibly, if itself a proxy for the ability of the Hispanic motivated in part by legitimate considerations, population to elect its preferred candidate, that illegitimate considerations predominated 7 regardless of that candidate's ethnicity—but the over legitimate considerations. We assume that voters could have been motivated, as much or seeking partisan advantage is not a legitimate even more, to vote for a Democrat. Similarly, consideration, and we conclude, as discussed at voters who voted for Cruz's opponent may have 1073–77, that compliance with the Voting been willing to vote for a Hispanic candidate but Rights Act is a legitimate consideration. were actually motivated to vote for a We find that plaintiffs have not satisfied Republican. In using the Cruz Index to adjust their burden of proof. In particular, we find that district boundaries in order to strengthen the the deviations in the ten districts submitted to minority population's ability to elect its preferred the Department of Justice as minority ability-to- candidate, the commissioners used a measure elect districts were predominantly a result of the that equally reflected the ability to elect a Commission's good-faith efforts to achieve Democratic candidate. preclearance under the Voting Rights Act. The practical correlation between these two Partisanship may have played some role, but the motivations was confirmed by the results of the primary motivation was legitimate. 2012 election, conducted under the map that is [993 F.Supp.2d 1061] the subject of this lawsuit. The legislators elected from districts identified by the With respect to the deviations resulting Commission as minority ability-to-elect districts from Commissioner McNulty's change to were all Democrats. As noted above, 19 of the District 8 between the draft map and the final 30 legislators elected from those districts were map, we find that partisanship clearly played Hispanic or Native American. some role. We also find, however, that legitimate motivations to achieve preclearance It is highly likely that the members of the also played a role in the Commission's decision Commission were aware of this correlation. to enact the change to District 8. Individuals sufficiently interested in government and politics to volunteer to serve on the We acknowledge that it is difficult to Commission and to contribute hundreds of hours separate out different motivations in this context. of time to the assignment would be aware of That is particularly true in this instance because historic voting patterns. If they weren't aware the cited motivations pulled in exactly the same before, then they would necessarily have

- 14 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) become aware of the strong correlation between In short, the bipartisan support for the minority ability-to-elect districts and changes leading to the population deviations in Democratic-leaning districts in the course of the draft map undermines the notion that their work. partisanship, rather than compliance with the Voting Rights Act, was what motivated those That knowledge could open the door to deviations. partisan motivations in both directions. If an individual member of the Commission were We also find that the additional population motivated to favor Democrats, that could have deviation in these ten districts resulting from been accomplished under the guise of trying to changes occurring between the passage of the strengthen minority ability-to-elect districts. draft map and the final map were primarily the Similarly, a member motivated to favor result of efforts to obtain preclearance, some Republicans could have taken advantage of the reservations by the Republican commissioners process to concentrate minority population into notwithstanding. After the draft map was certain districts in such a way as to leave a larger completed, both Republican commissioners proportion of Republicans in the remaining expressed concern about further depopulating districts. minority ability-to-elect districts. At the hearing in which the Commission began work on the Recognizing the difficulty of separating final map, Commissioner Stertz said that it was these two motivations, we find that the his ―understanding that the maps as they are Commission was predominantly motivated by a currently drawn do meet [the Voting Rights Act] legitimate consideration, in compliance with the criteria,‖ and that he didn't want to ―overpack Voting Rights Act. Republicans into Republican districts ... all being done on the shoulders of strengthening All five of the commissioners, including the [Voting Rights Districts].‖ Commissioner Republicans, put a priority on achieving Freeman shared Commissioner Stertz's preclearance from the Department of Justice on concerns. the first try. To maximize the chances of achieving that goal, the Commission's But the Commission's counsel and consultants responded that there was uncertainty [993 F.Supp.2d 1062] as to whether the map would preclear without counsel and consultants recommended creating strengthening those districts. And despite their ten minority ability-to-elect districts. There was initial reservations, the Republican not a partisan divide on the question of whether commissioners did not vote against any of the ten districts was an appropriate target. change orders further strengthening the minority ability to elect in those districts. Commissioner After working to create ten such districts in Stertz even expressed support for these changes. the draft map, including Districts 24 and 26, all In a public hearing that took place after the but Commissioner Stertz voted for the draft Commission made additional changes to the map. Commissioner Stertz's reason for voting Voting Rights Act districts, Commissioner against the draft map, however, was not that he Stertz said that apart from a change order objected to the population deviations resulting affecting Districts 8 and 11—which were not from the creation of the ability-to-elect districts. ability-to-elect districts and which we discuss Rather, he felt that the Commission had not paid next—he was ―liking where the map has gone‖ sufficient attention to the other criteria that the and thought there was ―a higher level of positive Arizona Constitution requires the Commission adjustments that have been made than the to consider, such as keeping communities of preponderance of the negative design of interest together. Districts 8 and 11.‖ At trial, Commissioner Stertz testified that he relied on counsel's advice

- 15 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) that ten benchmark districts were necessary, and proposed to create a series of competitive that he thought those ten districts were ―better districts out of both Democrat- and Republican- today than when they were first developed in leaning districts, or applied some defined draft maps.‖ The bipartisan support for the goal standards evenhandedly across the state. Instead, of preclearance, and the bipartisan support for she sought to make one Republican-leaning the change orders strengthening these ten district more amenable to Democratic interests. districts to meet that goal, support the finding Moreover, the Commission was well aware of that preclearance motivated the deviations. the partisan implications of the proposed change before adopting it. Both Republican We make this finding despite plaintiffs' commissioners made their opposition to the contention that the selection of counsel and change, on the basis that it packed Republican mapping consultant prove that Chairwoman voters into District 11 to aid Democratic Mathis was biased towards Democratic interests. prospects in District 8, known early on. We agree that giving Strategic Telemetry a perfect score is difficult to justify and reflects Nonetheless, while partisanship played a Mathis taking an ends-oriented approach to the role in the increased population deviation process to select her preferred firm, Strategic associated with changing District 8, so too did Telemetry. the preclearance goal play a part in motivating the change. While Commissioner McNulty But even if Chairwoman Mathis preferred originally suggested altering Districts 8 and 11 Strategic Telemetry for partisan reasons rather for the sake of competitiveness, she than the neutral reasons she expressed at the subsequently suggested that District 8 could time, it would not become an ability-to-elect district. Consultants and counsel endorsed this idea, in part because [993 F.Supp.2d 1063] they had some doubts that District 26 would prove that partisanship was the reason she offer the ability to elect. It was not until after the supported the creation of ability-to-elect consultants and counsel suggested pursuing districts. As we have discussed, strong evidence these changes for the sake of preclearance that shows that preclearing on the first attempt was a Chairwoman Mathis endorsed the idea. While goal shared by all commissioners, not just the Commission ultimately concluded that it Chairwoman Mathis. could not make a true ability-to-elect district out of District 8, the submission to the Department With respect to the changes to District 8 of Justice did cite the changes made to that occurring between the draft map and final map, district's boundaries in arguing that the plan the evidence shows that partisanship played deserved preclearance. Compliance with the some role. Though Commissioner McNulty first Voting Rights Act was a substantial part of the presented the possible changes to Districts 8 and motivation for the treatment of District 8. 11 as an opportunity to make District 8 into a more competitive district, that simply meant III. Resolution of Pretrial Motions making District 8 into a more Democratic The parties filed several motions prior to district. Because Districts 8 and 11 both favored trial thatthis court disposed of summarily in its Republicans before the proposed change, any order dated February 22, 2013, with an opinion shift in population between the two districts to explaining the bases of the rulings to follow. make one of them more ―competitive‖ Before we turn to our conclusions of law on the necessarily increased the chances that a merits of the case, we explain our rulings on Democrat would win in one of those districts. In those motions. fact, in a close senate race in the newly drawn District 8, the Democrat did win. We might view A. First Motion for Judgment on the Pleadings the issue differently had Commissioner McNulty

- 16 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Defendants' first motion for judgment on the United States, Inc., 446 U.S. 719, 734, 100 the pleadings sought two forms of relief. First, S.Ct. 1967, 64 L.Ed.2d 641 (1980). Litigants defendants requested dismissal of the often disagree over whether legislative immunity commissioners based on legislative immunity. applies to a particular individual or to particular Second, defendants requested dismissal of acts performed by an individual occupying a plaintiffs' state-law claim as barred by the legislative office. Kaahumanu, 315 F.3d at 1219 Eleventh Amendment. We now explain why (legislative immunity applies only to ―legislative both forms of relief were granted. rather than administrative or executive‖ actions). But plaintiffs effectively conceded the 1. Standard of Judgment on the Pleadings commissioners qualified as legislators performing legislative acts. So instead of the Judgment on the pleadings is appropriate normal lines of attack, plaintiffs argued that Ex when there is ―no issue of material parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 [993 F.Supp.2d 1064] L.Ed. 714 (1908), prevented legislative immunity from requiring dismissal of the fact in dispute, and the moving party is entitled commissioners. Plaintiffs also claimed their to judgment as a matter of law.‖ Fleming v. request for attorneys' fees permitted them to Pickard, 581 F.3d 922, 925 (9th Cir.2009). In maintain suit against the commissioners. Neither assessing defendants' motion, we ―accept[ed] all argument was convincing. factual allegations in the complaint as true and construe[d] them in the light most favorable to Ex parte Young creates a legal fiction to the non-moving party.‖ Id. avoid suits against state officials from being barred by the Eleventh Amendment. See, e.g., 2. The Commissioners Were Immune from Miranda B. v. Kitzhaber, 328 F.3d 1181, 1189 Suit (9th Cir.2003) (per curiam) (―[T]he doctrine of Ex parte Young avoids an Eleventh Amendment It was not entirely clear from the complaint bar to suit....‖). That fiction permits only but plaintiffs' claims against the commissioners ―actions for prospective declaratory or injunctive appeared to be based solely on the relief against state officers in their official commissioners' official acts. That is, plaintiffs' capacities for their alleged violations of federal claims rested on the commissioners' actions in law.‖ Coal. to Defend Affirmative Action v. connection with the adoption of a particular final Brown, 674 F.3d 1128, 1134 (9th Cir.2012). legislative map. Plaintiffs' federal claim sought Plaintiffs did not cite any case where a court relief pursuant to 42 U.S.C. § 1983 based on employed the fiction of Ex parte Young to avoid their belief that the adoption of that map the otherwise applicable bar of legislative constituted a violation of the Equal Protection immunity. And existing case law reaches the Clause of the Fourteenth Amendment. The opposite conclusion. See, e.g., Scott v. Taylor, Commission argued legislative immunity 405 F.3d 1251, 1257 (11th Cir.2005) (finding forbade plaintiffs from pursuing this claim legislative immunity barred claim for against the commissioners. prospective injunctive relief). Thus, Ex parte Young was not sufficient to overcome the bar of ―The Supreme Court has long held that legislative immunity. state and regional legislators are absolutely immune from liability under § 1983 for their Even if the court had agreed Ex parte legislative acts.‖ Kaahumanu v. Cnty. of Maui, Young might permit the naming of the 315 F.3d 1215, 1219 (9th Cir.2003). This commissioners in certain circumstances, it was immunity applies to suits for money damages as particularly inapt here. Pursuant to Ex parte well as requests for injunctive relief. See Young, the ―state official sued ‗must have some Supreme Court of Va. v. Consumers Union of connection with the enforcement of the act.‘ ‖

- 17 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Coal. to Defend Affirmative Action, 674 F.3d at oral argument, however, plaintiffs' counsel 1134 (quoting Ex parte Young, 209 U.S. at 157, conceded the complaint did not seek an award of 28 S.Ct. 441). That connection must be ―fairly fees from the Secretary of State.8 The fact that direct‖ and a ―generalized duty to enforce state plaintiffs made a choice not to seek fees against law or general supervisory one party from whom they could clearly obtain fees was not a sufficient basis to allow plaintiffs [993 F.Supp.2d 1065] to continue this suit against inappropriate parties. power over the persons responsible for enforcing the challenged provision‖ is not sufficient. L.A. Neither Ex parte Young nor the Cnty. Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th impossibility of plaintiffs collecting fees from Cir.1992). Accordingly, Ex parte Young does the remaining defendants justified keeping the not allow a plaintiff to sue a state official who commissioners as defendants. Therefore, the cannot provide the relief the plaintiff actually commissioners were entitled to judgment on the seeks. See id. pleadings.

Under Arizona's redistricting process, the 3. Plaintiff's State–Law Claim Was Barred by commissioners have no direct connection to the Eleventh Amendment implementing the final legislative map nor do they have any supervisory power over those In addition to their § 1983 claim, plaintiffs state officials implementing the final legislative also asserted a state-law claim that the final map. Rather, it is the Secretary of State who legislative map ―violates the equal population enforces the map. See Ariz. Minority Coal. for requirement of Ariz. Const. art. 4, pt. 2, § Fair Redistricting v. Ariz. Indep. Redistricting 1(14)(B).‖ Defendants moved to dismiss this Comm'n, 211 Ariz. 337, 121 P.3d 843, 857 state-law claim as barred by the Eleventh (Ariz.Ct.App.2005) (per curiam) (―Once the Amendment pursuant to Pennhurst State School Commission certifies the maps, the secretary of & Hospital v. Halderman, 465 U.S. 89, 104 state must use them in conducting the next S.Ct. 900, 79 L.Ed.2d 67 (1984). Plaintiffs did election.‖). Plaintiffs named the Secretary of not dispute that a straightforward application of State as a defendant and the Secretary of State Pennhurst established their state-law claim was conceded he is responsible for enforcing the barred by the Eleventh Amendment. Instead, map. In light of this, assuming Ex parte Young plaintiffs argued defendants waived their allows suit against the commissioners in some Eleventh Amendment immunity. Plaintiffs were circumstances, the present suit did not qualify. incorrect.

Finally, plaintiffs argued the ―For over a century now, [the Supreme commissioners' ―presence [was] essential to Court] has consistently made clear that ‗federal maintaining section 1983 relief, which includes jurisdiction over suits against unconsenting an award of attorneys' fees under 42 U.S.C. § States was not contemplated by the Constitution 1988.‖ In other words, plaintiffs wanted to keep when establishing the the commissioners as defendants to ensure the possibility of plaintiffs recovering their [993 F.Supp.2d 1066] attorneys' fees. Plaintiffs did not cite, and the court could not find, any authority permitting the judicial power of the United States.‘ ‖ Sossamon issue of fees to determine the propriety of v. Texas, ––– U.S. ––––, 131 S.Ct. 1651, 1657– keeping certain defendants in a suit. Moreover, 58, 179 L.Ed.2d 700 (2011) (quoting Seminole plaintiffs' issue regarding fees was a problem of Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 their own creation in that the Secretary of State S.Ct. 1114, 134 L.Ed.2d 252 (1996)). A state undoubtedly was an appropriate defendant and may choose to waive its immunity, but the ―test plaintiffs could have sought fees from him. At for determining whether a State has waived its

- 18 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) immunity from federal-court jurisdiction is a Supreme Court. A majority of the court stringent one.‖ Id. at 1658 (quoting Coll. Sav. summarily denied the motion, with Judge Silver Bank v. Fla. Prepaid Postsecondary Ed. dissenting. Expense Bd., 527 U.S. 666, 675, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)). That test consists of Because ―Congress imposed the duty upon determining whether ―the state's conduct during all levels of the federal judiciary to give due the litigation clearly manifest[ed] acceptance of respect to a suitor's choice of a federal forum for the federal court's jurisdiction or [was] otherwise the hearing and decision of his federal incompatible with an assertion of Eleventh constitutional claims,‖ Pullman abstention is Amendment immunity.‖ Hill v. Blind Indus. & available only in narrowly limited, special Servs. of Md., 179 F.3d 754, 759 (9th Cir.1999). circumstances. Zwickler v. Koota, 389 U.S. 241, For example, the Ninth Circuit concluded waiver 248, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). At its occurred when a state appeared, actively core, it ―reflect[s] a doctrine of abstention litigated a case, and waited until the first day of appropriate to our federal system whereby the trial to claim immunity. Id. at 763. The situation federal courts, ‗exercising a wise discretion,‘ in the present case was significantly different. restrain their authority because of ‗scrupulous regard for the rightful independence of the state Plaintiffs filed their original complaint on governments' and for the smooth working of the April 27, 2012. The parties then engaged in federal judiciary.‖ Pullman, 312 U.S. at 501, 61 protracted pre-answer maneuvers that ended on S.Ct. 643. ―It is better practice, in a case raising November 16, 2012, when the court denied a federal constitutional or statutory claim, to defendants' motion to dismiss. Approximately retain jurisdiction, rather than to dismiss.‖ three weeks later, defendants filed their answer Zwickler, 389 U.S. at 244 n. 4, 88 S.Ct. 391. asserting Eleventh Amendment immunity as Pullman abstention generally is appropriate only well as a formal motion seeking judgment on the if three conditions are met: (1) the complaint pleadings based on that immunity. Thus, while ―requires resolution of a sensitive question of the case had been pending for over nine months federal constitutional law; (2) the constitutional at the time immunity was first asserted, the vast question could be mooted or narrowed by a majority of that time was consumed by briefing definitive and deciding a motion to dismiss. There was no meaningful delay between issuance of the order [993 F.Supp.2d 1067] on the motion to dismiss and defendants' assertion of the Eleventh Amendment. And ruling on the state law issues; and (3) the while defendants might have raised immunity possibly determinative issue of state law is earlier, the actual sequence of events falls short unclear.‖ Potrero Hills Landfill, Inc. v. Cnty. of of meeting the ―stringent‖ test for establishing Solano, 657 F.3d 876, 888–89 (9th Cir.2011) waiver. Sossamon, 131 S.Ct. at 1658. Therefore, (quoting Spoklie v. Mont., 411 F.3d 1051, 1055 defendants were entitled to judgment on the (9th Cir.2005)). Proper application of these pleadings regarding plaintiffs' state-law claim. conditions is meant to ensure federal courts defer ―to state court interpretations of state law‖ B. Motion for Abstention while avoiding ― ‗premature constitutional adjudication‘ that would arise from ‗interpreting Citing Railroad Commission of Texas v. state law without the benefit of an authoritative Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 construction by state courts'.‖ Id. (quoting L.Ed. 971 (1941), defendants moved to stay this Gilbertson v. Albright, 381 F.3d 965, 971 n. 6 case and defer hearing plaintiffs' federal claim (9th Cir.2004) (en banc)) (internal quotation until plaintiffs obtained resolution of state-law marks omitted). issues in state court or, in the alternative, to certify any state-law questions to the Arizona When deciding whether to exercise its discretionary equity powers to abstain, a court

