Arizona's Own Espresso Pundit

Myth Busters: IRC Edition

Governor Brewer created a firestorm last week when she demanded that  the Independent Redistricting Commission explain its actions.  Naturally, there was a lot of coverage this weekend and unfortunately, most of it was wrong. 

I recognize that this is a complex issue so I'm not ready to say that the media is intentionally creating a false narrative.  I think they have simply fallen for some mythology.  So let's debunk the four main myths.

Myth 1:  The Republicans are going to remove the commissioners because they don’t like the lines.

This myth is a Democratic Party talking point that is circulated by the media as a fact. 

KJZZ’s Dennis Lambert reported on the letter today and offered up this reason for her actions.   “The Governor, and many Republicans, claim the congressional lines drawn by the panel favor Democrats.”

 Here’s how Mike Sunnucks put it on Horizon last Friday: 

Violating the open meetings laws, picking a mapping firm that had ties to Obama and drawing lines that the Republicans don’t like.  That’s their dereliction of duty.

Those two explanations are just Democratic Party talking points.  To his credit, Horizon host Ted Simons tried to correct Mike Sunnucks, but didn’t quite get it right: 

Not necessarily, what she’s basically saying and what Republicans are saying is that the commission is not doing what it’s mandated to do and that is to look at all sorts of things, not just competitiveness.

Actually, the basis for the suit is that the Constitution prohibits the IRC from gerrymandering the districts—yet that’s exactly what the IRC did.  The Constitution requires the districts to be compact, respect communities of interest and respect natural boundaries.  Once these requirements are met, the IRC can make the districts competitive.  In this case, the IRC sacrificed those requirements in order to create competitive districts.  NO ONE denies that the districts are gerrymandered. This is a clear violation of the Constitutional requirements. 

Here's an appropriate way to frame the issue.  "Republicans claim that the IRC violated its constitutional mandate by gerrymandering the map so that the resulting districts are not compact, and do not respect communities of interest or natural boundaries.  Democrats for their part charge that the Republicans simply don't like the lines that the IRC has drawn.

 Myth 2:  Sure the Maps are gerrymandered, but that's just politics.

Since no one denies that IRC ignored the requirements and gerrymandered the maps, some members of the media have attempted another tactic:  That the maps are gerrymandered, but this isn’t reason to remove any commissioners.  Here’s the Republic’s Bob Robb:

 The congressional map is an ugly thing, and the treatment of Pinal County is indefensible. But bad map-drawing isn't neglect of duty or gross misconduct.

Really Bob?  The IRC has one responsibility…to draw maps in accordance with the Constitutional requirements.  There is universal agreement that the IRC failed that task--and did so intentionally.  How is that not a “substantial neglect of duty”? 

Here’s another example of the media conceeding that the IRC failed its fundamental task, yet chastising the Governor for doing something about it.

We don't like the map, either. It includes a contorted lobster-shaped district that starts in the northwest corner of Arizona and reaches a claw around to grab Fountain Hills. The draft needs radical reworking.

Yet, that same editorial prclaims that "Whatever the flaws in the process, nothing rises to the level of booting out commissioners."

Myth 3:  The voters took politicians out of the process, now the Governor and the Senate are trying to interfere.

Here’s an example from Dennis Welsh on Friday’s Horizon Journalist round table. 

This whole process was to take elected officials out of the whole thing, yet here we are with an elected official getting involved in this.

This assertion is just flat wrong.  The voters specifically charged the Governor and Senate with the obligation to police the IRC.  Here’s what the Constitution says: 

After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.

 Myth 4:  If the Republicans are unhappy, they should go to court.  

This myth is the converse of Myth 3.  Here's a funny example of the media pushing this myth.  I like this paragraph from Sunday’s Republic Editorial: 

If the final map appears to violate constitutional requirements, then there's the option of a lawsuit. Democrats sued, without success, over the maps produced in 2001.

The reason that I like the paragraph is that it’s self debunking.  Sure, you can sue, like the Democrats did—without success.  Why did the Democrat’s suit fail?  Because the court—unlike the newspaper—understands that the courts should be deferential when dealing with IRC decisions. 

The courts--to their credit--recognize that they have a limited role in policing the IRC.  That responsibility is given to the IRC itself and to the Governor with concurrence of two thirds of the Senate.  

