Harris et al v. Arizona Independent Redistricting Commission et al

Filing 229

Order Issued Per Curiam Opinion: We find in favor of the Commission on plaintiffs' claim that the Commission's legislative redistricting plan violated the one-person, one-vote principle of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. We order the entry of judgment for the Commission. (Attachments: # 1 Silver Concurrence, # 2 Wake Dissent)(ALS)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Wesley W. Harris, et al., Plaintiffs, 10 11 vs. 12 13 14 Arizona Independent Commission, et al., Defendants. 15 ) ) ) ) ) ) ) Redistricting) ) ) ) ) ) No. CV-12-894-PHX-ROS-NVW-RRC OPINION 16 17 Before: CLIFTON, Circuit Judge, and SILVER and WAKE, District Judges. 18 PER CURIAM: 19 Plaintiffs, individual voters registered in the State of Arizona, challenge the map 20 drawn for state legislative districts by the Arizona Independent Redistricting Commission 21 for use starting in 2012, based on the 2010 census. They argue that the Commission 22 underpopulated Democrat-leaning districts and overpopulated Republican-leaning 23 districts for partisan reasons, in violation of the Fourteenth Amendment’s one-person, 24 one-vote principle. The Commission denies that it was driven by partisanship, explaining 25 that the population deviations were driven by its efforts to comply with Section 5 of the 26 Voting Rights Act. We conclude that the population deviations were primarily a result of 27 good-faith efforts to comply with the Voting Rights Act, and that even though 28 partisanship played some role in the design of the map, the Fourteenth Amendment 1 2 challenge fails.1 The one-person, one-vote requirement of the Equal Protection Clause of the 3 Fourteenth Amendment does not require that legislative districts have precisely equal 4 population, but provides that divergences must be “based on legitimate considerations 5 incident to the effectuation of a rational state policy.” Reynolds v. Sims, 377 U.S. 533, 6 579 (1964). The majority of the overpopulated districts in the map drawn by the 7 Commission were Republican-leaning, while the majority of the underpopulated districts 8 leaned Democratic. Plaintiffs’ complaint alleged that this correlation was no accident, that 9 partisanship drove it, and that partisanship is not a permissible reason to deviate from 10 11 population equality in redistricting. The Commission does not argue that the population deviations came about by 12 accident, but it disputes that the motivation was partisanship. Most of the underpopulated 13 districts have significant minority populations, and the Commission presented them to the 14 1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This per curiam opinion speaks for a majority of the court in all but one respect. On the issue of the burden of proof that plaintiffs must bear, there is not a majority opinion. See the specific discussion on that subject below, at 42–43 n. 10. Judge Silver concurs in the result and joins this opinion in all but three respects. One is the burden of proof requirement just mentioned. There is no majority conclusion on that subject. Her second difference is with the factual finding that partisanship played some part in the drafting of the legislative district maps, primarily discussed below in section II.I, at 23–28, and to some extent in section IV.C, at 53–54. She finds that partisanship did not play a role. The finding on that subject expressed in this opinion represents a majority consisting of Judge Clifton and Judge Wake. The third disagreement, previously announced, was from the majority’s denial prior to trial of defendants’ motion for abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), discussed below in section III.B, at 33–36. That motion was denied by a majority consisting of Judge Clifton and Judge Wake. Judge Silver’s separate views are expressed in a separate opinion, concurring in part, dissenting in part, and concurring in the judgment, filed together with this per curiam opinion. Judge Wake dissents from the result reached in this opinion, though he joins portions of it. In addition to the finding that partisanship played some role, identified in the preceding paragraph, he specifically joins in section III of this opinion, at 28–40, discussing our resolution of pretrial motions. His views are expressed in his separate opinion, concurring in part, dissenting in part, and dissenting from the judgment, also filed together with this opinion. -2- 1 Department of Justice as districts in which minority groups would have the opportunity to 2 elect candidates of their choice. Section 5 of the Voting Rights Act required that the 3 Commission obtain preclearance from the Department before its plan went into effect. To 4 obtain preclearance, the Commission had to show that any proposed changes would not 5 diminish the ability of minority groups to elect the candidates of their choice. The 6 Commission argues that its effort to comply with the Voting Rights Act drove the 7 population deviations. 