More than 30 people gathered in a modest room at the Woods Memorial Library in midtown Tucson on a work-night in October for a special meeting of the local chapter of the League of Women Voters.
Sitting in card table chairs arranged in a half-circle, they fixed their attention at the open end at the south-side of the room and, more specifically, on president Vivian Harte as she rattled through her 30-minute power-point presentation on the future of redistricting in Arizona.
Halfway through, she paused and addressed the non-partisan group.
“2020 is going to be very important,” Harte said, “for fairness.”
More than two months before the calendar flips, six months before counting for the next U.S. Census begins, and two years before the next round of redistricting, Arizona activists, academics and politicians are gearing up for one of the more important political stretches in the 48th state’s history.
And they’ve specifically turned their eyes toward the state’s Independent Redistricting Commission, established in 2000, which is in charge of drawing Arizona’s new congressional and state legislative maps every 10 years after each census. The next round is slated to wrap up in time for Arizonans to vote in a gubernatorial, senate and congressional election in 2022.
At stake is majority political control in a state that has begun tempering its status as a Republican stronghold, and is trending toward becoming more “purple” as state population booms.
Also at stake is another congressional district. While Arizona currently has nine, analysts have projected Arizona to be among the states to add another congressional district based on changes in population numbers gathered during the upcoming census.
The power to keep Arizona’s government representative of its constituents rests in the hands of the independent commission, and they’ve been commended for their work in the past, as a 2017 statistical analysis by the Associated Press found Arizona ranked among the best in the nation for minimizing the effect of gerrymandering on congressional districts in the 2016 election.”
But that doesn’t mean that political parties won’t stop trying to shift power their way when the commission starts drawing districts in 2021.
“The commission lessens the chances of partisan gerrymandering, although it does not eliminate the politics,” said University of Arizona professor Barbara Norrander, who teaches in the school of government and public policy.
Already, Democrats have accused Arizona Gov. Doug Ducey, a Republican, of stacking a state commission that whittles down the list of members eligible for the independent commission; there have been efforts by Republicans in the Arizona State Legislature to change the make-up of the independent commission; President Donald Trump, a Republican, had an attempt to curb census counts rejected based on constitutionality; and the Supreme Court eliminated a requirement that states, including Arizona, that have a history of racially discriminatory voting rules must get federal approval before making any tweaks to their maps.
With political games already underway and a ton at stake, groups like the League of Women Voters have started their public awareness campaigns.
They’re urging people to participate in the U.S. Census next year to get accurate population and demographics counts. They’re registering people to vote in the 2020 elections.
And they’re holding meetings like the one in October, where Harte was direct with the small, but impassioned crowd regarding redistricting.
“So there’s something going on right now …” she said.
A history of controversy
For most of Arizona’s 107-year history, the process of redistricting was handled by the state’s legislature, like it is in most states. But that’s mainly because Arizona’s measly population meant it only held one congressional seat until 1941. That rendered redistricting unnecessary.
Things started to change as midwesterners and north-easterners started moving west in the 1940s. With the population steadily increasing, Arizona added one congressional seat again after the 1960, 1970, 1980 and 1990 censuses, two after the 2000 census, and one after 2010.
And with that came the controversy, which has occurred in every single decade since.
“You’re never going to find a map that both the Democrats and the Republicans like,” said Norrander, the UArizona professor.
Along with co-author Jay Wendland, Norrander detailed those controversies as well as the history of redistricting in the state in the 2011 publication Reapportionment and Redistricting in the West. That’s summarized in the following few paragraphs.
At the state level, Arizona’s membership in the house was based on counties until 1964. All fourteen Arizona counties elected two people to serve on the state senate, while the house was based on population, with a total of 80 representatives, as of 1955.
The redistricting was done every four years by the counties’ boards of supervisors. Each county had one legislative seat with the remaining seats based on the number of votes cast in the last gubernatorial election. After Democrats and Republicans could not reach an agreement, today’s parameters were set in a federal court ruling in 1966, which set the number of legislative districts at 30. Each district would pick one senator and two representatives.
Around the same time, Arizona came under the watch of the federal government, which began requiring pre-clearance of maps by the Justice Department as a result of the 1975 amendments to the Voting Rights Act. Those changes protected minority groups, including Latinos and Native Americans. (Arizona’s maps were later initially rejected by the Justice Department in the 1980s, 1990s and 2000s.)