- 19 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) also must consider that ―abstention operates to maps following the 2000 census, commenced in require piecemeal adjudication in many courts,‖ March 2002. See Ariz. Minority Coal. for Fair possibly ―delaying ultimate adjudication on the Redistricting v. Ariz. Indep. Redistricting merits for an undue length of time.‖ Baggett v. Comm'n, 220 Ariz. 587, 208 P.3d 676, 682 Bullitt, 377 U.S. 360, 378–79, 84 S.Ct. 1316, 12 (2009) (en banc). The state trial court did not L.Ed.2d 377 (1964). That delay can work issue its decision until January 2004, twenty-two substantial injustice because forcing ―the months later. See id. The appellate process did plaintiff who has commenced a federal action to not conclude until the Arizona Supreme Court's suffer the delay of state court proceedings might final decision in May 2009. Id. at 676. The itself effect the impermissible chilling of the Commission's motion for abstention came very constitutional right he seeks to protect.‖ before us in December 2012. At the time of our Zwickler, 389 U.S. at 252, 88 S.Ct. 391. decision on the motion, in February 2013, no state court action was pending. Thus, deferring Delay caused by abstention is especially ruling on the federal claim would have delayed problematic in voting rights cases. Harman v. adjudication on the merits until a state court Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, action was initiated and concluded, which likely 14 L.Ed.2d 50 (1965). The Ninth Circuit noted would have precluded in a redistricting case that due to the ―special dangers of delay, courts have been reluctant to [993 F.Supp.2d 1068] rely solely on traditional abstention principles in 9 voting cases.‖ Badham v. U.S. Dist. Court for relief in time for the 2014 election cycle. the N. Dist. of Cal., 721 F.2d 1170, 1173 (9th Cir.1983). Expressing specific concern about the Furthermore, we could not resolve the possibility of a potentially defective redistricting state-law issues as this case no longer included plan being left in place for an additional election the state-law claim because the State of cycle, it held that ―before abstaining in voting Arizona's Eleventh Amendment immunity under cases, a district court must independently Pennhurst precluded relief on that claim in consider the effect that delay resulting from the federal court. And, it was also unclear whether abstention order will have on the plaintiff's right any state law issues were implicated in plaintiffs' to vote.‖ Id. remaining federal claim. In sum, this case is unlike the typical case warranting Pullman Given the importance of prompt abstention, where the federal court will adjudication of voting rights disputes, we necessarily construe a state statute that the state exercised our discretion and decided not to courts themselves have not yet construed in abstain. The three conditions precedent to order to decide the sensitive question of whether applying Pullman abstention identified above the state statute violates the federal Constitution. might have been present here, but we concluded See, e.g., Potrero Hills Landfill, 657 F.3d at 889. that we should deny the motion without having Here, by contrast, we did not need to resolve any to make that determination because of the likely question of state law as a predicate to deciding delay that would have resulted. the merits of the federal claim. Therefore, we concluded that the special circumstances If we abstained as defendants requested, it necessary for exercising discretion to defer was not likely that a resolution could be reached ruling on plaintiffs' federal claim did not exist. in time to put a new plan in place, if necessary, for the 2014 election cycle. Not only are voting As an alternative to their request for rights disputes particularly important, they are abstention, defendants requested the court also particularly complex. The last round of certify any state-law questions to the Arizona litigation over redistricting in Arizona, Supreme Court. A basic prerequisite for a court concerning Arizona's legislative redistricting to certify a question to the Arizona Supreme Court is the existence of a pending issue of

- 20 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Arizona law not addressed by relevant Arizona right to refuse deposition or discovery requests authorities. See, e.g., Seltzer v. Paul Revere Life in connection with their legislative acts. In Ins. Co., 688 F.3d 966, 968 (9th Cir.2012). In United States v. Gillock, 445 U.S. 360, 100 S.Ct. addition, Arizona's certification statute requires 1185, 63 L.Ed.2d 454 (1980), the Supreme the presence of a state-law question that ―may be Court held that a state senator could not bar the determinative‖ of the case. A.R.S. § 12–1861. introduction of evidence of his legislative acts in With the dismissal of plaintiffs' state-law claim, a federal criminal prosecution. Although Gillock there was no pending issue of Arizona law in could have claimed protection under the federal this case. Therefore, the request in the Speech or Debate Clause had he been a Member alternative for certification also was denied. of Congress, the Court refused ―to recognize an evidentiary privilege similar in scope to the C. Motion for Protective Order Federal Speech or Debate Clause‖ for state legislators. Id. at 366, 100 S.Ct. 1185. The Court Prior to discovery, the Commission moved reasoned that ―although principles of comity for a protective order on the basis of legislative command careful consideration, ... where privilege. The Commission requested that the important federal interests are at stake, as in the panel prohibit the depositions of the enforcement of federal criminal statutes, comity commissioners, their staff, and their consultants, yields.‖ Id. at 373, 100 S.Ct. 1185. The Court in as well as limit the scope of documents and Gillock held that no legislative privilege exists in interrogatories during discovery. We ordered the federal criminal prosecutions. It did not opine on commissioners, at the time defendants in this the existence or extent of legislative privilege for case, to inform the court through counsel state legislators in the civil context. whether they would exercise legislative privilege if asked questions covered by the privilege. The Ninth Circuit has recognized that state Commissioners Mathis, Herrera, and McNulty legislators and their aides may be protected by a informed the court that they would invoke legislative privilege. See Jeff D. v. Otter, 643 legislative privilege, F.3d 278, 289–90 (9th Cir.2011). That case did not consider legislative privilege in the [993 F.Supp.2d 1069] redistricting context, however, let alone whether while Commissioners Freeman and Stertz citizen commissioners could assert the privilege. indicated they would waive it. We later denied Moreover, its discussion of legislative privilege the motion for a protective order, and we now was limited. The decision did not indicate explain the basis for doing so. whether state legislators might assert an absolute legislative privilege in all civil litigation, or Whether members of an independent whether any privilege state legislators held must redistricting commission can withhold relevant yield when significant competing interests exist. evidence or refuse to be deposed on the basis of legislative privilege is an issue of first Whether or not state legislators might be impression. Neither the Ninth Circuit nor, as far able to assert in federal court an absolute as we can tell, any other court has decided legislative privilege in some circumstances, we whether members of an independent redistricting do not think that the citizen commissioners here commission can assert legislative privilege in a hold an absolute privilege. The Fourth Circuit challenge to the redistricting plan they produced. has recognized, albeit not specifically in any In the present litigation, we conclude that redistricting cases, a seemingly absolute members of the Arizona Independent privilege against compulsory evidentiary process Redistricting Commission cannot assert a for state legislators and other officials acting in a legislative evidentiary privilege. legislative capacity. See EEOC v. Wash. Suburban Sanitary Comm'n, 631 F.3d 174, 180– State legislators do not have an absolute 81 (4th Cir.2011). The purposes underlying an

- 21 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) absolute privilege for state legislators are that it extend a qualified legislative privilege to the ―allows them to focus on their public duties by commissioners in this case. Some courts have removing the costs and distractions attending recognized a qualified privilege for state lawsuits [and] shields them from political wars legislators in redistricting cases, in which a of attrition in which their opponents try to defeat balancing test determines whether particular them through litigation rather than at the ballot evidence is barred by the privilege. See, e.g., box.‖ Id. at 181. However, these are not Rodriguez v. Pataki, 280 F.Supp.2d 89, 101 persuasive reasons for extending the privilege to (S.D.N.Y.2003), aff'd,293 F.Supp.2d 302 appointed citizen commissioners. Unlike (S.D.N.Y.2003). These cases did not involve an legislators, the commissioners have no other independent redistricting commission, however, public duties from which to be distracted. and several of these cases even suggested that a SeeAriz. Const. art. IV, pt. 2, §§ 1(3), (13) legislative privilege would not apply to citizen (providing that commissioners cannot hold commissioners. See Favors v. Cuomo, 285 elected office during or for the three years F.R.D. 187, 220 (E.D.N.Y.2012) (concluding following their service on the Commission). that permitting discovery would have minimal They cannot be defeated at the ballot box chilling effect on future legislative redistricting deliberations because New York had recently [993 F.Supp.2d 1070] passed a law creating an independent redistricting commission composed of non- because they don't stand for election. Indeed, the legislators); Rodriguez, 280 F.Supp.2d at 101 process is not supposed to be governed by what (distinguishing between discovery requests happens at the ballot box. The reason why aimed at the legislature itself and those aimed at Arizona transferred redistricting responsibilities an advisory redistricting commission composed from the legislature to the Commission was to of legislators and non-legislators, because the separate the redistricting process from politics. latter was ―more akin to a conversation between See Ariz. Proposition 106 (2000), available at legislators and knowledgeable outsiders‖); http:// www. Marylanders for Fair Representation, Inc. v. azsos.gov/election/2000/info/pubpamphlet/prop2 Schaefer, 144 F.R.D. 292, 301 n. 19, 304–05 –C–2000.htm (on the ballot title of the initiative (D.Md.1992) (holding that legislators were creating the Commission, stating one purpose protected by the privilege, but not citizens behind the law as ―ending the practice of serving on a redistricting advisory committee). gerrymandering‖). In determining whether a qualified In addition, to the extent comity is a privilege applies to state legislators, the courts rationale underlying legislative privilege, the that recognize a qualified privilege often balance Supreme Court has held that comity can be the following factors: ―(i) the relevance of the trumped by ―important federal interests.‖ evidence sought to be protected; (ii) the Gillock, 445 U.S. at 373, 100 S.Ct. 1185. The availability of other evidence; (iii) the federal government has a strong interest in ‗seriousness' of the litigation and the issues securing the equal protection of voting rights involved; (iv) the role of the government in the guaranteed by the Constitution, an interest that litigation; and (v) the possibility of future can require the comity interests underlying timidity by government employees who will be legislative privilege to yield. Cf. Badham, 721 forced to recognize that their secrets are F.2d at 1173 (observing that federal courts are violable.‖ Rodriguez, 280 F.Supp.2d at 101. more reluctant to abstain in voting rights cases These factors weigh heavily against recognizing and noting that the ―right to vote is fundamental a privilege for members of an independent because it is preservative of all rights‖ (internal redistricting commission. Because what quotations marks and alterations omitted)). motivated the Commission to deviate from equal For similar reasons, we also refuse to district populations is at the heart of this

- 22 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) litigation, evidence bearing on what justifies In conclusion, the rationale supporting the these deviations is highly relevant. In the event legislative privilege does not support extending that plaintiffs' claims have merit, and that the it to the members of the Arizona Independent commissioners were motivated by an Redistricting Commission in this case. impermissible purpose, the commissioners would likely have kept out of the public IV. Conclusions of LawA. Burden of Proof

[993 F.Supp.2d 1071] The Equal Protection Clause of the Fourteenth Amendment requires that state record evidence making that purpose apparent. legislative districts ―must be apportioned on a See Cano v. Davis, 193 F.Supp.2d 1177, 1181– population basis,‖ meaning that the state must 82 (C.D.Cal.2002) (Reinhardt, J., concurring in ―make an honest and good faith effort to part and dissenting in part) (―Motive is often construct districts ... as nearly of equal most easily discovered by examining the population as is practicable.‖ Reynolds v. Sims, unguarded acts and statements of those who 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d would otherwise attempt to conceal evidence of 506 (1964). Some deviation in the population of discriminatory intent.‖). The federal interest in legislative districts is constitutionally protecting voting rights is a serious one, as permissible, so long as the disparities are based discussed earlier, and can require comity on ―legitimate considerations incident to the concerns to yield. effectuation of a rational state policy.‖ Id. at 579, 84 S.Ct. 1362. Compactness, contiguity, Perhaps most importantly, the nature and respecting lines of political subdivisions, purpose of the Commission undermines the preserving the core of prior districts, and claim that allowing discovery will chill future avoiding contests between incumbents are deliberations by the Commission or deter future examples of the legitimate criteria that can commissioners from serving. See Favors, 285 justify minor population deviations, so long as F.R.D. at 220. The commissioners will not be these criteria are ―nondiscriminatory‖ and distracted from other duties because they have ―consistently applied.‖ Karcher v. Daggett, 462 no other duties, and their future actions will not U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 be inhibited because they have no future (1983). responsibility. SeeAriz. Const. art. IV, pt. 2, §§ 1(3), (13). And, as the majority in Marylanders Before requiring the state to justify its observed: ―We ... deem it extremely unlikely deviations, plaintiffs must make a prima facie that in the future private citizens would refuse to case of a one-person, one-vote violation. By serve on a prestigious gubernatorial committee itself, the existence of minor deviations is because of a concern that they might insufficient to make out a prima facie case of subsequently be deposed in connection with discrimination. Brown v. Thomson, 462 U.S. actions taken by the committee.‖ 144 F.R.D. at 835, 842, 103 S.Ct. 2690, 77 L.Ed.2d 214 305 n. 23. (1983). With respect to state legislative districts, the Supreme Court has said that, as a general The parties dispute the relevance of some matter, a ―plan with a maximum population of plaintiffs' requested discovery. But to the deviation under 10% falls within this category of extent that plaintiffs have requested information minor deviations.‖ Id. at 842, 103 S.Ct. 2690. not relevant to the central disputes in this Although courts rarely strike down plans with a litigation, the Commission need not rely on maximum deviation of less legislative privilege for protection. As stated in our order dated February 22, 2013, the court will [993 F.Supp.2d 1072] not permit ―discovery that is not central to the federal claims or any other inappropriate burden than ten percent, a maximum deviation below under Federal Rule of Civil Procedure 26(c).‖ ten percent does not insulate the state from

- 23 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) liability, but instead merely keeps the burden of what the standard should be. 10 We proof on the plaintiff. See Cox v. Larios, 542 U.S. 947, 124 S.Ct. 2806, 159 L.Ed.2d 831 [993 F.Supp.2d 1073] (2004) (summarily affirming the invalidation of a plan with a 9.98 percent maximum population conclude, for purposes of this decision, that deviation). plaintiffs must, at a minimum, demonstrate that illegitimate criteria predominated over Because the maximum deviation here is legitimate criteria. below ten percent, the burden is on plaintiffs to prove that the deviations did not result from the Finally, we reject plaintiffs' argument that effectuation of legitimate redistricting policies. strict scrutiny applies to the extent that the The primary way in which plaintiffs seek to Commission claims that racial motivations drove carry their burden is by showing that the the deviations from population equality. All of Commission deviated from perfect population the cases cited in support of this argument equality out of a desire to increase the electoral involve racial gerrymandering claims. See, e.g., prospects of Democrats at the expense of Abrams v. Johnson, 521 U.S. 74, 117 S.Ct. Republicans. Plaintiffs argue that partisanship is 1925, 138 L.Ed.2d 285 (1997). As plaintiffs not a legitimate redistricting policy that can concede, this is not a racial gerrymandering justify population deviations. case. Nor have plaintiffs specifically articulated how, in the absence of a claim of racial The Supreme Court has not decided discrimination, strict scrutiny helps their case. whether or not political gain is a legitimate state Suppose that, applying strict scrutiny, we redistricting tool. See Cox, 542 U.S. at 951, 124 concluded that the Commission employed race S.Ct. 2806 (Scalia, J., dissenting) (noting that as a redistricting factor in a manner not narrowly the Court has not addressed whether a tailored to advance a compelling governmental redistricting plan with a maximum deviation interest. That may establish a racial under ten percent ―may nevertheless be gerrymandering violation, but it would not invalidated on the basis of circumstantial establish a one-person, one-vote violation. We evidence of partisan political motivation‖). decline to reduce plaintiffs' burden by importing Because we conclude that the redistricting plan strict scrutiny into the one-person, one-vote here does not violate the Fourteenth Amendment context, a context in which the Supreme Court whether or not partisanship is a legitimate has made clear we owe state legislators redistricting policy, we need not resolve the substantial deference. See Gaffney v. Cummings, question. For the purposes of this opinion, we 412 U.S. 735, 749, 93 S.Ct. 2321, 37 L.Ed.2d assume, without deciding, that partisanship is 298 (1973). not a valid justification for departing from perfect population equality. In sum, plaintiffs must prove that the deviations were not motivated by legitimate Even assuming that small deviations considerations or, if motivated in part by motivated by partisanship might offend the legitimate considerations, that illegitimate Equal Protection Clause, plaintiffs will not considerations predominated over legitimate necessarily sustain their burden simply by considerations. Because we have found that the showing that partisanship played some role. The deviations in the Commission's plan were Supreme Court has not specifically addressed largely motivated by efforts to gain preclearance what a plaintiff must prove in a one-person, one- under the Voting Rights Act, we turn next to vote challenge when population deviations result whether compliance with Section 5 of the from mixed motives, some legitimate and some Voting Rights Act is a permissible justification illegitimate. for minor population deviations.