That being said, however, the IRC’s maps ignore the constitutional requirements so blatantly that the courts would have to side with the Governor anyway. However, the key is that the Constitution gives the responsibility to police the IRC to the Governor and Senate and specifically NOT to the courts.  

So there’s the narrative:  The Republicans don’t like the maps so they are going to replace the Commissioners.  While the maps are ugly, fail to follow the constitutional requirements and are clearly gerrymandered, the IRC hasn’t actually neglected its duty.  So the Governor and Senate are inserting themselves into this process—despite the fact that the voters specifically removed them from redistricting, and if they had a legitimate case, they would take it to court.

Those myths must be true...after all, you've been reading them in the paper.

Snow Job

The mainstream media are so rabid in their hatred of Russell Pearce that they are blind to key stories.  I have yet to see an in depth profile of the people behind the recall and their possible motivation.  The media like to portray the recall organizers as ordinary citizens of Mesa who happen to be Republian and Mormon and are fed up with Russell Pearce. 

Does the media ever consider that these supporters might have other--less alturistic--motives?  Check out this page from recall organizer Chad Snow's website.  It seems that Mr. Snow makes a living catering to illegal alliens filing workers compensation claims. 

If you are an immigrant or undocumented worker who has been seriously injured while on the job, in Phoenix or throughout the state, you have a friend and champion in our Snow & Carpio, PLC, workers' compensation law firm.

We believe in justice for all injured Arizona workers. Our attorneys Chad Snow and Xavier Alexander Carpio have almost 20 years of experience getting results for injured workers of all backgrounds. Both partners and all staff are fluent in the Spanish language, so you will feel comfortable speaking with us about your case.

Remember: If you were injured at your job in Arizona, your immigration status is not a factor. You are as deserving of workers' compensation benefits as a worker who is a U.S. citizen. The Arizona Workers Compensation Act defines covered employees as "every person in the service of an employer ... including aliens legally or illegally permitted to work for hire ... " (A.R.S. 23-901(6)(b).

Corporate Media Hypocrisy

This column from New York Times Media correspondent David Carr  is getting a lot of attention and is a must read for those of you who still defend corporate media.

Almost two weeks ago, USA Today put its finger on why the Occupy Wall Street protests continued to gain traction.

“The bonus system has gone beyond a means of rewarding talent and is now Wall Street’s primary business,” the newspaper editorial stated, adding: “Institutions take huge gambles because the short-term returns are a rationale for their rich payouts. But even when the consequences of their risky behavior come back to haunt them, they still pay huge bonuses.”

Well thought and well put, but for one thing: If you were looking for bonus excess despite miserable operations, the best recent example I can think of is Gannett, which owns USA Today.

A Congress that's Powerful Enough to Provide Healthcare is Powerful Enough to Outlaw your Marijuana

In a great example of the left meeting the right, marijuana growers in San Fransisco are going to court in order to argue that the federal government has overstepped its authority based on 10th amendment grounds. 

Where have they been for the last 60 years of Commerce Clause cases?  Funny, I didn't see these guys arguing that Obama Care is a power grab.

I pointed out earlier this year that so called "medical" marijuana is illegal and that this new "industry" would be short lived.   I guess it's actually shorter lived than even I thought it would be. 

Open and Shut Case

It certainly appears that Governor Brewer is laying the ground work needed to remove the IRC Commissioners.

Gov. Jan Brewer on Wednesday gave the five members of the Arizona Independent Redistricting Commission a Monday deadline to respond to allegations that show "substantial neglect of duty and gross misconduct in office."

I had lunch today with a friend who asked if this was just an argument among lawyers, or if it was actually clear that the Commissioners had violated the Constitution.  It's a great question and the answer is that it's clear that the commissioners have engaged in substantial neglect of duty and gross misconduct in office.

Let's start with the open meeting violations. 

Capitol Times reporter Christian Palmer is the one who broke the story.

Prior to voting to award a lucrative contract to a mapping consultant on June 29, the Independent Redistricting Commission had spent as much time in closed door executive meetings as it had before the public.

In fact, the Commission spent 37 HOURS in executive session and when they finally came into the open, it's clear that they knew which company was going to win the mapping contract.  Tom Horne read the Capitol Times article and started an investigation.  The IRC then refused to cooperate with the investigation. Read the whole article.  There's no doubt that the IRC made its most controversial decision behind closed doors. 