That political fight over the maps continued in each of the next three decades, starting with the 1970s, after the parties tried to set new maps after each decades’ census.
In 1971, both parties voted along lines to approve a new map, prompting Democrats to appeal to district court. Judges ruled the maps split the Navajo reservation into three legislative districts, divvying up the tribe’s representation. The court imposed an alternative plan placing the Navajo tribe into a single district.
In 1981, a plan approved by the majority Republican legislature was vetoed by the Democrat governor after opposers argued Tucson was split across districts, it was biased against Democrats, and Native Americans representation was diluted. Republicans overrided the veto, and it went to federal court, which ruled that it failed to adhere to justice department pre-clearance. A modified map was accepted.
In 1992, Republicans and Democrats could not agree on a map, prompting a group to file a lawsuit asking for court intervention. A lengthy court battle lasted for two years, until a third plan was approved by both the justice department and political parties in time for the 1994 election.
What happens during the next round of redistricting could hinge on the 10th congressional seat. Norrander said in the past that any additional seats are placed “where the population is growing the fastest.”
Recent population estimates found Arizona has broken the 7 million mark, up from 6,392,017 during the 2010 U.S. Census and fourteenth most in the country. That puts the Copper State slightly behind the population of Washington, which has 10 congressional seats. The biggest gains over the last decade were in Maricopa, Pima, Pinal and Yavapai counties.
Norrander said the new districts typically get placed in the areas that saw the biggest gains in population.
“So I don’t know if it’s anything in terms of hugely consequential,” she said of 2020. “It’s sort of what happens by just logical conclusions. … They are constrained in some ways of how they create those districts.”
She added that the consequences are “less of a concern” because of the redistricting commission.
“One of the purposes of the commission was to eliminate that,” she said. “They might not eliminate entirely, but they can make it less likely.”
Pioneers of fair redistricting
As a life-long Arizonan, Jim Pederson had grown tired of his state’s politics. He’d seen the ups, the downs, the curves, but what frustrated him the most was the constant one-party rule.
So in the late 1990s, Pederson, a developer who until then was best known for bringing In-n-Out to Arizona, hatched an idea. He got together with a group of other non-partisan voters, and they decided to try and take the politics out of redistricting.
That led to the creation of Proposition 106.
Amid the political squabbling and rapid growth, some Arizonans became concerned over the fairness of the districts, some of which split cities in half or spanned hundreds of miles across the state.
They also became concerned over the lack of competitiveness in Arizona elections. An Arizona Republic analysis found that incumbents had won 92 percent of their reelection bids from 1992 until 2000.
Led by Pederson, and with the support of several organizations, including the League of Women Voters and Common Cause, the language of the proposition to officially create the Arizona Independent Redistricting Commission was crafted.
Voters passed the initiative with a healthy 12-point margin, creating the commission, one of the first of its kind across the country, of which now there are about 20.
“Redistricting is kind of an esoteric concept to a lot of people − they don’t know quite how it’s done or, or what goes into it. But we gave them the idea that it’s an opportunity to allow you to vote,” Pederson said. “People got that, and they said, ‘Yeah, that’s a fair way to do it together.’ And we won the fight by a pretty fair margin.”
The constitutional amendment also detailed the parameters of the members of the board, and the criteria the board would have to follow to both create and pass legislative and congressional maps.
The commission is made up of five members, but no more than two can come from the same party, with the two largest parties getting two members each. Participants are eligible to apply as long as they weren’t an elected or appointed political official within the previous three years.
The applicants are whittled down to 25 – 10 from each majority party and five who don’t belong to the two largest parties – by the commission on appellate court appointments, which is appointed by the governor to represent the state’s demographic makeup.
Appointments are drafted by the state legislature one-by-one, starting with the house majority leader, then the house minority leader, senate majority leader, and senate minority leader. The four selections then pick an independent candidate, who serves as the commission’s chair.
Once the commission starts meeting, it starts with a grid map of population blocks, and then draws the district based on the following criteria:
- Districts shall comply with the United States Constitution and the United States voting rights act;
- Congressional districts shall have equal population to the extent practicable, and state legislative districts shall have equal population to the extent practicable;
- Districts shall be geographically compact and contiguous to the extent practicable;
- District boundaries shall respect communities of interest to the extent practicable;
- To the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts;
- To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.