This panel has not reached a consensus on B. Compliance with the Voting Rights Act as a

- 24 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Legitimate Redistricting Policy state legislative districts are not subject to as strict a standard. A state legislative plan may The Supreme Court has not specifically include some variation in district population in spoken to whether compliance with the Voting pursuit of legitimate interests. Rights Act is a redistricting policy that can justify minor population deviations. The Court The dissenting opinion also acknowledges, has not provided an exhaustive list of at 1101 & 1105, that obtaining preclearance permissible criteria. Among the legitimate under the Voting Rights Act was a legitimate criteria it has approved are compactness, objective in redistricting. But it contends that contiguity, respecting municipal lines, pursuit of that objective could not justify even preserving the cores of prior districts, and minor variations in population among districts. avoiding contests between incumbents. Karcher, In practical terms, the dissenting opinion would 462 U.S. at 740, 103 S.Ct. 2653. In the context apparently permit the Commission to consider of racial gerrymandering cases, the Court has the preclearance objective only in drawing lines assumed, without deciding, that the Voting dividing districts of equal sizes. Rights Act is a compelling state interest. Vera, 517 U.S. at 977, 116 S.Ct. 1941 (plurality The Supreme Court has made it clear, opinion). however, that states have greater latitude when it comes to state legislative districts. The Equal We conclude that compliance with the Protection Clause does not require exact Voting Rights Act is among the legitimate equality. In drawing lines for state legislative redistricting criteria that can justify minor districts, ―[a]ny number of consistently applied population deviations. If compliance with the legislative policies might justify some variance.‖ Voting Rights Act is not a legitimate, rational Karcher, 462 U.S. at 740, 103 S.Ct. 2653. state policy on par with compactness and Obtaining preclearance under the Voting Rights contiguity, we doubt that the Court would have Act appears to us to be as legitimate a reason as assumed in Vera that it is a compelling state other policies that have been recognized, such as interest. Neither plaintiffs nor the dissenting avoiding contests between incumbents and opinion have offered a sensible explanation. respecting municipal lines.

More importantly, we fail to see how Plaintiffs and the dissenting opinion, at compliance with a federal law concerning voting 1103, attempt to reframe the inquiry, arguing rights—compliance which is mandatory for a that the text of the Voting Rights Act itself does redistricting plan to take effect—cannot justify not specifically authorize population deviations. minor population That is correct; there is no specific authorization for population deviations in the text of the [993 F.Supp.2d 1074] legislation. But neither is there specific, textual authorization for population deviations in any of deviations when, for example, protecting the other legitimate, often uncodified legislative incumbent legislators can. This is, perhaps, our policies that the Supreme Court has held can primary disagreement with the dissenting justify population deviations. For example, the opinion. It too narrowly defines the reasons that Supreme Court's conclusion that compactness may properly be relied upon by a state to draw can justify population deviations does not turn state legislative districts with wider variations in on the existence of a Compactness Act that population. specifically authorizes population deviations for The dissenting opinion correctly notes, at the sake of compact districts. The question is not 1103–04, that states are required to establish whether the Voting Rights Act specifically congressional districts of essentially equal authorizes population deviations, but whether population. It acknowledges, as it must, that seeking preclearance under the Voting Rights

- 25 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Act is a legitimate, rational state goal in the plaintiffs have cited the Department's Guidance redistricting process. We are satisfied that it is. as supporting its position, and we do not agree. In our view, the Department's Guidance The dissenting opinion, at 1103, goes a step expresses a conclusion that avoiding further and argues that the Voting Rights Act retrogression can justify minor population itself prohibits any deviation in exact population deviations. That is our conclusion, as well, based equality for the purpose of complying with the on our own view of the law, separate and apart Voting Rights Act. No court has so held, and we from the Department's position. note that plaintiffs themselves have alleged that the Arizona redistricting plan violates the Equal This conclusion is not altered by the Protection Clause, not that it violates the Voting Supreme Court's recent decision in Shelby Rights Act. We do not read the Act in the same County v. Holder, ––– U.S. ––––, 133 S.Ct. way that the dissenting opinion does.11 2612, 186 L.Ed.2d 651 (2013), which was decided after the legislative map in question here [993 F.Supp.2d 1075] was drawn and implemented.12 In Shelby County, the Court held that Section 4(b) of the Plaintiffs also argue that the Department of Voting Rights Act, which contained the formula Justice does not purport to be able to force determining which states were subject to the jurisdictions to depopulate districts to comply preclearance requirement, was unconstitutional. with Section 5. In a document entitled Id. at 2631. The Court did not hold that the ―Guidance Concerning Redistricting Under preclearance requirement of Section 5 was Section 5 of the Voting Rights Act,‖ the unconstitutional, but its ruling rendered the Department advises: ―Preventing retrogression preclearance requirement inapplicable to under Section 5 does not require jurisdictions to previously covered jurisdictions, at least until violate the one-person, one-vote principle.‖ 76 Congress enacts a new coverage formula that Fed.Reg. 7470, 7472 (Feb. 9, 2011). But the passes constitutional muster. See id. Guidance goes on to make clear that, in the Department's view, Section 5 might in some Plaintiffs and the dissenting opinion, at cases require minor population deviations in 1100–02, argue that this ruling applies state legislative plans. When a jurisdiction retroactively to this case, such that the asserts that it cannot avoid retrogression because Commission was not required to obtain of population shifts, the Department looks to see preclearance for the legislative map at issue, whether there are reasonable, less retrogressive thereby nullifying the pursuit of preclearance as alternatives, as the existence of these alternatives a justification for population deviations. See could disprove the jurisdiction's assertion that Harper v. Va. Dep't of Taxation, 509 U.S. 86, retrogression is unavoidable. For state legislative 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) redistricting, ―a plan that would require (requiring that a rule of federal law announced significantly greater overall population by the Court and applied to the parties in that deviations is not considered a reasonable controversy ―be given full retroactive effect by alternative.‖ Id. (emphasis added). The all courts adjudicating federal law‖). implication is that the Department would consider a plan with slightly greater population But that approach reads too much into deviation to be a reasonable plan that would Shelby County. The Court did not hold that avoid retrogression—in other words, the Section 5 of the Voting Rights Act, the section Department might hold a state in violation of that sets out the preclearance process, was Section 5 if it could have avoided retrogression unconstitutional. The Court's with the aid of minor population deviations. To be clear, we do not base our understanding of [993 F.Supp.2d 1076] the law upon the Department's interpretation, but opinion stated explicitly to the contrary: ―We

- 26 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) issue no holding on § 5 itself, only on the generally decline to require the officer to predict coverage formula.‖ Shelby Cnty., 133 S.Ct. at whether the statute will later be held 2631. The Court did not hold that Arizona or unconstitutional, unless the statute is so clearly any other jurisdiction could not be required to unconstitutional that a reasonable officer would comply with the preclearance process, if a have known so at the time. Id. at 355, 107 S.Ct. proper formula was in place for determining 1160; see also Davis v. United States, –––U.S. – which jurisdictions are properly subject to the –––, 131 S.Ct. 2419, 2431–32, 180 L.Ed.2d 285 preclearance process. To the contrary, the (2011) (noting that even though a new Fourth Court's opinion expressly faulted Congress for Amendment rule applies retroactively, ―the not updating the coverage formula, implying that exclusion of evidence does not automatically a properly updated coverage formula that follow‖ because of the good-faith exception). ―speaks to current conditions‖ would withstand challenge. Id. Arizona was not the only state that drew new district lines following the 2010 census. If we had before us a challenge to the The other states and jurisdictions subject to coverage formula set forth in Section 4 of the preclearance under the Voting Rights Act Voting Rights Act, we would unquestionably be engaged in the same exercise. Nothing in Shelby expected to apply Shelby County ―retroactively,‖ County suggests that all those maps are now and we would do so. That is, however, not the invalid, and we are aware of no court that has issue before us. Neither is the issue before us reached such a conclusion, despite the concern whether the legislative map violated or complied expressed in the dissenting opinion, at 1100, that with the Voting Rights Act. leaving the maps in place ―would give continuing force to Section 5.‖ To repeat, Shelby Rather, the issue is whether the County did not hold Section 5 to be Commission was motivated by compliance with unconstitutional. Neither did it hold that any that law in deviating from the ideal population. effort by a state to comply with Section 5 was In other contexts, where the issue is not whether improper. the actions of public officials actually complied with the law but instead whether they might In redistricting, we should expect states to have reasonably thought to have been in comply with federal voting rights law as it compliance, we do not expect those public stands at the time rather than attempt to predict officials to predict the future course of legal future legal developments and selectively developments. comply with voting rights law in accordance with their predictions. Accordingly, so long as For example, in the qualified immunity the Commission was motivated by the context, the issue is whether the actions of requirements of the Voting Rights Act as it public officials ―could reasonably have been reasonably understood them at the time, thought consistent with the rights they are compliance with the Voting Rights Act served as alleged to have violated.‖ Anderson v. a legitimate justification for minor population Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, deviations. 97 L.Ed.2d 523 (1987). There, we assess their actions based on law ―clearly established‖ at the [993 F.Supp.2d 1077] time their actions were taken. Id. at 639, 107 S.Ct. 3034. Similarly, in the Fourth Amendment C. Application to 2012 Legislative Map context, we decline to apply the exclusionary rule when a police officer conducts a search in Plaintiffs argue that Districts 8, 24, and 26 reasonable reliance on a later invalidated statute. could not have been motivated by compliance Illinois v. Krull, 480 U.S. 340, 348–49, 107 with the Voting Rights Act. They argue that only S.Ct. 1160, 94 L.Ed.2d 364 (1987). We eight ability-to-elect districts existed in the benchmark plan. Because the Commission had

- 27 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) created eight ability-to-elect districts even In any event, we need not determine without Districts 8, 24, and 26, and avoiding whether the minor population deviations were retrogression only requires creating as many strictly necessary to gain preclearance. Plaintiffs ability-to-elect districts as are in the benchmark presented testimony from an expert witness, plan, plaintiffs argue that the Voting Rights Act Thomas Hofeller, to demonstrate that a plan could not have motivated the creation of these could have been drawn with smaller population three districts. In essence, plaintiffs urge us to deviations. Dr. Hofeller prepared such a map, determine how many ability-to-elect districts but he acknowledged that he had not taken other were strictly necessary to gain preclearance and state interests into account, including interests to hold that deviations from the creation of clearly identified as legitimate, nor had he purported ability-to-elect districts above that performed a racial polarization or functional number cannot be justified by Voting Rights Act analysis, so that map did not necessarily present compliance. a practical alternative. Because he concluded, contrary to the Commission and its counsel and This argument runs into several problems. consultants, that the benchmark number for First of all, plaintiffs have not given the court a minority ability-to-elect districts in the prior basis to independently determine that there plan was only eight (seven Hispanic districts and existed only eight ability-to-elect districts in the one Native American district), his belief that his benchmark plan. Plaintiffs point to the fact that alternative map would have been precleared by the Commission argued that there were eight the Justice Department was disputed. More benchmark districts in its submission to the importantly, evidence that a map could have Department of Justice. But the submission to the been drawn with smaller population deviations Department was an advocacy document. The does not prove that illegitimate criteria Commission was motivated to make the motivated the deviations. See Marylanders for strongest case for preclearance by arguing for a Fair Representation, Inc. v. Schaefer, 849 low number of benchmark ability-to-elect F.Supp. 1022, 1035 (D.Md.1994). districts and a high number of new ability-to- elect districts. The Commission's consultants [993 F.Supp.2d 1078] and counsel, in public meetings, had advised the Commission that their analysis suggested the Rather, it is enough that the minor existence of ten benchmark districts. The population deviations are ―based on legitimate discrepancy between the advice given in considerations.‖ Reynolds v. Sims, 377 U.S. 533, meetings and the arguments put forth in the 579, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In submission to the Department of Justice is not a other words, we will invalidate the plan only if sufficient basis for the court to conclude that the evidence demonstrates that the deviations there were only eight ability-to-elect districts in were not the result of reasonable, good-faith the benchmark plan. Moreover, while plaintiffs efforts to comply with the Voting Rights Act. criticize elements of the functional analysis We will not invalidate the plan simply because performed by the Commission's consultants, the Commission might have been able to adopt a plaintiffs have not provided the court with any map that would have precleared with less functional analysis of their own or from any population deviation if we determine that in other source showing which districts provided adopting its map the Commission was genuinely minorities with the ability to elect in either the motivated by compliance with the Voting Rights benchmark plan or the current plan that they Act. challenge. In short, even if we were inclined to independently determine how many ability-to- This approach is in accord both with the elect districts existed in the benchmark plan, deference federal courts afford to states in plaintiffs have not carried their burden to show creating their own legislative districts and the that there were only eight. realities of the preclearance process. The

- 28 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Department of Justice does not inform illegitimate policies. The legislature had taken jurisdictions of the number of districts necessary counsel's advice to mean that it did not need to for preclearance ahead of time. Nor could the have legitimate reasons for deviating. The court Commission be certain which districts in any held that they did need legitimate reasons for tentative plan would be recognized by the deviating, and the Supreme Court affirmed. Department as having an ability to elect. These determinations are complex and not subject to Here, by contrast, what motivated the mathematical certainty. For us to determine the Commission is at issue. Counsel's advice does minimum number of ability-to-elect districts not insulate the Commission from liability, but it necessary to comply with the Voting Rights Act is probative of the Commission's intent. That is and then to strike down a plan if minor not to say that reliance on the advice of counsel population deviations resulted from efforts that will in all cases demonstrate the good-faith we concluded were not strictly necessary for pursuit of a legitimate objective. The advice compliance would create a very narrow target might be so unreasonable that the Commission for the state. It would also deprive states of the could not reasonably have believed it, or other flexibility to which the Supreme Court's one- evidence may show that the Commission was person, one-vote jurisprudence entitles them in not acting pursuant to the advice. But the legislative redistricting. See Gaffney v. Commission's attorneys Cummings, 412 U.S. 735, 749, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (―Nor is the goal of fair and [993 F.Supp.2d 1079] effective representation furthered by making the gave reasonable advice as to how to pursue what standards of reapportionment so difficult to they identified as a legitimate objective, and the satisfy that the reapportionment task is Commission appeared to act in accordance with recurringly removed from legislative hands and that advice. That is strong evidence that the performed by federal courts‖). Commission's actions were indeed in the pursuit That deviations from perfect population of that objective, one that we have concluded for equality in this case resulted in substantial part ourselves was legitimate. because of the Commission's pursuit of With respect to the ten districts presented to preclearance is evidenced both by its the Department of Justice as ability-to-elect deliberations and by advice given to the districts, including Districts 24 and 26, the Commission by its counsel and consultants. evidence before us shows that the population Plaintiffs cite Larios v. Cox for the proposition deviations were predominantly based on that advice of counsel is not a defense to legitimate considerations. The Commission was constitutional infirmities in a redistricting plan. advised by its consultants and counsel that it 300 F.Supp.2d 1320 (N.D.Ga.2004), aff'd,542 needed to create at least ten districts. Given the U.S. 947, 124 S.Ct. 2806, 159 L.Ed.2d 831 uncertainty in determining the number of (2004). In Larios, state legislators mistakenly districts, and that one of the Commission's believed that any plan with a maximum highest priorities was to preclear the first time, deviation below ten percent was immune from a the Commission was not unreasonable in acting one-person, one-vote challenge and then created pursuant to this advice. As noted in our findings a plan with a maximum deviation of 9.98 of fact, the target of ten districts was not percent deviations in the pursuit of illegitimate controversial and had bipartisan support. All objectives. See id. at 1328. In holding that the commissioners, including the Republican plan violated the one-person, one-vote principle, appointees, believed that ten districts were the court held that reliance on faulty legal advice appropriate. did not remedy the constitutional infirmity in the plan. Id. at 1352 n. 16. But in Larios, there was A somewhat closer question is presented by no question that the legislature had pursued the changes to the district boundaries, including

- 29 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Districts 24 and 26, made between the draft map expressed support for it before there was any and the final map. The draft racial polarization mention of presenting District 8 to the analysis prepared by King and Strasma indicated Department of Justice for the sake of that minorities would be able to elect candidates preclearance. of their choice in all ten proposed ability-to-elect districts in the draft map. Plaintiffs argue that no But while partisanship played some role, further changes could be justified by the plaintiffs have not carried their burden to Commission's desire to obtain preclearance demonstrate that partisanship predominated over because the draft map met that goal. The legitimate factors. Because Commissioner preclearance decision was not going to be made McNulty's change only slightly by King and Strasma, however, and the Commission could not be sure what it would [993 F.Supp.2d 1080] take to satisfy the Department of Justice. The increased the level of population inequality in Commission was advised to try to strengthen the District 8 and the other affected districts, let minority ability-to-elect districts even further, alone the plan as a whole, plaintiffs must make a and it was not unreasonable under the particularly strong showing to carry their circumstances for the Commission to undertake burden. Cf. Karcher, 462 U.S. at 741, 103 S.Ct. that effort. With regard to the ten ability-to-elect 2653 (―The showing required to justify districts, we conclude that plaintiffs have not population deviations is flexible, depending on carried their burden of demonstrating that no the size of the deviations, [etc.]‖). As noted in legitimate motive caused the deviations or that our findings, the changes in population partisanship predominated. Creation of these inequality from draft map to final map that can districts was primarily a consequence of the be attributed to the vote on Commissioner Commission's good-faith efforts to comply with McNulty's proposed change is an increase of 0.7 the Voting Rights Act and to obtain percent deviation in District 8, a decrease of 1.6 preclearance. percent in District 11, an increase of 2.4 percent District 8 presents an even closer question, in District 12, and an increase of 1.4 percent in because the evidence clearly shows that District 16. Altogether, the change resulted in a partisanship played some role in its creation. small decrease in deviation in one district and Commissioner McNulty presented the possible small increases in deviation in three districts. change to Districts 8 and 11 as an opportunity to While there is some increase in deviation that make District 8 into a more competitive district. can be attributed in part to partisanship, it is not We do not doubt that the creation of competitive a particularly large increase. districts is a rational, legitimate state interest. We have also found that the preclearance But to justify population deviations, legitimate goal played a role in the change to District 8. state criteria must be ―nondiscriminatory‖ and Consultants and counsel suggested pursuing it ―consistently applied.‖ Karcher v. Daggett, 462 for the sake of preclearance, and only then did U.S. 725, 740, 103 S.Ct. 2653, 77 L.Ed.2d 133 Chairwoman Mathis endorse the idea. Without (1983). Commissioner McNulty's her vote, there would not have been a majority competitiveness proposal was neither applied to adopt that change. In light of the small consistently nor in a nondiscriminatory fashion. deviations resulting from this change order and It was applied to improve Democratic prospects because legitimate efforts to achieve in one single district. It was not applied to preclearance also drove the decision, plaintiffs districts favoring Democrats as well as to those have not proved that partisanship predominated favoring Republicans, so competitiveness cannot over legitimate reasons for the Commission as a justify the deviation. We have found that whole. partisanship motivated the Democratic commissioners to support this change, since both We have concluded that compliance with

