[EL] Did the Court already tip its hand in Harris v. AIRC?

[Noah Bokat-Lindell]

Hello all,

As a mere law student, I normally wouldn't post on this listserv. (After
all, I'm still just a learner!) But I thought I'd bring something to your
attention that's relevant to the new Arizona redistricting case, just in
case you hadn't already noticed it.

There's a passage in the *Arizona State Legislature v. AIRC *opinion from
Monday that addresses the *Harris *case, and it doesn't seem very favorable
to the plaintiffs, at least in atmospherics. Chief Justice Roberts' dissent
criticized independent redistricting commissions generally and the AIRC
specifically, saying that they are plagued by partisanship in spite of
their supposedly non-partisan nature, and cited *Harris *for support. On p.
32 of the slip opinion, the majority says the following:

THE CHIEF JUSTICE, in dissent, suggests that independent commissions
established by initiative are a high-minded experiment that has failed.
*Post*, at 26–27. For this assessment, THE CHIEF JUSTICE cites a
three-judge Federal District Court opinion, *Harris *v. *Arizona
Independent Redistricting Comm’n*, 993 F. Supp. 2d 1042 (Ariz. 2014). That
opinion, he asserts, “detail[s] the partisanship that has affected the
Commission.” *Post*, at 26. No careful reader could so conclude.

The report of the decision in *Harris *comprises a *per curiam *opinion, an
opinion concurring in the judgment by Judge Silver, and a dissenting
opinion by Judge Wake. The *per curiam *opinion found “in favor of the
Commission.” 993 F. Supp. 2d, at 1080. Deviations from the one-person,
one-vote principle, the *per curiam *opinion explained at length, were
“small” and, in the main, could not be attributed to partisanship.
*Ibid. *While
partisanship “may have played some role,” the *per curium *opinion stated,
deviations were “predominantly a result of the Commission’s good-faith
efforts to achieve preclearance under the Voting Rights Act.” *Id.*, at
1060. Judge Silver, although she joined the *per curiam *opinion, made
clear at the very outset of that opinion her finding that “partisanship did
not play a role.” *Id.*, at 1046, n. 1. In her concurring opinion, she
repeated her finding that the evidence did not show partisanship at work,
*id.*, at 1087; instead, she found, the evidence “[was] overwhelming [that]
the final map was a product of the commissioners’s consideration of
appropriate redistricting criteria.” *Id.*, at 1088. To describe *Harris *as
a decision criticizing the Commission for pervasive partisanship, *post*,
at 26, THE CHIEF JUSTICE could rely only upon the dissenting opinion, which
expressed views the majority roundly rejected.


This obviously does not directly answer the questions presented in the
appeal, but it does seem to give a window into what five of the Justice at
least initially think about the case. After all, to be this dismissive of
the Chief Justice's claims of partisanship, the majority has to be giving
more credence to the views of the two judges who formed the majority ruling
for the AIRC below than to the one dissenting judge. It's true that all the
majority here is saying is that the district court opinion itself does not
support the Chief Justice's claim. Still, it seems like it could be
revealing of their thoughts, and thereby potentially relevant to their
later review of *Harris *itself. At the least, if the Court remains this
willing to defer to the lower court's finding that partisanship was not a
large part of map-drawing process, then it seems the first question
presented becomes less relevant. The action would be mainly on the question
of whether it was constitutional to rely on Section 5 (which one would
think would have been fine in 2010-11, even if the Court says it isn't
going forward b/c of *Shelby County*). Only if they answer that question in
the negative do we get back to the issue of whether this was more based on
partisanship or on "traditional redistricting criteria," as Judge Silver
put it--including the state constitutional requirement to try to make the
districts more competitive.

Sorry if someone else has already brought up this passage; I've been
following the discussions of the case on this listserv but I may have
missed someone talking about this.

Have a Happy Fourth everyone!

*Noah B. Lindell*
*J.D. Candidate, Yale Law School*
(973) 801-4627
noah.lindell at yale.edu
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