Now let's move to the maps themselves.  Drawing the maps is the primary duty of the IRC and they have to follow very strict criteria.  They are not allowed to gerrymander the maps.  The districts have to be compact, respect communities of interest and natural boundaries.  Then the IRC can make the maps competitive if and only if they can do so without significant detriment to the other criteria. 

This means that it's ok to have maps that are compact and respect communities of interest and natural boundaries...but aren't competitive. 

But it's UNCONSTITUTIONAL to have maps that are competitive, but are not compact, respect communities of interest and natural boundaries. 

The Congressional maps fall into the second--clearly illegal--category.  The districts are blatantly and outrageously gerrymandered. 

In short, the IRC met illegally in order to hire a consulting firm that would illegally gerrymander the districts to favor Democrats. 

I have not heard one credible denial of the above allegations.  Those who wish to defend the IRC simply engage in name calling.  Here's a great example from a recent Democratic Party press release.

"The only reason 50/50 districts are a threat to Republican electoral prospects is because of the extreme, out-of-touch agenda that Arizona Republican leaders have been pursuing. Gov. Brewer should spend less time on bullying and more on job creation, and substitute real leadership for these partisan attacks. It is beneath the dignity of the governorship and not in keeping with the best interests of the state.”

That's not a defense, it's a rant.  The Dems argue that competitive districts are good and Gov. Brewer is bad.  Of course the Constitution says that you can't gerrymander the districts no matter how much you think they should be more competitive.  I have not seen one person who argues that the IRC actually followed the requirement. 

So the answer is clear the IRC Commissioners have engaged in "substantial neglect of duty and gross misconduct in office."

Governor Brewer and the Senators have a duty to remove them. 

Here's How the World Ends

For the last couple years, I've been warning that the US is in danger of financial collapse.  This article lays out the case pretty well.

Today the world’s public and private debt exceeds an incredible 300 percent of GDP. We are at risk of succumbing to an ugly, downward, global mark-to-market in asset prices. Yet the discussion in Washington fails to reflect the immensity of the threat.

Some money managers have a theory that this mark-to-market process has been under way for some time. Stage One was the 1990s Asian crisis. Global financial markets concluded that Asia’s debt was dangerously high and its banks’ balance sheets not reflective of reality. Global traders pounced. Interest rates soared, equity markets plummeted, banks failed, and currencies collapsed.

Stage Two is happening in Europe today.

Stage Three will eventually hit the United States.

Don't Complain About "Activist" Courts and then Ask Them to Do Your Job.

I've had a lot of feedback about my "Replace Them All" post.  No one seem able to deny that the IRC has gerrymandered the district maps.  And no one even attempts to claim that the maps comply with the Constitutional requirements.  So the best folks can do is claim that the Legislature and Governor should stay out of the process "like the voters intended."

However, the voters specifically put the Governor and Legislature INTO the process.  The Constitution says that it's the Governor and Senate that have the responsibility of removing Commissioners who substantially neglect their duty. 

The Courts, for their part, have been appropriately deferential to the IRC because the IRC acts in a Legislative capacity. 

So here's a message to my Conservative friends.  When the Constitution gives you a responsibility, don't punt it to the Courts...and if you do, don't complain that they don't bail you out...and don't ever complain about them being "activist" again.

If the Legislative Committee determines that the IRC members substantially neglected their duty (which they clearly did) then it is the Governor and the Senate who are tasked with fixing the problem.  So either fix it, or live with it.  But don't ask the courts to bail you out--after all, this is why you get the big bucks.

Classic Bias

Check out this sentence from a recent Associated Press report.

Pearce has been a supporter of so-called “school choice” measures at the Legislature.

Reporters use "so-called" when they don't like the title associated with a particular group.  Naturally this is only allowed when liberal reporters are critical of conservative groups.

Can you imagine what would happen if a conservative reporter wrote an article about Planned Parenthood contributing to a campaign and described Planned Parenthood as a group that supported...so-called "pro-choice" measures at the Legislature."

The conservative reporter would be unemployed pretty quickly. 

Atlas Shrugs

Ayn Rand's views were seen as preposterous when she wrote them, yet time has proven her vision to be spot on.  Check out this interview with Google executive Eric Schmidt:

"So we get hauled in front of the Congress for developing a product that's free, that serves a billion people. OK? I mean, I don't know how to say it any clearer," Mr. Schmidt told the Post. "It's not like we raised prices. We could lower prices from free to . . . lower than free? You see what I'm saying?"