The committee leaves the draft open for public comment for 30 days before making adjustments and then submitting their maps for final approval. Their work is certified by the secretary of state.
Looking back more than two decades, Pederson said there are a couple changes he would have made – he would have made the commission larger, with more than 10 members, and would have potentially had the members chosen in a different way.
“It’s survived all kinds of legal challenges going all the way up to the national Supreme Court, so it’s something that is now pretty much bulletproof from a legal standpoint,” he said. “So I’m quite proud of that effort.”
An ‘amazing’ experience
Prior to joining the Arizona Independent Redistricting Commission, Pima County resident Colleen Coyle Mathis had never as much as volunteered for a political campaign. She threw her hat into the ring mainly because she was interested in voter engagement.
Mathis, an independent, was elected chair for the round of redistricting in the 2010s. That led to an experience she called “amazing” as she got to travel the state, meet former U.S. Supreme Court Justice Sandra Day O’Connor and to help draw the first congressional map ever to be pre-cleared by the Justice Department on the first try.
She also got swept up in one of the biggest politically charged stretches in Arizona in recent history.
“You know, it was obviously contentious at times, which I knew it would be, but not to the extent it got to, ultimately,” Mathis said.
Just months into her term, then Arizona Gov. Jan Brewer accused Mathis of “substantial neglect of duty” and “gross misconduct in office” and removed her from office. The determination was made on two grounds – that Mathis violated open meetings law, and after releasing the first draft of the map, she failed to accommodate the six goals required by the Arizona Constitution. It was also because she often sided with the two Democrats on the board.
Attorneys for Mathis and the commission brought suit to the state Supreme Court to reinstate Mathis. Sixteen days after she was removed, the Supreme Court, which included three Republicans, two of whom were appointed by Brewer, voted unanimously to reinstate Mathis back to her position.
“We really weren’t sure how that would go because, frankly, you know, you like to think that courts are not going to be political, but they’re made up of individuals, and everybody has a particular viewpoint in life,” Mathis said. “Fortunately they ruled unanimously. … I was very heartened by that.”
Mathis said she’s happy with the map that she and the other members of the commission drew. The nine-district congressional map included four safe Republican districts, two safe Democratic districts, and three competitive districts, she said.
“It’s a big balancing game trying to ensure that … you’re considering and weighing all the criteria and then drawing the lines according to those criteria,” she said.
Mathis’ removal was just one of six lawsuits that the commission faced during the last round of redistricting. They prevailed in all of them, according to Joe Kanefield, former co-counsel to the redistricting commission.
The first case came before the commissioners were even appointed. One applicant was accused of serving on a tribal supreme court, while another was accused of serving as on the irrigation court. The latter was a professor at ASU, and even though he was registered as an independent, was accused of being too left-leaning. The Arizona Supreme Court ended up ruling in favor of both of them, although neither was picked to the commission.
“I think, you know, maybe the mission was accomplished by casting a cloud over him,” Kanefield said.
The commission faced a second lawsuit around the time of Mathis’ removal, which accused the commission of violating open meetings laws. The suit was also unsuccessful, and after Mathis was reinstated, this cleared the way for the commission to finish its map.
The approval of the districts led to two lawsuits that would solidify the status of the redistricting commission both in Arizona and elsewhere that were decided recently, in 2015 and 2016.
In one case, Harris v. Arizona Independent Redistricting Commission, the commission was accused of violating the Fourteenth Amendment, which includes the one party, one vote principle. The complainant argued that the all the districts weren’t the same size.
The U.S. Supreme Court ruled that there is allowed to be a deviation in size, as long as it’s sufficiently small and there are rational reasons for it.
In the other case, the Arizona State Legislature challenged the constitutionality of the independent commission itself, arguing that the process for redistricting was grounded in the election clause of the constitution, which put it in the hands of the state legislature.
The U.S. Supreme Court ruled 5-4 in Arizona State Legislature v. Arizona Independent Redistricting Commission in favor of the commission, confirming its constitutionality − as well as the constitutionality of other state’s independent commissions.
“The reality was whatever the court decided was going to set precedent for every state,” Kanefield said.