- 30 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) the Voting Rights Act is a legitimate state policy three conditions are met. ―First, the complaint that can justify minor population deviations, that must touch on a sensitive area of social policy the deviations in the map in large part resulted upon which the federal courts ought not to enter from this goal, and that plaintiffs have failed to unless no alternative to its adjudication is open.‖ show that other, illegitimate motivations Cano v. Davis, 191 F.Supp.2d 1140, 1142 predominated over the preclearance motivation. (C.D.Cal.2002) (quotation omitted). Second, it Therefore, plaintiffs' challenge to the map under must be clear that the federal constitutional the one-person, one-vote principle fails. claim presented in the complaint ―could be mooted or narrowed by a definitive ruling on the V. Conclusion state law issues‖ raised by the complaint. Potrero Hills Landfill, Inc. v. Cnty. of Solano, We find in favor of the Commission on 657 F.3d 876, 888 (9th Cir.2011) (quotation plaintiffs' claim that the Commission's omitted). And third, ―the possibly determinative legislative redistricting plan violated the one- issue of state law is unclear.‖ Id. (quotation person, one-vote principle of the Equal omitted). In my view, all three conditions were Protection Clause of the Fourteenth Amendment met. of the United States Constitution. We order the entry of judgment for the Commission. On the first condition, as observed by another three judge panel hearing a redistricting ROSLYN O. SILVER, District Judge, suit, ―[r]edistricting is undoubtedly a sensitive concurring in part, dissenting in part, and area of state policy.‖ Cano, 191 F.Supp.2d at concurring in the judgment: 1142. Neither plaintiffs nor the per curiam I agree plaintiffs have not proven a opinion disputes this condition was satisfied. violation of Equal Protection and, therefore, I On the second condition, resolution of the concur in the judgment against them. I also join state-law claim raised by plaintiffs might have the rulings in connection with the motion for removed the need to address their federal judgment on the pleadings. I disagree, however, constitutional claim. In opposing the request for on the issue of abstention. Also, I have my own abstention, plaintiffs seemed to be claiming the view of the standard applicable to plaintiffs' second condition was not satisfied because it claim and whether plaintiffs proved partisanship 1 was not certain that resolving their state-law was involved in crafting the final map. claim would end the case. But certainty is not 1. Pullman Abstention required. As explained by the Ninth Circuit, it need not be ―absolutely certain‖ that the state- In December 2012, defendants requested law issue will ―obviate the need for considering we stay this case and defer hearing plaintiffs' the federal constitutional issues.‖ Sinclair Oil federal claim until plaintiffs' state-law claim Corp. v. Cnty. of Santa Barbara, 96 F.3d 401, could be resolved by the Arizona courts. At that 409 (9th Cir.1996). It is sufficient that the state- specific time, I believed abstention was law issue ―may‖ have some impact on the appropriate. The following explains why I federal claim. C–Y Dev. Co. v. City of Redlands, reached that conclusion and why, if the motion 703 F.2d 375, 379 (9th Cir.1983). More were being importantly, however, plaintiffs' own statements indicated that they believed resolution of their [993 F.Supp.2d 1081] state-law claim would end this case. That is, plaintiffs argued they were certain to prevail on decided today, abstention likely would not be their state-law claim. If plaintiffs were correct, appropriate. the federal claim need not have ever been addressed, meaning the second condition for As outlined in the per curiam opinion, abstention was satisfied. Pullman abstention may be appropriate when

- 31 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Finally, on the third condition, and despite voting rights cases ―because of the importance plaintiffs' arguments that their state-law claim of safeguarding the right to vote.‖ Cano v. was a sure winner, there was genuine Davis, 191 F.Supp.2d 1140, 1142 uncertainty about the meaning of the Arizona (C.D.Cal.2002). But even in a voting rights case, constitutional provision regarding equal the Ninth Circuit affirmed a decision to abstain population. Plaintiffs believed ―the Arizona when the abstention order was issued only six Constitution's equal population clause is plain‖ months before a relevant voting deadline. and it required absolute equality of population. Badham v. U.S. Dist. Court, 721 F.2d 1170, While defendants disagreed with plaintiffs' 1174 (9th Cir.1983). In doing so, the court noted reading, they conceded there was some the focus should be on the risk that delay would uncertainty about the meaning of Arizona's harm the right to vote. Because, in that case, equal population requirement. That concession there was no substantial risk of harm to that was wise given the language of the Arizona right, abstention was appropriate. Id. Constitution coupled with the Arizona Supreme Court's cryptic comments in a prior redistricting The per curiam opinion relies on the case. Ariz. Minority Coal. for Fair Redistricting possibility of undue delay as the primary basis v. Ariz. Indep. Redistricting Comm'n, 220 Ariz. for rejecting the abstention request. But at the 587, 208 P.3d 676, 686 (2009). And, in any time the motion was filed it was very unlikely event, the required amount of ―uncertainty‖ for plaintiffs' right to vote would have been Pullman purposes is not very difficult to show. impacted if they were sent to state court. The Commission represented that, upon arriving in ―Uncertainty for purposes of Pullman state court, it would stipulate to consolidating abstention means that a federal court cannot the preliminary injunction hearing with the trial. predict with any confidence how the state's It also agreed that the discovery performed in highest court would decide an issue of state federal court could be used in state court. The law.‖ Pearl Inv. Co. v. City and Cnty. of San first relevant deadline for the 2014 elections was Francisco, 774 F.2d 1460, 1465 (9th Cir.1985). April 28, 2014, the first day candidates could That uncertainty might be because of a statutory file their nomination petitions. Thus, when the ambiguity or ―because the question is novel and abstention motion was filed in December 2012, of sufficient importance that it ought to be sending the parties to state court would have addressed first by a state court.‖ Id. In my view, given the state court approximately fourteen we do not know how the Arizona courts would months to order relief before any possible harm interpret the state constitutional could be suffered. Given that length of time, the state courts would have had ample time to act.2 [993 F.Supp.2d 1082] In addition to concerns about the possible language. Accordingly, the third condition was delay should the parties be sent to state court, met. the per curiam opinion also seems to rely on the dismissal of plaintiffs' state-law claim as a Because the three Pullman conditions were special factor weighing against abstention. 3 But met, the question becomes whether some other the absence of a pending state-law claim should factor rendered abstention inappropriate. The have had no impact on the abstention inquiry. In Supreme Court has recognized that a court Harris County Commissioners Court v. Moore, deciding whether to abstain must be cognizant 420 U.S. 77, 81, 95 S.Ct. 870, 43 L.Ed.2d 32 that ―abstention operates to require piecemeal (1975), the Supreme Court found Pullman adjudication in many courts,‖ possibly ―delaying abstention appropriate even though the plaintiffs ultimate adjudication on the merits for an undue in that case ―did not expressly raise a state-law length of time.‖ Baggett v. Bullitt, 377 U.S. 360, claim in 378–79, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). And abstention is particularly troublesome in

- 32 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

[993 F.Supp.2d 1083] 430 (2001) (plan was drawn ―to protect incumbents—a legitimate political goal‖); id. at their complaint.‖ In Moore, there was an issue of 245, 121 S.Ct. 1452 (noting a legislature might state law lurking in the background of the draw lines to ―secure a safe Democratic seat‖). federal Equal Protection claim that, if decided a And while partisanship is not a terribly noble certain way, might have negated the factual means of establishing parameters impacting the premise for the federal claim. Id. at 85–88, 95 fundamental right to vote, it has long been a S.Ct. 870. There is no real dispute that, in this given, embedded in our system of government. case, resolution of the state-law claim raised by Thus, actual use of partisanship—or at least plaintiffs might have had a similar impact. allegations that partisanship drove redistricting decisions—are inevitable as long as partisan Finally, now that the first important entities are responsible for redistricting. election deadline is upon us, I recognize that the abstention calculus is significantly different. If Of course, Arizona has attempted to ― the motion were being decided today, abstention remove redistricting from the political process likely would not be appropriate because the state by extracting [the authority to conduct court would not have time to provide relief. redistricting] from the legislature and governor Thus, today I am comfortable reaching the and instead granting it to an independent merits of plaintiffs' claim. I note only that commission of balanced appointments.‖ Ariz. something is not quite right with plaintiffs Indep. Redistricting Comm'n v. Brewer, 229 choosing to litigate a very tenuous federal claim Ariz. 347, 275 P.3d 1267, 1273 (2012). But the when they have a state-law claim they believe is very structure of Arizona's reformed guaranteed to give them a victory. Therefore, redistricting process reflects that partisanship absent the looming election deadlines, I would still plays a prominent role. In practice, the still be inclined to send the parties to state court. Arizona Constitution requires two 4 commissioners be Republicans, two commissioners be Democrats, and the fifth 2. Partisanship Likely Not Cognizable Basis commissioner be for Suit [993 F.Supp.2d 1084] The per curiam opinion wisely refuses to decide whether minor population deviations, i.e. neither a Republican nor a Democrat.5 The fact deviations below ten-percent, motivated by that one's party affiliation is a qualifying partisanship offend the Equal Protection Clause. characteristic to serve as a commissioner is at I doubt they do. least an implicit acknowledgment that redistricting remains inextricably intertwined The redistricting process, with all its with partisan concerns. adversarial tensions, has always been recognized as a profoundly partisan process. Gaffney v. Recognizing that partisanship remains an Cummings, 412 U.S. 735, 753, 93 S.Ct. 2321, 37 inevitable ingredient in Arizona's redistricting L.Ed.2d 298 (1973) (―Politics and political scheme is not the same as saying redistricting considerations are inseparable from districting decisions actually based on partisanship are and apportionment.‖). The Supreme Court has immune from challenge. Under the federal repeatedly noted without condemnation that constitution, it may be possible to challenge entities responsible for redistricting often act in redistricting plans when partisan considerations explicitly partisan ways, such as drawing lines to go ―too far.‖ See Cox v. Larios, 542 U.S. 947, protect incumbents or drawing lines to ensure a 952, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004) particular district elects a Democratic (Scalia, J., dissenting) (noting most Justices representative. See, e.g., Easley v. Cromartie, believed partisanship ― is a traditional criterion, 532 U.S. 234, 248, 121 S.Ct. 1452, 149 L.Ed.2d and a constitutional one, so long as it does not

- 33 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) go too far‖). But it is presently obscure what inner-city Atlanta regions of the state to hold on ―too far‖ means. It is highly improbable that any to their legislative influence (at the expense of use of partisanship is ―too far.‖ However, maybe suburban Atlanta), even as the rate of population partisanship can be used to justify population growth in those areas was substantially lower deviations below ten-percent but not above ten- than that of other parts of the state.‖ Id. at 1342. percent. Or maybe it is unconstitutional to make And ―[s]econd, the deviations were created to decisions based on partisanship only if those protect incumbents in a wholly inconsistent and decisions have ―an actual discriminatory effect discriminatory way.‖ Id. In reaching these on‖ a particular political group. Cf. Davis v. conclusions, the Larios court stressed it was not Bandemer, 478 U.S. 109, 127, 106 S.Ct. 2797, required to ―resolve the issue of whether or 92 L.Ed.2d 85 (1986) (attempting to establish when partisan advantage alone may justify standard for ―political gerrymandering‖ claim). deviations in population, because ... The Supreme Court has not yet indicated which of these possibilities, if any, is correct. And the [993 F.Supp.2d 1085] one case plaintiffs repeatedly rely upon to support their theory cannot bear nearly the the redistricting plans [were] plainly unlawful‖ weight they wish. on other grounds. Id. at 1352.

Plaintiffs believe Larios v. Cox, 300 The Supreme Court summarily affirmed F.Supp.2d 1320 (N.D.Ga.2004) ―cast extreme Larios. Cox v. Larios, 542 U.S. 947, 124 S.Ct. doubt on whether partisanship alone ever could 2806, 159 L.Ed.2d 831 (2004). That summary justify deviations from population equality.‖ But affirmance meant the Supreme Court agreed a brief exploration of the facts, legal holdings, with the judgment ―but not necessarily the and subsequent history of Larios show plaintiffs' reasoning by which it was reached.‖ Mandel v. reliance is not well-placed. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (quotation omitted). In other In Larios, a three judge panel addressed the words, the summary affirmance ―should not be map drawn by the Democratic majority in the understood as breaking new ground but as Georgia General Assembly. After considering applying principles established by prior the evidence, the court clearly identified the decisions to the particular facts involved.‖ Id. Democrat legislators as having ―made no effort There are no prior decisions directly rejecting to make the districts as nearly of equal partisanship as a justification for minor population as was practicable.‖ Id. at 1341. population deviations, meaning the summary Instead, the Democrats had entered the affirmance has little value on that issue. But redistricting process under the assumption they Justice Scalia voted to set the case for argument, were free to manipulate the maps however they likely out of a concern the lower court decision wished, provided the final population deviations would be read as addressing the issue. As were kept below ten percent. With that explained by Justice Scalia, the Supreme Court assumption in mind, the final map contained has never made clear whether ―politics as usual‖ population deviations of 9.98%. Id. In addition, is a ― ‗traditional‘ redistricting criterion‖ that can the Democrats refused to allow Republican be used to justify minor population deviations. legislators meaningful involvement in the Larios, 542 U.S. at 952, 124 S.Ct. 2806 (J. process. Id. Scalia, dissenting). Justice Scalia also noted that, in a case the previous term, ―all but one of the The record made ―abundantly clear that the Justices agreed [partisanship] is a traditional population deviations in the Georgia House and criterion, and a constitutional one, so long as it Senate‖ were driven by two prohibited does not go too far.‖ Id. considerations. Id. at 1341. First, the deviations were a ―concerted effort to allow rural and With the lower court's explicit refusal to address the partisanship issue, and the Supreme

- 34 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Court's summary affirmance, I doubt Larios actual reason for the deviation.‘ ‖ The opinion offers any useful guidance on the question of we relied on, Rodriguez v. Pataki, further partisanship.6 Absent other instructive authority explains a plaintiff must show ―the deviation in supporting their claim, we might have been the plan results solely from the promotion of an better served by dismissing plaintiffs' federal unconstitutional or irrational state policy.‖ 308 claim for failure to state a claim on which relief F.Supp.2d 346, 365 (S.D.N.Y.2004) (quoting can be granted. See Cecere v. County of Nassau, Marylanders for Fair Representation, Inc. v. 274 F.Supp.2d 308, 313 (E.D.N.Y.2003) Schaefer, 849 F.Supp. 1022, 1032 (granting motion to dismiss because an (D.Md.1994)). Thus, from the very beginning of allegation of ―rank partisanship by the this case, plaintiffs were on notice—and they did Democratic majority ... is not violative of the not seem to dispute—that they needed to Fourteenth Amendment‖). But having allowed establish partisanship was the actual and sole plaintiffs to survive the motion to dismiss, we reason for the population deviations. must now reach the merits. Fortunately, we need not decide whether partisanship can be As the case developed, plaintiffs apparently considered in redistricting because, in fact, were enlightened and rethought their stance by partisanship was not behind the final map. beginning to describe the standard as requiring Unfortunately, reaching the merits required a they show ―no constitutional goal justified‖ the lengthy trial and a tremendous expenditure of population deviations. In connection with that resources. If plaintiffs' theory is viable, and softened burden, plaintiffs also, much to maps containing minor deviations can be defendants' frustration, began to substantively challenged as attempts to give one political party change their theory of the case such that an electoral advantage, the federal courts should partisanship was advanced merely as the prepare to be deluged with challenges to almost ―principal theory,‖ along with other prohibited every redistricting map. If that course is before characteristics such as race being implicated. us, a decision by the Supreme Court on whether But despite plaintiff's vacillations, I always this theory is viable, and if so when, would be understood their case as based on the allegation welcomed. that partisanship drove the entirety of the redistricting process.8 3. Standard Applicable to Plaintiffs' Claim By the time of trial, plaintiffs were again Assuming minor population deviations due describing their claim as grounded on a belief to partisanship present a cognizable Equal that partisanship was the ―sole‖ explanation for Protection claim, the question is what standard the population deviations. See Plaintiffs' applies to such a claim. I believe the correct Proposed Findings of Fact (Final Map was standard is that plaintiffs were required to prove created ―for the sole purpose of providing partisanship was the actual and sole reason for Democratic candidates with partisan the population deviations. advantage‖); Plaintiffs' Trial Brief (―The IRC systematically under-populated Republican In their initial filings, plaintiffs explicitly plurality districts and over-populated agreed they needed to show the ―sole reason‖ Democratic plurality districts for the sole behind the population deviations was purpose of providing Democratic candidates 7 partisanship. All three judges seemingly with a partisan advantage ....‖) (emphasis added). The Final Pretrial Order we approved [993 F.Supp.2d 1086] accepted this framing, describing the case as agreed because, in resolving the motion to requiring resolution of whether the population dismiss, we set forth the standard as requiring deviations were done ―for the sole purpose of plaintiffs ―prove that ‗the asserted partisanship.‖ I am not aware of any clear unconstitutional or irrational state policy is the request by plaintiffs that we adopt something