An absence of consumer harm didn't stop senators from offering some improbable recommendations. Among them: that Google replace its algorithm with a panel of experts to ensure "fair" search results. As Google tries to improve the relevancy of its search results for consumers, some sites inevitably come up higher and some lower in the results. The losers now lobby Washington.

 

 

 

Replace Them All

It's time to face the facts:  By any objective standard, the Independent Redistricting Commission has completely botched the job.  Governor Brewer and the Senators should exercise their Constitutional duty and replace all of them.

Let's forget the blatant partisanship and open meeting violations and focus on one issue.   The fundamental job of the IRC is to draw districts that fulfil the requirements of the Constitution.  The proposed Congressional map clearly violates those requirements.  

I've printed the full text of the requirements below, but here's a summary.  The first two requirements are right out of federal law:  The Districts must comply with the US Constitution and voting rights act and have roughly equal population.  Then there are three requirements that were obviously written to prevent Gerrymandering: The Districts have to be geographically compact and contiguous; they have to respect communities of interest and they have to respect natural boundaries. 

Then there's a sixth requirement that uses different wording.  Here's the whole thing.

F. To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals. (Emphasis added).

Here's your statutory interpretation question...does the 6th requirement have the same status as the other five, or does it have a lower priority?  In the first version of this post, I argued that the 6th requirement was secondary.  I still believe that and the lower courts agreed with my interpretation, but (as the first comment to this post pointed out) the state Supreme Court doesn't like that term.  Here's what  the Supreme Court said:

The direction that competitiveness should be favored unless one of two conditions occurs does not, contrary to the Commission’s assertion, mean that the competitiveness goal is less mandatory than the other goals, can be ignored, or should be relegated to a secondary role. The constitutional language means what it says: The Commission should favor  creating more competitive districts to the extent practicable when doing so does not cause significant detriment to the other goals.

We can argue the semantics of whether the restrictions in the competitive district requirement render it "secondary" or not but one thing is clear.  It's ok for districts to be compact and contiguous, respect comunities of interest and natural boundaries while NOT being competitive.  However it's not OK to have competitive districts that sacrifice the other characteristics.   

In other words, the Constitution says that the lines can't be Gerrymandered.  They must be compact and contiguous, respect communities of interest and natural boundaries.  They can also be competitive--if it doesn't cause significant detriment to with the other factors. 

Significant detriment?  These maps obliterate the other factors.  These maps raise competitiveness to the primary factor and reduce the anti-gerrymandering factors to secondary factors.  That's why the IRC put Fountain Hills in a district with Yuma and Kingman!  It's why they put Flagstaff in a district with Benson.  The districts have been gerrymandered in order to provide Democrats with a maximum number of winnable districts.  That may sound fine and I may sound like I'm just whining, but I didn't write the standards.  The constitution says that the IRC can't gerrymander the districts in order to make them competitive.  Period.

Now what?  Fortunately, the Constitution has a remedy: 

After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.

Well, when the IRC deprived Republicans of their own counsel, I didn't ask that they be removed.  When they chose a partisan consultant I didn't ask that they be removed and when they blatantly deliberated in Executive Session, I didn't call for them to be removed.  But now, they have violated the fundamental duty that they were required to fulfill.  They were supposed to draw districts that weren't gerrymandered for partisan advantage.  They have failed their fundamental mission--the districts aren't compact; they don't respect communities of interest and they don't respecting natural boundaries. 

Gerrymandering the maps for partisan advantage is clearly a "substantial neglect of duty." (and the open meeting violations probably rise to "gross misconduct in office."  The IRC has proven to be not only incompetent in the little things, but has also failed in its fundamental task. 

Remove them all.  Start over. 

If there's not time for the new IRC Commissioners to draw new maps, then let the courts draw the 2012 maps and the new IRC will draw the 2014 maps. 

The Governor and Senators have a Constitutional duty to ensure that the IRC follows the Constitutional Requirements.  The IRC has blatantly ignored those requirements and the Governor and Senate have a rewponsiblity to fix the situation.  Let's see if they have the courage to fulfil that responsibility. 

 

Here is the exact wording of the 6 requirements.

A. Districts shall comply with the United States Constitution and the United States voting rights act;

B. Congressional districts shall have equal population to the extent practicable, and state legislative districts shall have equal population to the extent practicable;

C. Districts shall be geographically compact and contiguous to the extent practicable;

D. District boundaries shall respect communities of interest to the extent practicable;

E. To the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts;

F. To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.