The commission faced one final challenge to the maps from Vince Leach, a Republican state representative, who alleged that the commission violated procedure by starting with an unfair grid map, falsely advertising a draft of the map, and that consultants were illegally chosen. The commission prevailed again.
Kanefield said it’s “no secret” that the process has remained political.
“I mean, it’s not like it’s not supposed to say it’s political,” said Kanefield, who now works in the Arizona Attorney General’s Office. “Yes, it is political. Everybody acknowledges that it is a very partisan political process.”
A battle brewing in state congress
On the last day in April, five appointees to the Arizona Commission on Appellate Court Appointments were confirmed by republican senators. The quintet included three Republicans and two Independents. None were democrats.
The 15-person commission includes 5 attorney members who are chosen by the State Bar of Arizona and 10 non-attorney members who are appointed by the governor. They’re in charge of vetting candidates for the Arizona Court of Appeals and the Arizona Supreme Court, but, most importantly, the Independent Redistricting Commission.
The make-up of Ducey’s appointments frustrated several democrats, who cast the first blow in terms of fairness during the next round of redistricting. They accused Ducey of creating a commission that would end up drawing favorable districts for Republicans.
“This commission will be packed with Republicans because the independent nominees we’re considering today are anything but independent,” Sen. Juan Mendez, D-Tempe, said on the Senate floor, according to the Arizona Mirror.
“[T]he governor is unconstitutionally stacking the Appellate Commission with conservative and predominantly white male appointments so they will help create an IRC that will draw districts favorable to elect Republican politicians,” Sen. Martin Quezada, D-Glendale, said in a press release.
That came one year after Republicans in the state house passed a measure that would have put up to a vote an expansion of the independent redistricting commission, while also aiming to make the districts more fair but making them more equal in population. The bill was defeated in the state senate.
The Democrats pointed to the Arizona Constitution that states that the governor “shall endeavor to see that the commission reflects the diversity of Arizona’s population.” The law stipulates that a maximum of five non-attorney members and three attorney members can be from the same party.
The most-recent voting registration numbers show that the state is made up of roughly one-third each of Republicans, Democrats and Independents. None of Ducey’s appointments were Democrats.
Ducey spokesman Patrick Ptak did not respond to multiple emails and calls seeking comment, but he previously defended the governor’s nominations to the appellate commission to the Arizona Mirror, saying the administration “absolutely” takes diversity into account.
That will be critiqued when the terms of the three other non-attorney members end before the redistricting commission is appointed in 2021.
“As we consider appointments to fill other vacancies, we will continue to adhere to the principles outlined in the constitution with regards to diversity and party affiliation,” Ptak said, according to the Arizona Mirror.
Is the commission effective?
It remains to be seen what specific effect the commission has had on the competitiveness of the races. But Norrander, the UArizona professor, in her research found that the first commission had a minimal one.
She compared the last three elections of the first independent commission to the last three election cycles of the previous legislative redistricting maps.
More specifically, she evaluated four components of the U.S. House, and Arizona state house and senate elections: the percentage of races that were unopposed, the winning margin for races with two major-party candidates, the percent of races with a winning margin of 10 percentage points or less, and the majority party vote-seat bias.
She found that while they were slightly more competitive than average, they were still uncompetitive in terms of margin of victory.
With one more election left in 2020, the research can’t yet be duplicated for the second round of redistricting.
But others have looked at the effectiveness of independent redistricting on abating gerrymandering as time has passed.
The AP statistical analysis ranked Arizona as the fourth-lowest for the effect of gerrymandering on congressional districts in the 2016 election. It ultimately found that while Republicans won a majority, that fell in line with the outcome suggested by statewide vote totals as Republicans won just over 50% of the two-party vote total for Congress and five of Arizona’s nine congressional seats.
Meanwhile, the New York Times found that the 2001 and 2011 maps were among the most competitive in the nation based on election results. The maps produced elections with an average margin of victory that was roughly 28% lower than the United States as a whole. Additionally, two of Arizona’s nine districts were among 29 districts nationwide that had margins of victory under 5% in 2014.
For Norrander, she said she’s not trying to predict what may happen during the third round of independent redistricting in Arizona.
“I don’t know, they always they come up with different things,” she said.