- 35 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) other than the ―actual and sole reason‖ standard. not believe plaintiffs carried their burden of And I believe there are compelling reasons for establishing that partisanship, rather than neutral retaining this very high standard on this type of redistricting criteria, motivated the Commission. claim. The final map comes to us with a Adopting a lower standard on this type of ―presumption of good faith.‖ Miller v. Johnson, claim invites individuals ―to challenge any 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d minimally deviant redistricting scheme based 762 (1995). It was never clear to me how upon scant evidence of ill will by district plaintiffs planned to overcome this presumption. planners, thereby creating costly trials and Plaintiffs made general allegations about a plan frustrating the purpose of [the Supreme Court's] to harm the interests of the Republican party but ‗ten percent rule.‘ ‖ Rodriguez, 308 F.Supp.2d at they never specified who was allegedly behind 365. Federal court challenges to redistricting the plan. 9 At various points during the litigation, plans are not only expensive and very time- it appeared plaintiffs believed the Commission's consuming, they are also ―a serious intrusion on counsel, the Commission's experts, the the most vital of local functions.‖ Miller v. Commission's mapping consultant, and even the Johnson, 515 U.S. 900, 915, 115 S.Ct. 2475, 132 Republican commissioners themselves, were all L.Ed.2d 762 (1995). motivated by the desire to systematically harm the Republican party's electoral chances.10 And Moreover, the bright-line standard of even having sat through the trial, it remains requiring plaintiffs establish the actual and sole unclear to me whether plaintiffs were trying to reason behind redistricting decisions is prove a knowing plot amongst all these actors or workable. Under this standard, a court need not coincidental uncoordinated acts of partisan engage in the formidable task of divining which discrimination that occurred merely by reason ―predominated‖ over the myriad of happenstance. But regardless of who plaintiffs possible reasons presented believed was responsible, I did not see sufficient evidence that anyone set out to harm the [993 F.Supp.2d 1087] Republicans. And certainly not enough evidence by those defending a new map. Instead, a court to establish the Commission as an entity did so. must simply determine whether the map was a. The Alleged Plot Failed drawn solely for an illegitimate reason. If other reasons were involved, that ends the case. Before directly addressing why I believe plaintiffs failed to prove their case, it is worth Plaintiffs repeatedly stated they would noting that the 2012 election using the new map establish partisanship as the actual and sole proved their theory has no basis in reality. In the reason for the population deviations and we 2012 elections, Republicans won 17 out of 30 adopted that as the standard plaintiffs needed to (56.6%) senate seats and 36 out of 60 (60%) meet. I believe that remains the appropriate house seats. As of June 2012, Republicans had a standard. statewide two party registration share of 54.4%. 4. No Evidence of Partisanship Thus, under the map plaintiffs believe was created to systematically harm Republican The history of the redistricting process, as electoral chances, Republicans are well as when and who ordered various map overrepresented in the legislature. In other changes, are documented in the record and not words, assuming the relevant actors drew the subject to dispute. Therefore, I join most of the map to harm the Republican party's electoral factual findings in the per curiam opinion. I chances, the evidence shows the actors failed to cannot, however, join those findings pointing to achieve their goal. Because this is not a political partisanship as motivating certain actions. I do gerrymandering case, these results are not

- 36 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) necessarily and more susceptible to challenge than an obvious and available alternative. [993 F.Supp.2d 1088] c. Insufficient Evidence of Partisanship fatal to plaintiffs' case. See Davis v. Bandemer, 478 U.S. 109, 127, 106 S.Ct. 2797, 92 L.Ed.2d Turning to the merits of plaintiffs' claim, 85 (1986) (political gerrymandering claim the evidence is overwhelming the final map was requires proof of ―actual discriminatory effect‖). a product of the commissioners's consideration But it is hard to take plaintiffs' challenge of appropriate redistricting criteria. In particular, seriously given that the alleged contrivance the commissioners were concerned with against Republicans failed. See Adam Raviv, obtaining preclearance on their first attempt.11 Unsafe Harbors: One Person, One Vote and Before this round of mapping, Arizona had Partisan Redistricting, 7 U. Pa. J. Const. L. never obtained preclearance on its first 1001, 1062 (2005) (―And certainly it makes legislative map. Therefore, the focus on first- sense not to overturn a plan that, whatever the attempt-preclearance was reasonable given that, intent of the planners, did not actually hurt their at that time, any failure to obtain preclearance on political opponents.‖). the first attempt would have meant Arizona could not ―bail out‖ of Section 5 of the Voting b. No Explanation for Choosing Harder Path Rights Act for another ten years. 42 U.S.C. § 1973b(a)(1)(E); Nw. Austin Mun. Util. Dist. No. Beyond having a theory not grounded in 1 v. Holder, 557 U.S. 193, 199, 129 S.Ct. 2504, actual harm to a particular political party, 174 L.Ed.2d 140 (2009) (explaining ―bail out‖ plaintiffs also failed to offer any coherent requirements). In these circumstances, the explanation why the Commission would have commissioners were not content to make simply chosen such an elaborate and difficult way to a plausible case for preclearance; rather, the advantage the Democratic party. That is, commissioners set out to make the absolute assuming everyone involved in the redistricting strongest possible showing for preclearance. process was driven solely by a desire to advantage Democrats over Republicans, they To present the best preclearance case had a much easier path available to them than possible, the Commission's counsel and engaging in the complicated task of minor consultants recommended ten minority ability- population deviations: the Commission could to-elect districts. The Commission agreed with have set up districts of equal population but that advice and the draft map contained ten drawn the district boundaries differently. See districts identified by the Commission as ability- Gaffney v. Cummings, 412 U.S. 735, 753, 93 to-elect districts. Plaintiffs presented no S.Ct. 2321, 37 L.Ed.2d 298 (1973) (―[I]t convincing evidence this advice was the result of requires no special genius to recognize the a conscious effort to harm Republicans. In fact, political consequences of drawing a district line it is along one street rather than another.‖). That would have resulted in far greater partisan [993 F.Supp.2d 1089] impact and the approach would have had the added benefit of being almost impossible to not even clear whether plaintiffs contend the challenge. See, e.g., League of United Latin Am. draft map was the result of partisanship. But if Citizens v. Perry, 548 U.S. 399, 126 S.Ct. 2594, partisanship actually were at the heart of the 165 L.Ed.2d 609 (2006) (rejecting political draft map, and assuming the Republican gerrymandering claim). It is not sensible to commissioners were not Democratic sleeper- conclude everyone involved in the process—or agents, one would expect the record to be replete at least whomever plaintiffs believe are with objections by the Republican responsible for the alleged discrimination— commissioners. It is not. I view the Republican decided to adopt a method that was less effective commissioners' silence as evidence that

- 37 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) partisanship was not the driving force behind the presented to conclude Commissioner McNulty draft map. was being untruthful in her trial testimony. More importantly, even if Commissioner McNulty did With no credible evidence the draft map make changes to District 8 with partisanship in was drawn to favor the Democratic party, the mind, that is not enough. focus turns to whether the changes to the draft map were motivated by partisanship or if they Evidence that one commissioner was can be explained on some other ground. Again, motivated by partisanship is only a good starting the vast majority of the changes to the draft map point and it is a given that four of the five were agreed to by the Republican commissioners always have at least some commissioners. And as observed by partisan self-interest. There must be evidence Commissioner Mathis, all of the commissioners that two other commissioners had that same are ―very strong people‖ who would have motivation. But the Supreme Court has spoken up if they had an objection. I do not cautioned that ―inquiry into legislative motive is believe we are in a better position to divine often an unsatisfactory venture‖ because ―[w]hat invidious discrimination than the partisan actors motivates one legislator to vote for a statute is actually involved in the process. not necessarily what motivates ... others to enact it.‖ Pac. Gas and Elec. Co. v. State Energy Res. Much more important than the relative lack Conservation, 461 U.S. 190, 216, 103 S.Ct. of objections is that plaintiffs did not identify, 1713, 75 L.Ed.2d 752 (1983). Thus, even if with reasonable particularity, the exact changes Commissioner McNulty was motivated by to the final map they believe were due solely to partisanship, plaintiffs would still need to show partisanship. Plaintiffs initially seemed to be two commissioners voted with Commissioner claiming every aspect of the final map was due McNulty ―at least in part ‗because of,‘ not to partisanship. However, at trial and in their merely ‗in spite of,‘ ‖ the alleged adverse effects post-trial briefing, they focused primarily on that particular change would have on three districts: Districts 8, 24, and 26. The per Republicans. Pers. Adm'r of Mass. v. Feeney, curiam opinion explains some of the changes to 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d Districts 24 and 26 and why the Commission 870 (1979). I saw no such evidence. believed compliance with the Voting Rights Act supported such changes. While plaintiffs [993 F.Supp.2d 1090] disagree with those actions, I did not see any evidence that partisanship, rather than In the end, Plaintiffs' evidence of compliance with the Voting Rights Act, was the partisanship consisted largely of pointing to the actual reason for the changes in Districts 24 and final map and asking the Court to conclude by 26. inference only that the pattern reflected in the map established an intent to discriminate against As for District 8, the per curiam opinion Republicans.12 This appears to be an attempt to concludes partisanship did motivate certain invoke the ―disparate impact‖ theory of liability. changes. At trial, however, Commissioner But only in exceptionally rare cases is disparate McNulty explained those changes were meant to impact enough to prove an Equal Protection make District 8 more competitive. I found her violation. See, e.g., Washington v. Davis, 426 explanation reasonable and credible. Also, when U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 asked squarely whether these particular changes (1976) (―Disproportionate impact is not were due to any reason other than irrelevant, but it is not the sole touchstone of competitiveness and compliance with the Voting [invidious discrimination] forbidden by the Rights Act, Commissioner McNulty said no. Constitution.‖). Those rare cases involve Again, I found her testimony credible. I would situations of a clear pattern unexplainable on any require much more evidence than what plaintiffs legitimate grounds. See, e.g., Vill. of Arlington

- 38 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Heights v. Metro. Hous. Corp., 429 U.S. 252, Partisan advantage is not itself a 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) justification for systematic population inequality (―Sometimes a clear pattern, unexplainable on in districting. No authority says it is, and neither grounds other than race, emerges from the does the Commission or any judge effect of the state action ....‖) (emphasis added). Here, the final map's population deviations can [993 F.Supp.2d 1091] be explained on grounds other than partisanship. of this Court. So the Commission must point to The final map represents an attempt to something else to justify its deviation. Without satisfy legitimate redistricting criteria, especially something else, there is nothing to weigh against the Voting Rights Act. As observed in the per the force of equality, and this inequality must curiam opinion, ―changes that strengthened fall under constitutional doctrine settled for half minority ability-to-elect districts were also a century. changes that improved the prospects for electing Democratic candidates.‖ In other words, the The Commission contends the systematic changes the Commission made to strengthen its population deviation for Democratic Party case for complying with the Voting Rights Act benefit was permissible to increase the also had the effect of improving Democratic likelihood of obtaining preclearance required by prospects. In light of this, the alleged pattern in Section 5 of the Voting Rights Act. So this case the final map easily is explainable on grounds turns on whether systematic population other than partisanship. inequality is a lawful and reasonable means of pursuing preclearance. I join the judgment against plaintiffs. But after the trial, the United States NEIL V. WAKE, District Judge, concurring Supreme Court held Section 5 preclearance in part, dissenting in part, and dissenting unenforceable, extinguishing that sole basis for from the judgment: this deviation. We must apply current law in pending cases, especially cases to authorize In this action voters challenge the final map future conduct. So even if Section 5 saved the of Arizona legislative districts approved by the inequality when adopted, it cannot save the Independent Redistricting Commission on inequality for future elections. The Court January 17, 2012. They allege that the districts exceeds its power in reanimating Section 5 to violate the one person, one vote requirement of deny the Plaintiffs equal voting rights for the the Equal Protection Clause of the Fourteenth remaining election cycles of this decade. Amendment to the United States Constitution by systematically overpopulating Republican If we do look back at Section 5, it never plurality districts and underpopulating had the force the Commission hopes. The Court Democratic plurality districts with no lawful further errs when it holds, for the first time justification for deviating from numerical anywhere, that systematic population inequality equality. Arizona's final legislative district map is a reasonable means of pursuing Voting Rights violates the Equal Protection Clause unless the Act preclearance. That is contrary to the text, divergence from equal population is ―based on purpose, case law, and constitutional basis for legitimate considerations incident to the Section 5 preclearance. Until struck down, effectuation of a rational state policy,‖ Reynolds Voting Rights Act preclearance was a legitimate v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 12 and mandatory purpose in redistricting for L.Ed.2d 506 (1964), ―that are free from any taint covered jurisdictions. But its legitimacy in of arbitrariness or discrimination.‖ Roman v. general has no connection to the principled bases Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 12 for compromising population equality. L.Ed.2d 620 (1964). Compliance with the Voting Rights Act requires line-drawing with an eye to expected voting

- 39 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) behavior, but only within equal population. accountable with limited grounds to deviate, it is Section 5 does not require or permit systematic now sometimes possible to prove that systematic inequality of population that would otherwise population inequality for party advantage has no violate the Equal Protection Clause. It does not other reason, or none that passes under equal authorize the federal executive branch to exact protection doctrine. such inequality for preclearance, a power the Attorney General disclaims. Nor does it license No better example could be found than this. redistricting authorities to volunteer inequality to Of 30 legislative districts, the 18 with population the Attorney General for which he never asks. deviation greater than ±2% from ideal The Commission's reliance on the Voting Rights population correlate perfectly with Democratic Act for systematic malapportionment is Party advantage. The Commission majority precluded by the plain language of Section 17 showed other partisan bias, but even without that nothing in the Act ―shall be construed to that, the statistics of their plan are conclusive. deny, impair, or otherwise adversely affect the Because this population deviation range of 8.8% right to vote of any person.‖ 42 U.S.C. § 1973n. is under 10%, the Plaintiffs have the burden of showing it is not ―incident to effectuation of a Judge Clifton correctly finds that the rational state policy.‖ The Commission offers no Commission was actually motivated by both justification except Voting Rights Act party advantage and hope for Voting Rights Act preclearance, which is insufficient as a matter of preclearance. So we have a majority for that law. The Commission knew the legal risk they finding of fact. And while that fact is obvious on were taking in grounding systematic numerical this record, the finding of partisan motive is not inequality on the Voting Rights Act. The needed to make the case. No precedent would circumstance that the Commission took that risk require proof and a finding of subjective purpose with advice of counsel does not make losing the of party advantage when it is already proven that gamble as good as winning, not when they are the systematic numerical inequality has no gambling with other people's rights. The justification that is legal and reasonable. It is Plaintiffs have carried their burden. This enough to strike down this systematic numerical dilution or inflation of all the votes in overpopulation of Republican plurality districts 60% of Arizona's legislative districts for nearly and underpopulation of Democratic plurality two million voters cannot be squared with our districts that neither the Commission's stated fundamental law of equal voting rights. reason to get preclearance nor its other actual motive of party advantage is a valid reason for The Commission has been coin-clipping the population inequality. So even if one could currency of our democracy—everyone's equal believe that the aggressive party advantage was vote—and giving all the shavings to one party, just a side effect and no part of the wellsprings for no valid reason. The novel and extraordinary of conduct, the Commission's only offered claim of Voting Rights Act license to dilute justification still falls. With no valid votes systematically and statewide should be counterweight, the population-skewed map falls rejected. That should decide this case and end to the force of equal voting rights under the our inquiry. This plan must be sent back and Constitution. done again.

When voting districts were set without I. THE ARIZONA REDISTRICTING standards and behind closed doors, true reasons PROCESS for systematic population deviation By an initiative measure in 2000, Arizona [993 F.Supp.2d 1092] voters removed legislative and congressional redistricting from the legislature and entrusted were easily disguised. But in states that have them to an Independent Redistricting made the redistricting process transparent and Commission under mandatory processes with

- 40 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) substantive standards. SeeAriz. Const. art. IV, responsibility for drawing the plan for legislative pt. 2, § 1. Four party commissioners are districts, five states required a backup appointed, one each by the highest-ranking commission to draw the plan if the legislature majority and minority members of the Senate failed to do so, two states had an advisory and the House of Representatives. They choose commission, and Iowa required nonpartisan an independent fifth member. All appointments legislative staff to develop maps without any are from 25 nominations made by another political data to be voted upon by the legislature. commission. National Conference of State Legislatures, Redistricting Commissions, http:// www. ncsl. The constitutional amendment requires the org/ research/ redistricting/ 2009– redistricting– Commission to follow a four-step process. Ariz. commission stable. aspx (last visited April 23, Minority Coal. for Fair Redistricting v. Ariz. 2014). Indep. Redistricting Comm'n, 220 Ariz. 587, 597, 208 P.3d 676, 686 (2009). First, the In Arizona, the Commission is required to Commission must create ―districts of equal comply with the state public meetings law and population in a grid-like pattern across the constitutional procedural and substantive state.‖ Ariz. Const. art. IV, pt. 2, § 1(14). requirements. Transcripts of their meetings are Second, the Commission must adjust the equally available to the public. The Commission's populated grid map ―as necessary to weighing of considerations, including the advice accommodate‖ compliance with the United they received from counsel and consultants, is States Constitution and the United States Voting laid bare for public and judicial scrutiny. The Rights Act and then to accommodate the voters ―imposed a specific process that the remaining five goals ―to the extent practicable‖: Commission must follow,‖ and judicial review (1) equal population; (2) geographically compact ―must include an inquiry into whether the and contiguous districts; (3) respect for Commission followed the mandated procedure.‖ communities of interest; (4) use of visible Ariz. Minority Coal. for Fair Redistricting, 220 geographic features, city, town, and county Ariz. at 596, 208 P.3d at 685. Limited boundaries, and undivided census tracts; and (5) substantive judicial review addresses only competitive districts, where such districts would whether ―the record demonstrates that the create no significant detriment to the other Commission took [the] goal[s] into account factors. Id. § 1(14)(A)-(F). Third, the during its deliberative process‖ and whether ―the Commission must advertise their adjusted draft plan lacks a reasonable basis.‖ Id. at 597–98, map for at least 30 days and consider public 600, 208 P.3d at 686–87, 689.

