Navajo Nation v. Arizona Independent Redistricting, CV 02-0799-PHX-ROS.

• Citation: 230 F.Supp.2d 998
• Decision Date: 19 September 2002
• Docket Number: No. CV 02-0799-PHX-ROS.,No. CV-02-0807-PHZ-ROS.,CV 02-0799-PHX-ROS.,CV-02-0807-PHZ-ROS.
• Parties: NAVAJO NATION, a federally recognized Indian tribe, Plaintiff, v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, a state agency, et al., Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona

230 F.Supp.2d 998

NAVAJO NATION, a federally recognized Indian tribe, Plaintiff, v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, a state agency, et al., Defendants.

No. CV 02-0799-PHX-ROS.

No. CV-02-0807-PHZ-ROS.

United States District Court, D. Arizona.

September 19, 2002.

Dana Lee Bobroff, Navajo Nation Dept. of Justice, Window Rock, AZ, Marvin S. Cohen, Jusith M. Dworkin, Tina Marie Kirstein-Ezzell, Sacks Tierney PA, Scottsdale, AZ, Patricia Ferguson Bohnee, Sacks Tierney, Scottsdsale, AZ, for Navajo Nation.

Kevin Lohrausb Parsi, Titla & Parsi, Phoenix, AZ, H. Reed Witherby, Smith &amp Duggan, LLP, Boston, MA, Steve M. Titla, Titla & Parsi, Globe, AZ, for San Carlos Apache Tribe of Ariz.

Lisa Tewsbury Hauser, James A. Craft, Gammage & Burnham PLC, Phoenix, AZ, Jose de Jesus Rivera, Haralson Miller Pitt & McAnally, PLC, Phoenix, AZ, for Arizona Independent Redistricting Com'n.

Mary Ruth O'Grady, Joseph Andrew Kanefield, Office of Atty. Gen., Phoenix, AZ, for Betsey Bayless.

Paul F. Eckstein, Michael S. Mandall, Brown & Bain, PA, Phoenix, AZ, Richard A. Halloran, Joshua Grabel, Lewis & Roca, LLP, Phoenix, AZ, Aaron Kizer, Law Office of Aaron Kizer PLC, Phoenix, AZ, for Arizona Minority Coalition for Fair Redistricting, Ramon Valadez, Peter Rios, Carlos Avelar, James Sedillo, Mary Rose Garrido Wilcox, Esther Lumm, Virginia Rivera, Los Abogados.

Jill M. Kennedy, Maricopa County Attorney's Office, Div. of County Counsel, Phoenix, AZ, Otis Smith, Law Office of Otis Smith, Phoenix, AZ, for Count of Maricopa.

Russell H. Burdick, Nancy E. Dean, Appache County Attorney's Office, St. Johns, AZ, for County of Apache.

Derek D. Rapier, Greenlee County Attorney's Office, Clifton, AZ, for County of Greenlee.

Daisy Denise Gilker, Gila County Attorney's Office, Globe, AZ, for County of Gila.

Derek D. Rapier, Greenlee County Attorney's Office, Clifton, AZ, Russell H. Burdick, Nancy E. Dean, Apache County Attorney's Office, St. Johns, AZ, Daisy Denise Gilker, Gila County Attorney's Office, Globe, AZ, for Eastern Arizona Counties Organization.

Kenneth Andrew Angle, Bryce & Udall, Safford, AZ, for County of Graham.

Neil vincent Wake, Linda Delmor Skon, Law Offices of Neil Vincent Wake, Phoenix, AZ, Michael A. Carvin, Jones Day Reavis & Pogue, Washington, DC, for Arizonians for Fair and Legal Redistricting, Jesse Hernandez, Martin Sepulveda, Ilia Terrazas.

John R. Moffitt, City of Prescott Legal Dept., Prescott, AZ, for City of Prescott.

Ivan Legler, Prescott Valley, AZ, for Town of Prescott Valley.

Patrick Irvine, Office of Atty. Gen., Phoenix, AZ, Todd Frederick Lang, Office of Atty. Gen., Solicitor General & Opinions Section, Phoenix, AZ, for Citizens Clean Elections Com'n.

Daniel R. Ortega, Jr., Ortega & Assoc., PC, Phoenix, AZ, for Hopi Tribe.

Martha Starr Chase, Santa Cruz County Atty., Nogales, AZ, Ronald Marc Lehman, Gabroy Rollman & Bosse PC, Tucson, AZ, for County of Santa Cruz.

David J. Cantelme, Jennings Strouss & Salmon PLC, Phoenix, AZ, for City of Flagstaff.

Bruce E. Cain, Berkeley, CA, pro se.

Before: ROSLYN O. SILVER and SUSAN R. BOLTON, District Judges, and MARSHA S. BERZON, U.S. Circuit Judge.

OPINION

SILVER, District Judge.

A three-judge panel ("Court") was convened on May 8, 2002 to determine whether Arizona's 1994 legislative districts were unconstitutional and if necessary to adopt an interim legislative redistricting plan that meets the requirements of the United States Constitution and the Voting Rights Act of 1965, 42 U.S.C. §§ 1973, 1973c. On May 24 the parties stipulated to an interim plan ("IRC Proposed Plan" or "Plan"), and on May 29 presented evidence in support of the adoption of this interim Plan for the 2002 elections. The Court issued an order the same day approving and adopting the Plan for interim use in the 2002 legislative elections and promised an opinion to follow. This is that opinion.

