Cross posted from Arizona Eagletarian.
On Blog for Arizona today, based on a new Florida Supreme Court ruling, AZBlueMeanie wrote a post making a case for an aggressive counterclaim to one or more of the (three) GOP lawsuits challenging legislative and congressional maps and the right of the Arizona Independent Redistricting Commission to conduct redistricting at all.
The Orlando Sentinel reports, Florida Supreme Court rules lawmakers can be forced to testify in redistricting court fight:
The Florida Supreme Court ruled Friday that state lawmakers can be forced to testify and turn over documents related to whether they intentionally redrew political maps for partisan gain last year.
... I [AZBlueMeanie] believe the Arizona Independent Redistricting Commission (AIRC) should have been aggressive and filed a counter-claim against the secretive GOP redistricting organization FAIR Trust and its lawyer/lobbyists who tried to influence the AIRC on behalf of the Arizona GOP delegation. It would have allowed for litigation discovery and testimony under oath from everyone involved in FAIR Trust, and it would have conflicted out the lawyer/lobbyists who are currently representing the GOP in the redistricting lawsuits before the courts.
AZBlueMeanie's counterclaim argument relates to whether the Florida ruling could set precedent so that Arizona state lawmakers could be forced to testify about the clandestine operation of UNfair Trust. If so, what might reasonably be characterized as conspiring to subvert the Arizona Constitution could be brought into the light. Given that the question of legislative privilege as it pertained to the redistricting commissioners was an open question during the Harris trial in March, the role of legislative leadership may well one day become subject to discovery.
The lawyer/lobbyists in particular are David Cantelme and Mike Liburdi. Forcing them to testify would have created a conflict of interest for both. Which then would have precluded them from filing the lawsuits on behalf of the Harris and Leach plaintiff groups. Cantelme served as lead counsel for plaintiffs in the Harris case, which is still awaiting a ruling from the three-judge federal district court panel. Harris challenged the legislative district map. Liburdi has served as counsel on both the Harris case and the Leach case. Leach challenges the congressional map on the basis of a list of various alleged procedural errors made by the AIRC.
Overall, anything that represents a feasible strategy to enhance the independence of the AIRC, or to insulate it from undue influence from unsavory characters appeals to me. I wonder, however, about potential issues such a counterclaim might raise (because we don't know who made up the membership of UNfair Trust). Not to mention that funding legal representation for such a counterclaim gets dicey.
Article 4 of the Arizona Constitution sets forth the law under which the AIRC was established and operates. We've known since February 2011 that the legislature would use pending appropriations for leverage in influencing commission conduct. My gut tells me the legislature would refuse to fund the agency to the degree it could be able to initiate a counterclaim. That would then give rise to a special action in the Arizona Supreme Court exploring whether AIRC authority to defend the maps includes defending the process proactively.
Legal theory ought to be explored for whether the Arizona Constitution can allow for such a counterclaim. Even though it may be too late to matter for the maps currently in effect, providing insight on how to preempt anyone from injecting similar interference into the 2021 cycle is very much still in play and most appropriate.
Surely Arizona must have scholars who can sort through this area of law to provide a road map for the next set of redistricting commissioners or advocacy groups such as the League of Women Voters or the Arizona Advocacy Network to defend the process and therefore the maps.
In the meantime, we must remain vigilant, on the lookout for whatever new ways the GOP will try to subvert the will of the people of Arizona. I'm confident they will be trying.