[993 F.Supp.2d 1093] On January 17, 2012, the Commission approved the 2012 final legislative map by a comments and recommendations made by the vote of three to two, the independent chair and Arizona legislature. Id. § 1(16). Lastly, the the two Democratic Party appointees against the Commission must establish final district two Republican Party appointees. In the prior boundaries and certify the new districts to the decade the first redistricting commission drew Arizona Secretary of State. Id. § 1(16)-(17). no district with a population deviation greater than ±2.42%, not for any reason, including Other states have also ―adopted standards Voting Rights Act preclearance, which was for redistricting, and measures designed to eventually received. In contrast, the 2012 map insulate the process from politics.‖ Vieth v. establishes 30 legislative districts with a Jubelirer, 541 U.S. 267, 277 n. 4, 124 S.Ct. maximum population deviation of 8.8%. Nine 1769, 158 L.Ed.2d 546 (2004) (identifying districts have populations that exceed the ideal Hawaii, Idaho, Iowa, Maine, Montana, New population by more than 2%. All of those Jersey, and Washington). In 2009, 13 states gave districts have more registered Republicans than a redistricting commission primary

- 41 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) registered Democrats. Nine other districts are right to vote touches a sensitive and important underpopulated by more than 2%. All of those area of human rights: districts have more registered Democrats than registered Republicans. Therefore, of the 18 Undoubtedly, the right of suffrage is a districts that deviate more than ±2% from ideal fundamental matter in a free and democratic population, all are underpopulated Democratic- society. Especially since the right to exercise the leaning districts or overpopulated Republican- franchise in a free and unimpaired manner is leaning districts. Here is the array of districts preservative of other basic civil and political from most underpopulated to most rights, any alleged infringement of the right of overpopulated, showing predominant party citizens to vote must be carefully and registration: meticulously scrutinized.

[993 F.Supp.2d 1096] IMAGE Id. at 561–62, 84 S.Ct. 1362. ―Overweighting [993 F.Supp.2d 1094] and overvaluation of the votes of those living here has the certain effect of dilution and (Trial Ex. 40.) undervaluation of the votes of those living there.‖ Id. at 563, 84 S.Ct. 1362. ―Diluting the Districts 7, 4, 27, 3, 2, 24, 19, 30, and 8 are weight of votes because of place of residence all underpopulated by more than 2% and contain impairs basic constitutional rights under the more registered Democrats than Republicans Fourteenth Amendment just as much as (Democratic registration plurality). Districts 14, invidious discriminations based upon factors 20, 18, 28, 5, 16, 25, 17, and 12 are all such as race or economic status.‖ Id. at 566, 84 overpopulated by more than 2% and contain S.Ct. 1362 (citations omitted). A person's place more registered Republicans than Democrats of residence ―is not a legitimate reason for (Republican registration plurality). The overweighting or diluting the efficacy of his following table isolates the 18 districts with vote.‖ Id. at 567, 84 S.Ct. 1362. population deviations exceeding 2%.

IMAGE Each state is required to ―make an honest and good faith effort to construct districts, in [993 F.Supp.2d 1095] both houses of its legislature, as nearly of equal population as is practicable.‖ Id. at 577, 84 S.Ct. (Doc. 35–1 at 101.) 1362. Although ―it is a practical impossibility to arrange legislative districts so that each one has II. PARTISAN ADVANTAGE ALONE an identical number of residents, or citizens, or DOES NOT JUSTIFY SYSTEMATIC voters,‖ divergences from a strict population UNEQUAL POPULATIONA. Unequal standard must be ―based on legitimate Population Under the Equal Protection considerations incident to the effectuation of a Clause rational state policy.‖ Id. at 577, 579, 84 S.Ct. 1362. To satisfy the Equal Protection Clause, The Equal Protection Clause of the legislative apportionment must result from Fourteenth Amendment ―guarantees the ―faithful adherence to a plan of population-based opportunity for equal participation by all voters representation, with such minor deviations only in the election of state legislators.‖ Reynolds v. as may occur in recognizing certain factors that Sims, 377 U.S. 533, 566, 84 S.Ct. 1362, 12 are free from any taint of arbitrariness or L.Ed.2d 506 (1964). The right to vote is discrimination.‖ Roman v. Sincock, 377 U.S. personal, and impairment of the constitutional 695, 710, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964).

- 42 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Deviation even for a permitted purpose is B. Partisan Advantage discriminatory and unconstitutional if applied only where it benefits one party. Larios v. Cox, The Supreme Court has not decided 305 F.Supp.2d 1335, 1339 (N.D.Ga.2004) (three whether partisan advantage itself is a judge court) (deviation to protect incumbents, permissible reason for population inequality, but only Democrats), aff'd,542 U.S. 947, 124 that is, whether it carries any weight or no 2 S.Ct. 2806, 159 L.Ed.2d 831 (2004). weight against equality in the analysis. See, e.g., Cox v. Larios, 542 U.S. 947, 951, 124 S.Ct. Because some legitimate districting goals 2806, 159 L.Ed.2d 831 (2004) (Scalia, J., compete with numerical equality, states may dissenting from summary affirmance) (―No weigh them against each other up to a point. party here contends that ... this Court has There is a burden-shifting framework for addressed the question‖ of whether a population deviation claims. Generally, a redistricting plan with less than 10% population legislative apportionment plan with a maximum deviation may be invalidated on the basis of population deviation greater than 10% creates a evidence of partisan political motivation.); prima facie case of discrimination and therefore League of United Latin Am. Citizens v. Perry, must be justified by the state.1Brown v. 548 U.S. 399, 423, 126 S.Ct. 2594, 165 L.Ed.2d Thomson, 462 U.S. 835, 842–43, 103 S.Ct. 609 (2006) (―Even in addressing political 2690, 77 L.Ed.2d 214 (1983). The plan may motivation as a justification for an equal- include ―minor deviations,‖ which is a technical population violation ... Larios does not give term meaning less than 10%, free from clear guidance.‖). arbitrariness or discrimination. But there is no safe harbor for population deviations of less than The Supreme Court precedents discussed 10%. There is a rebuttable presumption that a above readily yield the conclusion that partisan population deviation less than 10% is the result advantage is not itself a legitimate, reasonable, of an ―honest and good faith effort to construct and non-discriminatory purpose for systematic districts ... as nearly of equal population as is population deviation. Again, the Commission practicable.‖ Daly v. Hunt, 93 F.3d 1212, 1220 does not argue that it is. General principles of (4th Cir.1996) (quoting Reynolds, 377 U.S. at voting rights capture the issue, and there is no 577, 84 S.Ct. 1362). The burden shifts to the contrary gravitational pull from any competing plaintiff to prove that the apportionment was ―an constitutional principle. Party discrimination in arbitrary or discriminatory policy.‖ Larios, 305 population punishes or favors people on account F.Supp.2d at 1338–39 (citing Roman, 377 U.S. of their political views. It is discriminatory and at 710, 84 S.Ct. 1449); Daly, 93 F.3d at 1220. invidious. It serves an unfair purpose at the price of a constitutional right that all voters have, In sum, arbitrariness and discrimination regardless of how they plan to vote. disqualify even ―minor‖ population inequality within 10%. The flexibility accorded to Bare party advantage in systematic population deviation carries no weight against [993 F.Supp.2d 1097] the baseline constitutional imperative of equality of population. Under settled constitutional states for those minor deviations, without the analysis, unless the Commission has some other initial burden of justifying them, accommodates legitimate, actual, and honest reason for the legitimate interests that are reasonably served by inequality, the force of equality must win out. some population inequality. But it is tautologically true that legitimate state goals that Federal law would have this force even if harmonize with population equality can carry no state law purported to legitimate population weight against the constitutional value of deviation for partisan advantage. Imagine a state equality. Those goals legitimately may be statute that required Democratic-leaning districts pursued, but not by population inequality. to be overpopulated up to +5% and Republican-

- 43 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) leaning districts to be underpopulated down to – is valid. 5%. Such a statute would add no weight to the weightless purpose of party advantage and could To be sure, when political actors are not change the federal equal protection balance charged with applying even neutral criteria of from what it would be without the statute. districting, they will know and enjoy the Arizona law makes our task even easier by political benefits of using that wide discretion excluding partisan advantage as a purpose for one way and not another. Political motivations unequal population or anything else in will remain, resulting in population inequality redistricting. The Arizona Constitution twice here and there in innumerable line-drawing mandates equal population, subject only to choices that are overlain with defensible neutral adjustments for four other permitted goals and purposes even though they may not be the real compliance with federal law. Ariz. Const. art. purposes. Limitations of judicial competence IV, pt. 2, § 1(14). None of those permitted goals weigh against inquiry as extensive as that of the encompasses partisan political advantage. redistricting authority itself to find and remedy specific abuses of equality. C. Systematic Inequality of Population for Partisan Advantage Is Sometimes Provable But this case is not about a district here or and Is Subject to Judicially Manageable there that is out of balance for partisan benefit. Standards This is about systematic population inequality for party advantage that is not only provable but Systematic inequality of population for entirely obvious as a matter of statistics alone. A partisan advantage is sometimes provable bright line requirement of statistical proof, not just anecdotal evidence, is well within judicial [993 F.Supp.2d 1098] competence. By the expert evidence here, the neutral principles of districting are politically from the statistics alone and exclusion of other random, and it is statistically impossible for justifications. Where that demanding test is met, them to yield this perfect correlation of as it is here, the equal protection violation is population inequality with one party advantage proven and remediable. in 18 of 18 districts. But it does not take a Ph.D. Before the reform of redistricting to see this stark fact of intended party benefit. It procedures and substantive standards in Arizona would be reversible error to find the facts and other states, it was usually possible to mask otherwise, even if the Commission did not admit actual partisan purposes by overlaying some it was consciously drawing party advantage. As other arguable reason for the population thus narrowly defined, the test for proof of deviation. In the absence of state mandated intended systematic party advantage—statistical standards and transparent processes, any proof and exclusion of other justifying standard permissible under federal law could be reasons—will exclude all but the obvious cases, invoked after the fact and without regard to true easily proven, as this one is. The lowhanging motives. No doubt that will remain the case for fruit is within the reach of the Equal Protection specific instances of partisan population Clause even if the rest is not. Constitutional inequality. But Arizona now prohibits the doctrine must mark out systematic population secrecy of process and the indeterminacy of inequality, proven by statistics, as unreasonable, standards that previously put even systematic discriminatory, and actionable, provided no partisan deviation beyond judicial remedy other legal reason saves it. because of the inability to exclude other Limitations of judicial competence that explanations. In the states with redistricting weigh against remedy of partisan reform, it can sometimes be proven that partisan gerrymandering even within equal population advantage was a real and substantial cause of the are no barrier to proof or remedy for systematic deviation, with no additional reason, or none that

- 44 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) inequality of population for partisan advantage. L.Ed.2d 651 (2013). Section 4 suspended Line-drawing within equal population can be literacy, education, character, and reference done with an eye to expected voting behavior to qualifications to vote in certain jurisdictions as serve some legitimate purposes. Line-drawing defined in that section. 42 U.S.C. § 1973b. within equal population for unworthy purposes, Under Section 5, no change in voting standard, like party advantage, escapes judicial remedy for practice, or procedure could take effect in those lack of judicially manageable standards. Vieth v. jurisdictions without obtaining administrative Jubelirer, 541 U.S. 267, 281, 305, 124 S.Ct. ―preclearance‖ through the Attorney General or 1769, 158 L.Ed.2d 546 (2004). But the narrow a declaratory judgment from the United States and bright line test stated above for proving District Court for the District of Columbia that discrimination in numerical inequality has no the voting change comports with Section 5. such infirmity. The sound reasons for judicial Shelby Cnty., 133 S.Ct. at 2620. hesitation to remedy partisan gerrymandering Section 5 of the Act required States to [993 F.Supp.2d 1099] obtain federal permission before enacting any law related to voting—a drastic departure from within equal population do not fit the different basic principles of federalism. And § 4 of the wrong of systematic population inequality for Act applied that requirement only to some partisan advantage with no other justification. States—an equally dramatic departure from the principle that all States enjoy equal sovereignty. The systematic inequality for partisan This was strong medicine, but Congress purposes does not end the case if the inequality determined it was needed to address entrenched has other justification. Those unworthy partisan racism in voting, ―an insidious and pervasive motives should not trump parallel valid motives. evil which had been perpetuated in certain parts The equal protection analysis requires further of our country through unremitting and inquiry whether those other justifications are ingenious defiance of the Constitution.‖ South legally sufficient and actual, honest motives. Carolina v. Katzenbach, 383 U.S. 301, 309, 86 The Arizona Constitution's exclusion of all but a S.Ct. 803, 15 L.Ed.2d 769 (1966). As we few permitted reasons to deviate from equal explained in upholding the law, ―exceptional population leaves the Commission with only conditions can justify legislative measures not Section 5 preclearance to explain its pervasive otherwise appropriate.‖ Id. at 334, 86 S.Ct. 803. party preference. Reflecting the unprecedented nature of these The Commission has not made and cannot measures, they were scheduled to expire after make any general invocation of theoretically five years. valid reasons for the unequal population. There Id. at 2618. is only the Voting Rights Act, on which the case now hangs.

III. PRECLEARANCE UNDER THE This ―extraordinary measure‖ and ―strong VOTING RIGHTS ACT DOES NOT medicine‖ was an appropriate remedy for the REQUIRE OR PERMIT SYSTEMATIC century of racially discriminatory voting POPULATION INEQUALITYA. The Voting practices and procedures in the six states Rights Act and Section 5 Preclearance originally targeted for preclearance. Successful but time-consuming and costly litigation against The Voting Rights Act, enacted in 1965 to state and local practices was routinely evaded by enforce the Fifteenth Amendment, ―employed bad faith enactment of new discriminatory laws. extraordinary measures to address an The repetitive new laws blunted the extraordinary problem.‖ Shelby Cnty. v. Holder, Constitution's stated measure for protecting ––– U.S. ––––, 133 S.Ct. 2612, 2618, 186 federal rights—the Supremacy Clause and case-

- 45 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) by-case adjudication. That history justified accordance with current law. The Commission freezing voting practices in those jurisdictions, relied on maximizing Voting Rights Act Section absent advance determination that the changes 5 preclearance as a legitimate state interest to do not have the justify systematic partisan population deviation. Because of Shelby County, Section 5 [993 F.Supp.2d 1100] preclearance now cannot be applied in any jurisdiction because the formulas in Section 4 purpose or effect of denying or abridging the are unconstitutional. Thus, even if Section 5 right to vote on account of race or color. Id. at could justify population inequality before Shelby 2618–19, 2624. County, it cannot now. To allow the current map The 1975 amendment created new rights to govern successive election cycles until 2020 for four language minority groups in certain would give continuing force to Section 5 despite jurisdictions and extended Section 5 the unconstitutionality of applying it anywhere. preclearance to those jurisdictions, including ―When [the Supreme Court] applies a rule Arizona. The 1975 amendment also added the of federal law to the parties before it, that rule is Fourteenth Amendment as a basis for the Act. the controlling interpretation of federal law and Any voting change that had the purpose or must be given full retroactive effect in all cases effect of diminishing the ability of any citizens still open on direct review and as to all events, of the United States ―on account of race or color regardless of whether such events predate or or in contravention of the [language] postdate our announcement of the rule.‖ Harper guarantees‖ to elect their preferred candidates of v. Virginia Dep't of Taxation, 509 U.S. 86, 97, choice, i.e., ―retrogression,‖ would not receive 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). The preclearance. See42 U.S.C. § 1973c(b). circumstance that Arizona could and did comply Retrogression requires a comparison of a with the law at the time—seeking and getting jurisdiction's new voting plan with its existing preclearance—does not release it from the rule plan; the existing plan is the benchmark against of law that governs everyone else for future which the effect of voting changes is measured. events. If it did, retroactivity would rarely apply. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, In some circumstances, however, ―a well- 478, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997). established general legal rule that trumps the Notwithstanding ―the unprecedented nature new rule of law, which general rule reflects both of these measures,‖ originally intended for only reliance interests and other significant policy five years, they were extended repeatedly. justifications,‖ may prevent the new rule from Shelby Cnty., 133 S.Ct. at 2618. On June 25, applying retroactively. Reynoldsville Casket Co. 2013, after the trial in this case, the Supreme v. Hyde, 514 U.S. 749, 759, 115 S.Ct. 1745, 131 Court held Section 5's coverage formulas in L.Ed.2d 820 (1995). Reliance alone—even Section 4(b) no longer constitutional because reasonable reliance—is generally insufficient to they had lost rational connection to the avoid retroactivity. Id. at 758–59, 115 S.Ct. circumstances and criteria originally justifying 1745. For example, qualified immunity that extraordinary remedy. Id. at 2631. But sometimes shields state officers from personal Congress may restore Section 5 by giving liability under 42 U.S.C. § 1983 and other Section 4(b) a reasonable application. statutes based on the state of the law at the time of the B. This Case Must Be Decided in Accordance With Current Law, Under Which Section 5 Is [993 F.Supp.2d 1101] Now Unenforceable conduct, even if the law has changed by the time Pending civil cases must be decided in of the adjudication. This exception to retroactivity is animated by ―special federal

- 46 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) policy concerns related to the imposition of settled that the extraordinary remedy of damages liability upon persons holding public preclearance is not intrinsically unconstitutional office.‖ Id. at 758, 115 S.Ct. 1745. Those policy if extraordinary circumstances justify it. South concerns are not present here, where the Carolina v. Katzenbach, 383 U.S. 301, 334–35, Plaintiffs seek prevention of future government 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Because injuries rather than personal money damages for Shelby County made Section 5 inapplicable past harm. Qualified immunity has nothing to do everywhere by invalidating the coverage with injunction against violating federal rights in formulas in general, the Supreme Court did not the future, even newly announced rights that reach as-applied challenges to Section 5 for could not have been anticipated. specific jurisdictions, including Arizona.