I BACKGROUND

a. Arizona's Legislative Redistricting History

Arizona has a bicameral state legislature comprised of 60 representatives and 30 senators drawn from 30 legislative districts. ARIZ. CONST. art. IV, Pt. 2, § 1(1), (2). Historically, the legislature undertook the assignment of redistricting under special session called by the governor. See ARIZ. CONST. art. IV, Pt. § 1 (historical notes to 2000 amendment); Klahr v. Williams, 339 F.Supp. 922, 923 (D.Ariz. 1972)(per curiam).

Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, provides that any state or jurisdiction with a history of discrimination against minority voters is required to submit redistricting plans for preclearance to the United States Department of Justice ("DOJ") or the District Court for the District of Columbia. Because of this history, see Ely v. Klahr, 403 U.S. 108, 118-19, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971), Arizona has been required to obtain preclearance¹ pursuant to Section 5 since November 1, 1972, see Arizona v. Reno, 887 F.Supp. 318, 319 (D.D.C.1995). see also http://www .usdoj.gov/crt/voting/sec_5/covered.htm (Department of Justice's list of covered jurisdictions).

In the past, the Arizona legislature undertook to devise constitutionally valid redistricting plans and, beginning with the 1980 census, submitted its redistricting plans to DOJ for preclearance. See, e.g., Klahr v. Goddard, 250 F.Supp. 537 (D.Ariz.) (Congressional and legislative redistricting post-1960 census), amended by 254 F.Supp. 997 (D.Ariz.), amended by, 289 F.Supp. 827 (D.Ariz.1966); Klahr, 339 F.Supp. at 923-24 (Congressional and legislative redistricting post-1970 census); Goddard v. Babbitt, 536 F.Supp. 538 (D.Ariz.1982) (Congressional and legislative redistricting post-1980 census); Arizonans for Fair Representation v. Symington, 828 F.Supp. 684 (D.Ariz.1992) (Congressional redistricting post-1990 census); Arizonans for Fair Representation v. Symington, 1993 WL 375329 (D.Ariz. June 19, 1992) (legislative redistricting post-1990 census).

In November 2000, Arizona voters passed Proposition 106 in part to improve voter and candidate participation in the redistricting process. See ARIZ. CONST. art. IV, Pt. 2, § 1 (historical notes to 2000 amendment). Proposition 106 amended Arizona's constitution and reassigned the role of redistricting from the State legislature to the Independent Redistricting Commission ("IRC"), composed of two Republicans, two Democrats and an independent who serves as the chair. See ARIZ. CONST. art. IV, Pt. 2, § 1(6), (8).

One of Proposition 106's unique features requires the IRC to begin the mapping process with a "clean slate" by creating equally populous districts in a grid-like pattern across the State. ARIZ. CONST. art. IV, Pt. 2, § 1(14). The IRC must ensure that the configuration of the districts complies with the United States Constitution and the Voting Rights Act. ARIZ. CONST. art. IV, Pt. 2, § 1(14)(A). From there the IRC must adjust the grids according to traditional mapping considerations such as compactness, contiguity and communities of interest. ARIZ. CONST. art. IV, Pt. 2, § 1(14)(C), (D). To the extent practicable the IRC is required to use visible geographic features, city, town and county boundaries, and undivided census tracts. ARIZ. CONST. art. IV, Pt. 2, § 1(14)(E). The IRC must attempt to create competitive districts to the extent practicable where doing so would create no significant detriment to the other factors. ARIZ. CONST. art. IV, Pt. 2, § 1(14)(F). Uniquely, however, the IRC is completely prohibited from considering incumbency. ARIZ. CONST. art. IV, Pt. 2, § 1(15).

The 2000 decennial census indicated that Arizona's population had increased from 3,665,226 in 1990 to 5,130,632 in 2000, and showed substantial population shifts within the pre-existing 1994 Congressional and legislative districts. As a result, redistricting to conform to federal and State law became necessary. Consequently, in June 2001 the IRC commenced the legal process of reshaping the boundaries of Arizona's Congressional and legislative districts. To achieve the Arizona constitutional goals the IRC prompted the public, private and public groups and entities, including cities and counties, to take an interest and become involved in the redistricting process.

The IRC held a series of public hearings throughout the State in the summer of 2001, and finally adopted a redistricting plan in October 2001 ("IRC 2001 Plan"). After a thirty-day public comment period provided for by law, see ARIZ. CONST. art. IV, Pt. 2, § 1(16), in November 2001 the IRC certified the new Congressional and legislative district boundaries to Arizona's Secretary of State, see ARIZ. CONST. art. IV, Pt. 2, § 1(17). On January 24, 2002 the IRC, on behalf of the State of Arizona, submitted the new Congressional and legislative district plans to the DOJ for preclearance. A decision from the DOJ, however, was not immediately forthcoming. The DOJ has 60 days to review and respond to a preclearance request, and may extend the final decision for an additional 60 days. See 28 C.F.R. 51.37; http://www.usdoj.gov/crt/voting/sec_5/making.htm (explanation of the preclearance process and response times).

b. State Litigation

On March 6, 2002, the Arizona Minority Coalition for Fair Redistricting, Los Abogados, Inc., and several individual plaintiffs (collectively, the "Minority Coalition" or "Coalition"²) filed a complaint in State court against the IRC alleging in relevant part that the IRC failed to fulfill all of the redistricting goals required in the Arizona Constitution. (Docket # 9 in CV02-807-PHX-ROS, Exhibit 2) In particular, the Minority Coalition requested remedial action to cure the IRC's failure to comply with its duty to create and maintain "competitive" districts, and to remedy the reduction of the number of competitive districts in the IRC's 2001 Plan. See ARIZ. CONST. art. IV, part 2, § 1(14)(F).³ A number of groups intervened to protect their interests, including the Navajo Nation and the San Carlos Apache Tribe,...