There are no ―significant policy It does not distinguish the retroactivity justifications‖ or ―special circumstance [s],‖ id. doctrine to say that ―the preclearance process‖ at 759, 115 S.Ct. 1745, or other reasons to think was not invalidated though the coercion to do it ―the importance of the reliance interests that are was. Op. at 1075. Retroactivity does not make it disturbed‖ makes this an ―exceptional case [ ],‖ misconduct for a jurisdiction to have complied id. at 761, 115 S.Ct. 1745 (Kennedy, J., with Section 5, it just prevents that past conduct concurring), dispensing with the general rule of from reverberating into the future to the retroactivity. The party urging an exception to detriment of other people's rights as we now retroactivity bears the burden, and here the case know them to be. for retroactivity is easy. Applying Shelby County to this case cannot change the outcomes of Retroactively stripping the Voting Rights elections conducted under the current map. Act cover from the Commission's systematic Instead, the only things at stake are future partisan malapportionment, assuming it was elections. After Shelby County, Section 5 has cover before, would not mean all the 2010 maps ceased to be a valid justification for unequal done in covered jurisdictions ―are now invalid.‖ population, even if, by hypothesis, it was a valid Op. at 1076–77. Hopefully few or no other justification before. The Commission's jurisdictions conscripted Section 5 preclearance ―reliance‖ interest here is only the trivial one of to work statewide partisan malapportionment. not wanting to spend a few weeks finishing the But if any others did, their maps most assuredly job for which they volunteered. They can shave ―are now invalid‖ and need to be remedied. That their boundaries into equality for nothing does not cut against the general principle of compared to the years and millions they are retroactivity; it is the very reason for it. spending to resist doing so. If Shelby County is not applied, then Section 5 will continue to [993 F.Supp.2d 1102] dilute votes in Arizona for the next four election C. Voting Rights Act Preclearance Does Not cycles of this decade, in disregard of the law that and Could Not Authorize Systematic binds us and the rights of hundreds of thousands Population Inequality of voters. For this reason alone, the Commission must revise the current map. If we had power to give continuing effect to Section 5 in deciding this case, on the merits it is The Court would avoid these clear further error to give it effect that changes the principles by splitting fine hairs between being outcome of this case. Complying with Section 5 constitutional, but nowhere, and being and obtaining preclearance under the Voting unconstitutional anywhere. The Court bases the Rights Act was a legitimate objective in difference on invalidation of Section 4(b) redistricting; indeed, at the time it was coverage formulas in general rather than mandatory. But the legitimacy of the goal in invalidation of Section 5 as a substantive remedy general has no relation in logic or principle to for any particular jurisdiction. It has long been the validity of using population inequality to get

- 47 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) there. A state must ―show with some specificity that a particular objective required the specific deviations in its plan, rather than simply relying But there is no state policy in this case, on general assertions.‖ Karcher v. Daggett, 462 except ironically the equal population policy that U.S. 725, 741, 103 S.Ct. 2653, 77 L.Ed.2d 133 prohibits what the Commission has done unless (1983) (congressional districting). The reasoning federal law mandates it. There is only the state's from general validity of complying with the duty to federal law under the Supremacy Clause. Voting Rights Act to using systematic The Arizona Constitution restates what it need population inequality to do so is entirely not have said, that Arizona districting must circular. All Section 5 compliance must be by comply with federal law, including the Voting means that are legal under federal law, and there Rights Act. Arizona has made a firm policy is nothing but assertion behind the conclusion choice that does merit federal deference, but it is that the one person, one vote principle is the choice to forbid inequality except for four excepted from that. reasons not relevant in this case. If Arizona's restatement of its duty to federal law can be The Supreme Court has not directly called a state policy, it is a state policy that takes addressed whether systematic population its entire content from the substance of the inequality is a legal means of pursuing federal law and policy to which it yields. It has preclearance. But there is no basis in statutory no independence from federal policy that could text, administrative interpretation, or precedent change federal policy to accommodate it. to conclude that Congress purported to authorize state redistricting authorities or the federal So we must look to federal law to find what executive branch to systematically dilute obtaining preclearance requires, permits, and people's equal voting rights for any reason, least does not permit. The critical question then is of all as a protection of equal voting rights. whether Congress did and

1. At the highest level of generality and [993 F.Supp.2d 1103] within limits, the Constitution ―defers to state legislative policies, so long as they are could authorize systematic population inequality consistent with constitutional norms‖: to comply with Section 5 preclearance. This case does not turn on whether the Commission had a Any number of consistently applied bad motive of partisan preferment, though it did, legislative polices might justify some variance, or on which motive predominated, though the including, for instance, making districts preclearance motive fell short of covering all the compact, respecting municipal boundaries, depopulation here. It turns on whether the valid preserving the cores of prior districts, and motive of preclearance changes the equal avoiding contests between incumbent[s].... As protection calculus for using the means of long as the criteria are nondiscriminatory ... systematic population inequality to get there. these are all legitimate objectives that on a There is no independent state policy of proper showing could justify minor population preclearance malapportionment to defer to. deviations. The Commission and the Court would start Id. at 740, 103 S.Ct. 2653 (congressional and end with the fact that wanting to get Section districting). This deference respects the state's 5 preclearance is valid. But again, there must be autonomy of policies where they require ―some specificity that a particular objective accommodation from numerical equality, required the specific deviations in its plan, rather provided the other conditions are met of than simply relying on general assertions.‖ Id. at nondiscrimination, consistent application, and 741, 103 S.Ct. 2653. They would have federal consistency with constitutional norms. policy deferring to state policy, state policy deferring to federal policy, and the buck

- 48 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) stopping nowhere. We proceed to address Justice ever denying preclearance for lack of whether Section 5 preclearance authorizes population deviation or otherwise systematic population inequality. communicating that it would be required to obtain preclearance. If the Attorney General had 2. Nothing in the text of the Voting Rights ever done so, it is unbelievable that it would be Act purports to require or authorize population unknown in the intensely scrutinized world of inequality in legislative districting, directly or by Voting Rights Act compliance. The Commission implication. See42 U.S.C. § 1973c(a). Section does not contend the Attorney General ever did 17 of the Voting Rights Act forbids it in so. sweeping terms: 5. Nor does the Constitution grant Congress Nothing in subchapters I–A to I–C of this power to enact legislation requiring or chapter shall be construed to deny, impair, or permitting population inequality among voting otherwise adversely affect the right to vote of districts. The Fourteenth and Fifteenth any person registered to vote under the law of Amendments grant Congress power to enforce any State or political subdivision. by ―appropriate legislation,‖ which must be ―plainly adapted‖ to the end of enforcing equal 42 U.S.C. § 1973n. Distorting the weight of all protection of the laws or preventing abridgement the votes in 60% of the legislative districts in of the right to vote on account of race, Arizona would plainly ―impair, or otherwise adversely affect‖ half of the voters in those [993 F.Supp.2d 1104] districts. It is hard to think of more comprehensive language to exclude systematic consistent with ―the letter and spirit of the vote dilution as a required or permitted means to constitution.‖ Katzenbach v. Morgan, 384 U.S. comply with the Voting Rights Act. The Act 641, 650–51, 86 S.Ct. 1717, 16 L.Ed.2d 828 must be honored, but with the other available (1966). ―Undeniably the Constitution of the tools that do not steal from some voters to give United States protects the right of all qualified to others. citizens to vote, in state as well as federal elections.‖ Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The right to vote ―includes the right to have the vote 3. There is conclusive proof that Section 5 counted at full value without dilution or non-retrogression and preclearance yield to discount.‖ Id. at 555 n. 29, 84 S.Ct. 1362 population equality. We have in real life what (quoting with approval South v. Peters, 339 U.S. would be a perfect experiment if designed for a 276, 279, 70 S.Ct. 641, 94 L.Ed. 834 (1950) laboratory. In covered states, preclearance is (Douglas, J., dissenting)). Further, also required for congressional redistricting and is given despite near perfect equality of The conception of political equality from population in every instance. The Department of the Declaration of Independence to Lincoln's Justice knows how to accommodate Gettysburg Address, to the Fifteenth, nonretrogression goals for protected minorities Seventeenth, and Nineteenth Amendments can with population equality. mean only one thing—one person, one vote.

4. The blunt fact is that the Department of Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. Justice has never required unequal population 801, 9 L.Ed.2d 821 (1963). If Section 5 permits for preclearance in the 48 years of administering otherwise unconstitutional numerical vote Section 5. Although the Attorney General must dilution, it exceeds Congress's power to enforce state the reasons for interposing an objection, 28 the Fourteenth and Fifteenth Amendments' C.F.R. § 51.44(a), the Commission's expert commands of equal voting rights. witness had no knowledge of the Department of

- 49 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Revision of Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, 52 Congress's inability to mandate systematic Fed.Reg. 486, 488 (Jan. 6, 1987). The current population inequality would not invalidate every Guidance is to the same effect. 76 Fed.Reg. at preclearance effort with any population 7472. This concession to demographic change, deviation. That would not arise because other where it happens, is dictated by the text of legitimate purposes for deviation will always Section 5 itself, which does not forbid all come into play. This case is in court precisely retrogression in the minority's ―ability to elect because the extent of the their preferred candidates of choice‖ as some of preclearance/malapportionment deviation the Commissioners and their advisors outruns all others and must be defended on its unqualifiedly and repeatedly said. Rather, to own. deny preclearance the text also requires that the retrogression be ―on account of race or color or Statutory text, constitutional boundaries, in contravention of the [language] guarantees.‖ and a half-century of administration without The ―on account of‖ language was necessary to exception are all the same. They take all keep Section 5 validly within Congress's seriousness out of the Commission's wild enforcement power. But whether or not it is speculation that it can race to the bottom of constitutionally necessary, it is there. population inequality to get preclearance. Sources that lack the effect of law could not [993 F.Supp.2d 1105] count against this, but even those sources confirm this conclusion. Retrogression because of relative population changes is not on account of race or language. 6. In its Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, which explicitly ―is not legally binding,‖ the Department of Justice stated: 7. The Court puts some weight on an ―implication‖ in the Guidance that the Attorney Preventing retrogression under Section 5 General ―might‖ require ―slightly greater does not require jurisdictions to violate the one- population deviation‖ to avoid retrogression. Op. person, one-vote principle. at 1075. The Guidance notes that an alternative congressional plan with any increase in 76 Fed.Reg. 7470, 7472 (Feb. 9, 2011). The population deviation ―is not considered a Department has also acknowledged the obvious, reasonable alternative‖ to a submitted plan. The that compliance with constitutional equal Guidance continues: population requirements could result in unavoidable retrogression. Long ago the For state legislative and local redistricting, Department stated: a plan that would require significantly greater overall population deviations is not considered a reasonable alternative.

Similarly, in the redistricting context, there 76 Fed.Reg. at 7472. may be instances occasioned by demographic changes in which reductions of minority percentages in single-member districts are unavoidable, even though ―retrogressive,‖ i.e., From this statement that a ―significant‖ districts where compliance with the one person, additional deviation would not be required, the one vote standard necessitates the reduction of Court infers that a deviation that is not minority voting strength. ―significant‖ ―might‖ be required. Supposing that is persuasive, the ―slightly greater

- 50 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) population deviation‖ that is not ―significant‖ concerning voting rights‖ without demonstrating could not possibly support the Commission's that the meaning and effect of that federal law is stampede to the limits of population deviation. to permit systematic population inequality. Op. ―Significant‖ population deviation that ―is not at 1073. The Court circles its reasoning twice in considered a reasonable alternative‖ certainly finding the importance of preclearance in would include any deviation that would change a general comparable to that of some valid state plan from what is otherwise legal to otherwise purposes for deviation, but sliding past what illegal. That is the meaning of ―significant‖ in means are legal and what effect the Act has. It is usual legal discourse. no answer to say, ―The question is not whether the Voting Rights Act specifically authorizes The Court next equates ―not significant‖ population deviations....‖ Op. at 1074 (emphasis with ―minor population deviations,‖ the added). A statute does not have to ―specifically‖ technical term meaning below the 10% burden- prohibit something if it generally prohibits shifting boundary. Falling below 10% does not make population deviations constitutionally [993 F.Supp.2d 1106] insignificant. It just changes who has the burden of proof. it or it does not as a whole have the effect of legalizing what is otherwise illegal. 8. There is much confusion in this case over whether the Commission tried to make too many Federal equal protection doctrine is the Voting Rights Act districts. Federal law does not gatekeeper for what are permissible state limit a jurisdiction to creating only the number purposes for deviation. Those state purposes of such districts needed to avoid retrogression. A need not be codified in state statutes. But there is jurisdiction may seek a margin of safety or go no independent state purpose here, only respect entirely beyond the Voting Rights Act if it for federal law and the Supremacy Clause. This thinks it good policy and complies with state and is a case of first impression in another way, as it federal law. A court does not second guess how is the first time systematic malapportionment many such districts are needed or permitted has been defended from the effect of a federal because any number is permitted if legal means statute. The dispensing effect must come from are used to create them. But choosing to create that federal statute, expressly, generally, or by such districts gives no absolution to use any implication, or the defense fails. It has nothing districting practice that is otherwise illegal. No to do with whether truly independent state matter how many or few majority-minority, purposes are codified in statutes. minority-influence, or cross-over districts a jurisdiction tries to create, systematic population IV. MIXED VALID AND INVALID inequality is an illegal means to get there. PURPOSES

9. This part of the discussion returns to Because the majority finds the Voting where it began. The Commission's assertion that Rights Act a legitimate reason for population preclearance was a legitimate redistricting goal inequality, they must decide what to make of at the time is correct and undisputed. But that one permitted and one possibly forbidden proves nothing. What needs to be proved is that purpose. They propose different tests. For Judge systematic population inequality that is Clifton the case turns on which consideration otherwise irrational and discriminatory is a predominated. For Judge Silver the reasonable means to obtain preclearance, so as impermissible motive has no legal consequence to count against the baseline force of equality unless it was the only motive. Both tests are under the Equal Protection Clause. trying to grapple with the problems of not diminishing other actual and valid purposes and It begs the question to say population not yielding to theoretically valid purposes that inequality is ―compliance with a federal law are only pretext.

- 51 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

Both tests would need to be refined to Op. at 1078. To that end, the Court concludes work. Mixed motives often have no that the systematic population deviation was the predominance. Some motives are from different result of ―reasonable, good-faith efforts to domains and incapable of quantitative comply with the Voting Rights Act‖ and comparison. A test of predominance of motives is subjective and unreviewable. It disguises [993 F.Supp.2d 1107] judicial choice. Literally, a test of single motive can never be met, not in this kind of case, as that ―the Commission's attorneys gave covered jurisdictions must be motivated by reasonable advice as to how to pursue what they Section 5 compliance. identified as a legitimate objective, and the Commission appeared to act in accordance with There is a better statement of the test for that advice.‖ Op. at 1046, 1078–79. Counsel did cases of concurrent valid and invalid purposes. not give advice that underpopulation for The law should defer to state districting preclearance would thereby escape liability authorities' actual, substantial, and honest under the one person, one vote principle. If their pursuit of a legitimate means for a legitimate advice could be stretched to have said that, it purpose with systematic population inequality, would not be reasonable. notwithstanding the actual and additional motive of party preferment. But the valid motive must The Attorney General does not—and fairly cover the entirety of the otherwise indeed, under his statutory authority could not— wrongful inequality. Even a valid means may deny preclearance for any illegality except not pass from reasonable application to pretext Section 5 retrogression. The Guidance says: in any part. Here the Commission continued The Attorney General may not interpose an adjusting the map with an eye to depopulation objection to a redistricting plan on the grounds for party advantage even after the cover of the that it violates the one-person, one-vote Voting Rights Act played out. If the principle, on the grounds that it violates Shaw v. Commission's first acts of depopulation had the Reno, 509 U.S. 630 [113 S.Ct. 2816, 125 cover, the last acts did not. In light of the L.Ed.2d 511] (1983) [ (1993) ], or on the intervening invalidation of Section 5 grounds that it violates Section 2 of the Voting preclearance, if sent back for any reason to be Rights Act.... Therefore, jurisdictions should not redone in any part, the Commission could not do regard a determination of compliance with again what it did here. Section 5 as preventing subsequent legal The difficulty of forming and applying any challenges to that plan under other statutes by test for mixed motives shows why it should be the Department of Justice or by private left for a case in which it would matter. It is not plaintiffs. 42 U.S.C. § 1973c(a); 28 C.F.R. § needed to decide this case, where neither motive 51.49. justifies systematic partisan malapportionment. Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed.Reg. V. OTHER MATTERS 7470, 7470 (Feb. 9, 2011). In the teeth of this The other opinions run in directions that explicit disclaimer that the Attorney General cannot be responded to in every respect without does not examine inequality of population and prolonging this dissent. The matters already gives no protection against future challenge for addressed are enough to decide this case. Brief it, any advice that unequal population is additional comments follow. immunized from later challenge if it might help persuade the Attorney General to preclear would 1. The Court says that ―Counsel's advice be unreasonable. does not insulate the Commission from liability, but it is probative of the Commission's intent.‖

- 52 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

The Commission began with correct advice commissioners actually accepted the plan that any population deviation must be justified because they did not protest at every opportunity under federal constitutional standards and that throughout the meetings misses how people no legal precedent said Section 5 preclearance disagree in collective bodies if they hope for justified any inequality or how much. Their compromise later. Concurring Op. at 1088. counsel informed them the question lacked a reliable answer and whatever they did must 3. In the Final Pretrial Order the Plaintiffs survive scrutiny if scrutiny came. (Trial Ex. 361 stated ―unjustified population deviations in at 11–14; Trial Tr. at 826:6–15.) Later, the legislative districting for the sole purpose of advisors offered pragmatic license but never partisanship‖ as their claim, but they elaborated circled back to actual legal analysis from sources it and then summarized as follows: and reasoning. (Trial Ex. 395 at 114–16, 118– 20; Trial Ex. 405 at 10–11, 14–15, 19, 30, 32, Accordingly, Plaintiffs must prove (A) the 36, 50.) They gave bare conclusions, no legislative districts deviate from equality, (B) the principled exposition, and no written opinion. adjustments the Arizona Constitution authorized did not cause the deviations from strict equality, At best this was advice to take a legal risk, (C) deviations from equality are not the which lawyers often counsel when there is incidental result of adjustments made to attain possible benefit and no cost to their client from legitimate state interests, and (D) no legitimate being wrong. It could be taken as advice that the State interests justify or warrant the IRC's course of action complied with one person, one deviations from equality. vote principles only by not taking it as a whole, which would not be reasonable. Their Trial Brief said the same thing: ―Thus, Plaintiffs are bound to prove only that no 2. Both opinions contend that the legitimate and constitutional policy drove the Republican commissioners really approved the population deviations.‖ The Plaintiffs tried and partisan inequality in the final plan they voted proved that. This is the answer to the concurring against because they had voted for some earlier Judge's concern that she is ―not aware of any changes that moved in that direction. The Court clear request by plaintiffs that we adopt leaves out the facts that refute it. The Republican something other than the ‗actual and sole‘ reason commissioners explained their voting for standard.‖ Concurring Op. at 1086. It is in the iterations of the map. Commissioners Freeman quoted passages, and elsewhere. and Stertz objected to map changes that promoted Democratic Party advantage without justification. ( See, e.g., Trial Ex. 405 at 30:18– 4. I join in the sections of the Per Curiam 31:8; Trial Ex. 406 at 240:21.) The minutes from Opinion concerning dismissal of the individual the public hearings and the Republican commissioners, dismissal of the state law commissioners' trial testimony explain that claims, denial of abstention, and legislative Commissioner Stertz voted for the final tentative privilege. On the merits, the facts and findings in legislative map to stave off an attempt by this dissent are sufficient to dispose of this case. Commissioner Herrera to introduce a ―more Though I accept most of the factual narrative in extreme map‖ to favor Democratic Party the Opinion, I disagree with some, including interests that they thought was already prepared. some that matters under the Court's analysis. (Trial Tr. at 261:10–15, 877:17–879:8; Trial Ex. The facts that determine the outcome under the 406 at 266:14–267:3.) The inference that, analysis in this dissent are few, simple, and, I though voting believe, undisputed. Therefore, I join only in [993 F.Supp.2d 1108] sections III.A, B, and C of the Opinion. against the final plan, the Republican VI. PERSPECTIVE

- 53 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014)

This dissent applies voting rights equal 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004) protection doctrine as it has been settled for half (Stevens, J., concurring in summary affirmance). a century. Deference to reasonable state policies begins the analysis, but deference stops where Numeric equality yields to some other the state policy or its application is irrational or worthy goals, within limits. Arizona voters left discriminatory. Systematic numerical inequality little to weigh against equality, and none of what for partisan benefit is discriminatory and they did allow is invoked here except homage to invidious viewpoint punishment or reward. the Supremacy Clause. With that wedge the Commission pries pervasive party The first thing novel about this case is that, malapportionment back into Arizona, in the thanks to the reform of redistricting processes name of Congress and federal statute. It is a and standards in Arizona, state law itself now misplaced sense of federalism that stands aside excludes most of the traditional pretexts for while officers of a state that repudiated partisan partisan inequality. Of necessity, the malapportionment return to it on federal Commission summons up only the Voting command that Congress never gave. Rights Act as redeeming what is otherwise old- fashioned partisan malapportionment. VII. CONCLUSION

The second thing novel about this case is Based on these findings of fact and that, the Arizona voters having cast out that conclusions of law, I would enter judgment for grossest of redistricting abuses, a federal law is the Plaintiffs declaring that the Arizona now invoked to bless its return. No other Independent Redistricting Commission's instance is found in which Congress is said to legislative redistricting plan violates the Equal have ordered or permitted systematic population Protection Clause of the Fourteenth Amendment inequality that otherwise violates the Equal to the United States Constitution. I would enjoin Protection Clause. the Commission to promptly prepare and promulgate a plan that is free of that error. The third thing novel about this decision is the effect it has to give to the Voting Rights Act itself. Assuming we could give Section 5 ------preclearance continuing reach into the future, it would be extraordinary that Congress used a law Notes: protecting equality of voting rights to authorize 1. This per curiam opinion speaks for a systematic partisan malapportionment, even majority of the court in all but one respect. On defeating state law that prohibits it. the issue of the burden of proof that plaintiffs Systematic malapportionment is an affront must bear, there is not a majority opinion. See to the rights and dignity of the individual. the specific discussion on that subject below, at 1072–73 n. 10. [993 F.Supp.2d 1109] Judge Silver concurs in the result and joins The essential empowerments for that abuse are this opinion in all but three respects. One is the unaccountable discretion and ready pretexts to burden of proof requirement just mentioned. cover true motives. Population equality is the There is no majority conclusion on that subject. most objective limitation on abusable discretion, Her second difference is with the factual finding and it cannot be used unfairly against anyone. that partisanship played some part in the drafting ―[T]he equal-population principle remains the of the legislative district maps, primarily only clear limitation on improper districting discussed below in section II.I, at 1060–63, and practices, and we must be careful not to dilute its to some extent in section IV.C, at 1079–80. She strength.‖ Cox v. Larios, 542 U.S. 947, 949–50, finds that partisanship did not play a role. The

- 54 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) finding on that subject expressed in this opinion Supreme Court held unconstitutional the represents a majority consisting of Judge Clifton coverage formula used to determine which states and Judge Wake. The third disagreement, are subject to the Section 5 preclearance previously announced, was from the majority's requirement. See Shelby County v. Holder, ––– denial prior to trial of defendants' motion for U.S. ––––, 133 S.Ct. 2612, 186 L.Ed.2d 651 abstention under Railroad Commission of Texas (2013). We discuss the impact of Shelby County v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 on this case in our conclusions of law, at 1075– L.Ed. 971 (1941), discussed below in section 77. III.B, at 1066–69. That motion was denied by a majority consisting of Judge Clifton and Judge 6. In order to better understand the factual Wake. Judge Silver's separate views are findings that follow, some understanding of the expressed in a separate opinion, concurring in requirements of the Voting Rights Act is useful. part, dissenting in part, and concurring in the We include this discussion as background, judgment, filed together with this per curiam acknowledging that it incorporates conclusions opinion. of law, albeit for the most part conclusions that do not appear to us to be controversial.

7. As discussed below, at 1072–73 n. 10, we Judge Wake dissents from the result have not reached agreement on the legal reached in this opinion, though he joins portions standard to be applied. A majority of the court of it. In addition to the finding that partisanship has concluded that plaintiffs have failed to played some role, identified in the preceding demonstrate that illegitimate considerations paragraph, he specifically joins in section III of predominated over legitimate ones. Necessarily, this opinion, at 1063–71, discussing our therefore, plaintiffs have not proven that resolution of pretrial motions. His views are illegitimate considerations were the actual and expressed in his separate opinion, concurring in sole reasons for the population deviations. By part, dissenting in part, and dissenting from the either test adopted by the two judges that make judgment, also filed together with this opinion. up a majority of the court, plaintiffs have failed to carry their burden. 2. Arizona Secretary of State Ken Bennett, sued in his official capacity, is also a nominal 8. The portion of the complaint referenced defendant in the action. When we refer to during oral argument seeks fees ―against the IRC ―defendants‖ in this opinion, however, we refer only.‖ In light of this language, it is unclear why collectively to the Commission and plaintiffs believed they had requested fees from commissioners. the individual commissioners. 3. The Democratic candidate in District 8 9. This case commenced in April 2012. We won with 49 percent of the vote; the Republican set a schedule with the intent that our decision received 46 percent of the vote, and the would be filed in time for the 2014 election Libertarian candidate received the remaining 5 cycle, even leaving time for review by the percent. Republicans won both of the state house Supreme Court. That is why trial was scheduled races in District 8. and held in March 2013, even though the parties requested a later trial date. The subsequent filing 4. Van Jones served as a special advisor to by the Supreme Court in June 2013 of its President Obama in 2009. He resigned that decision in Shelby County v. Holder, ––– U.S. – position after criticism from conservatives and –––, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), Republicans. put that goal in jeopardy. The parties were 5. In a case decided after the implementation subsequently ordered to brief the impact of of the Commission's new redistricting plan, the Shelby County and, as illustrated by the dialogue

- 55 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) between this opinion and the dissenting opinion, criteria predominated over legitimate criteria it has taken us some time to determine that appears appropriate to him in light of the impact. When we denied the motion for deference courts afford states in constructing abstention, however, we did not know that their legislative districts and because multiple Shelby County was coming. The denial of the motives will frequently arise in any deliberative motion for abstention was based on our belief body. Cf. Miller v. Johnson, 515 U.S. 900, 915– that we would reach a conclusion in time for the 16, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) 2014 election cycle and that it would be highly (noting that courts must be ―sensitive to the unlikely that a similarly timely result could be complex interplay of forces that enter a achieved if we abstained in favor of state court legislature's redistricting calculus‖ and afford adjudication. states the ―discretion to exercise the political judgment necessary to balance competing We note that even with the unanticipated interests‖). delay to consider the impact of Shelby County, our decision is filed about twenty-four months after the commencement of this action, about on par with the twenty-two months that it took the Judge Wake, as discussed in his separate Arizona trial court to resolve the challenge to the opinion, at 1106–07, concludes that both the legislative redistricting maps drawn following ―only motive‖ and the ―predominant motive‖ the 2000 census. We remain of the view that standards are unsatisfactory. abstaining in favor of state court litigation, which would likely have entailed an appeal following a state trial court decision, would have For decision purposes, a majority of the taken even more time. panel, made up of Judge Clifton and Judge

10. Silver, have concluded that plaintiffs have not As expressed in her separate concurring demonstrated that partisanship predominated opinion, at 1085–87, Judge Silver concludes that over legitimate redistricting considerations, plaintiffs must show that the ―actual and sole applying the lower standard favored by Judge reason‖ for the challenged population deviation Clifton. Though Judge Silver concludes that the was improper. See Rodriguez v. Pataki, 308 standard should be higher, if the predominance F.Supp.2d 346, 366 (S.D.N.Y.2004) (holding standard is not met, the ―actual and sole reason‖ that plaintiffs must show that the ―deviation standard cannot be met. For discussion purposes, results solely from an unconstitutional or therefore, this per curiam opinion will speak in irrational state purpose‖ (emphasis added)). terms of the predominance standard.

Judge Clifton is not persuaded that the bar 11. Similarly, the dissenting opinion ought to be set that high. Some Supreme Court contends, at 1103, that the Department of Justice authority suggests that plaintiffs must show that ―has never required unequal population for illegitimate criteria at least predominated over preclearance in the 48 years of administering legitimate considerations. For example, while Section 5.‖ That assertion is not proven. More government programs that draw classifications importantly, it is an irrelevant straw man. For on the basis of race are typically subject to strict preclearance purposes, any variation in scrutiny, redistricting plans challenged for racial population is a means, not an end. There would gerrymandering are not subject to strict scrutiny never be reason for the Department to ―require[ ] ―if race-neutral, traditional districting unequal population.‖ That is not the considerations predominated over racial ones.‖ Department's goal. The question is whether a Bush v. Vera, 517 U.S. 952, 964, 116 S.Ct. state might improve its chances of obtaining 1941, 135 L.Ed.2d 248 (1996) (plurality preclearance by presenting a plan that includes opinion). Requiring a showing that illegitimate minor population variations. The evidence

- 56 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) presented to us supported that proposition, and Supreme Court was correctly denied. It would neither plaintiffs nor the dissenting opinion deny have been a futile gesture to certify the question that fact. because we could not have ordered relief on the basis of state law, regardless of how the Arizona 12. As noted above, the decision was Supreme Court might have ruled. See Citizens announced after the trial of this case. We for John W. Moore Party v. Bd. of Election ordered and obtained supplemental briefing from Comm'rs, 781 F.2d 581, 584–86 (1986) the parties on the impact of the decision on this (Easterbrook, J., dissenting) (noting that case. certification is not appropriate when the Eleventh Amendment means relief cannot be 1. As noted in the February 22, 2013 Order, granted on basis of state law). I disagreed with the resolution of the motion for protective order. The case has now proceeded to 5. The Arizona Constitution requires the trial and the commissioners testified at length. In twenty-five candidates for commissioner consist these circumstances, I do not believe it of ―ten nominees from each of the two largest necessary to set forth why I would have granted political parties in Arizona based on party the protective order in part. registration, and five who are not registered with either of the two largest political parties.‖ Ariz. 2. I recognize that redistricting cases pose a Const. art. IV, pt. 2, § 1(5). unique abstention problem. In the normal Pullman setting, the federal court stays the 6. In 2006, Justice Kennedy explained that federal claim and, if the parties are not able to the Larios district court opinion did not give obtain timely relief in state court, they can return ―clear guidance‖ on when partisanship can to federal court to litigate their federal claim. Cf. justify population deviations. League of United Harris Cnty. Comm'rs Court v. Moore, 420 U.S. Latin Am. Citizens v. Perry, 548 U.S. 399, 423, 77, 84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975) 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006).

(abstention not appropriate when litigation 7. already ―long delayed‖). But under Supreme Plaintiffs' filings could not have made it Court precedent applicable to redistricting suits, any clearer that they conceded the issue was if plaintiffs had been forced to file in state court, whether partisanship was the ―sole‖ cause for we would have been absolutely barred from the population deviations. See Plaintiffs' proceeding on the federal claim until the state Response in Opposition to Motion to Dismiss court litigation concluded. Growe v. Emison, (―[Defendants] diluted Plaintiffs' votes and the 507 U.S. 25, 33, 113 S.Ct. 1075, 122 L.Ed.2d votes of all citizens residing in the 388 (1993). Plaintiffs did not provide any overpopulated districts solely to maximize the persuasive reason why this complication would Democratic Party's representation in the matter because the state court would have had Legislature.‖). ample time to address the state-law claim before 8. As described on the last day of the trial, any harm was suffered. plaintiffs' theory was that ―this pattern of 3. The state-law claim was formally deviation was driven by partisanship.‖ dismissed at the same time the abstention motion 9. Plaintiffs also had difficulty identifying was denied. Thus, even if a pending state-law what would be a sufficient reason for the claim is a necessary prerequisite to abstention, it population deviations at issue. For example, was met at the relevant time. plaintiffs' complaint recognized ―compliance 4. Because the Eleventh Amendment barred with the Voting Rights Act‖ was a ―legitimate the state-law claim, plaintiffs' alternative request state interest.‖ to certify the state-law issue to the Arizona 10. Plaintiffs' expert also had significant

- 57 - Harris v. Ariz. Indep. Redistricting Comm'n, 993 F.Supp.2d 1042 (D. Ariz., 2014) difficulty deciding who was behind the plan to Dairy Lunchmen's Union, 694 F.2d 531, 553 harm Republicans. Originally, the expert stated (9th Cir.1982). In other words, a statistical ―the individuals who were drawing the maps for aberration negating chance is very different from the Commission were engaged in intentional a statistical aberration establishing invidious political gerrymandering.‖ (Trial Tr. 677). At intent. trial, the expert abandoned that position. (Trial 1. Tr. 677, 685). Later, the expert agreed that one In contrast, congressional districts must of the Republican commissioners had ―engaged be drawn with equal population ―as nearly as is in invidious discriminatory vote dilution‖ to practicable.‖ Tennant v. Jefferson Cnty. benefit the Democratic party. (Trial Tr. 719). Comm'n, ––– U.S. ––––, 133 S.Ct. 3, 5, 183 L.Ed.2d 660 (2012) (total population variance of 11. Plaintiffs' counsel conceded obtaining 0.79% was justified by the state's legitimate preclearance was a legitimate state interest. objectives). ―[T]he ‗as nearly as is practicable‘ standard does not require that congressional 12. Plaintiffs repeatedly claimed the partisan districts be drawn with ‗precise mathematical breakdown of the final population deviations equality,‘ but instead that the State justify could not be explained by chance. Of course, population differences between districts that there is no claim that the map was designed at could have been avoided by ‗a good-faith effort random, meaning the argument that the to achieve absolute equality.‘ ‖ Id. (quoting deviations could not have occurred by chance is Karcher v. Daggett, 462 U.S. 725, 730, 103 trivial. More importantly, plaintiffs fail to take S.Ct. 2653, 77 L.Ed.2d 133 (1983)). account of a basic problem always presented in cases where the court is asked to infer intent 2. Nor has the Supreme Court addressed based on statistics: ―statistics demonstrating that whether party advantage carries any weight chance is not the more likely explanation are not against equality in the federal constitutional by themselves sufficient to demonstrate that calculus if state law itself bars it, as Arizona [reliance on the prohibited characteristic] is the does. more likely explanation.‖ Gay v. Waiters' and

- 58 -