8 9 For the purpose of this opinion, we assume without deciding that partisanship is not a legitimate reason to deviate from population equality. We find that the primary 10 factor driving the population deviation was the Commission’s good-faith effort to comply 11 with the Voting Rights Act and, in particular, to obtain preclearance from the Department 12 of Justice on the first try. The commissioners were aware of the political consequences of 13 redistricting, however, and we find that some of the commissioners were motivated in 14 part in some of the linedrawing decisions by a desire to improve Democratic prospects in 15 the affected districts. Nonetheless, the Fourteenth Amendment gives states some degree 16 of leeway in drawing their own legislative districts and, because compliance with federal 17 voting rights law was the predominant reason for the deviations, we conclude that no 18 federal constitutional violation occurred. 19 We do not decide whether any violations of state law occurred. Though plaintiffs 20 have alleged violations of state law and the Arizona Constitution, we decided early in the 21 proceedings and announced in a prior order that Arizona’s courts are the proper forum for 22 such claims. We discuss that subject further below, at 32–33. We express no opinion on 23 whether the redistricting plan violated the equal population clause of the Arizona 24 Constitution, whether the Commission violated state law in adopting the grid map with 25 population variations rather than strict population equality, or whether state law prohibits 26 adjusting legislative districts for partisan reasons. All that we consider is whether a 27 federal constitutional violation occurred. 28 At trial, plaintiffs focused on three districts that they argued were not true Voting -3- 1 Rights Districts and therefore could not justify population deviations: Districts 8, 24, and 2 26. Accordingly, this opinion largely focuses on the population shifts associated with the 3 creation of these three districts. 4 I. Course of Proceedings 5 Plaintiffs filed this action on April 27, 2012, and subsequently filed a First 6 Amended Complaint. This three-judge district court was convened pursuant to 28 U.S.C. 7 § 2284(a). Plaintiffs sought a declaration that the final legislative map violated both the 8 Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and the 9 equal population requirement of the Arizona Constitution, an injunction against enforcing 10 the map, and a mandate that the Commission draw a new map for legislative elections 11 following the 2012 elections. Originally, not only was the Commission a defendant in this 12 action, but so too were each of the five commissioners in their official capacities.2 13 Defendants moved to dismiss the complaint for failure to state a claim. In a 14 reasoned order, we denied the motion. Plaintiffs then filed a Second Amended Complaint. 15 Prior to trial, the parties filed several motions that the court summarily disposed of 16 on February 22, 2013. First, defendants moved to stay the case pending the resolution of 17 state-law claims in state court, which we denied. Defendants also moved for a protective 18 order on the basis of legislative privilege, which we denied. Finally, defendants moved 19 for judgment on the pleadings, asking for dismissal of the individual commissioners as 20 defendants and for dismissal of plaintiffs’ claim for relief under the equal population 21 requirement of the Arizona Constitution. We granted this motion, dismissing the 22 individual commissioners from the suit and dismissing plaintiffs’ second claim for relief. 23 We explain the bases for our rulings on these motions later in this opinion, at 28–40. 24 25 Starting March 25, 2013, we presided over a five-day bench trial. Among other witnesses, all five commissioners testified. 26 27 28 2 Arizona Secretary of State Ken Bennett, sued in his official capacity, is also a nominal defendant in the action. When we refer to “defendants” in this opinion, however, we refer collectively to the Commission and commissioners. -4- 1 2 II. Findings of Fact Most of the factual findings below, based in large part on transcripts of public 3 hearings and other documents in the public record, were not disputed at trial. Rather, what 4 was most controverted was what inferences about the Commission’s motivation we 5 should draw from the largely undisputed facts. We discuss that issue, whether and to what 6 extent partisanship motivated the Commission, at the end of this section, at 23–28. 7 To the extent any finding of fact should more properly be designated a conclusion 8 of law, it should be treated as a conclusion of law. Similarly, to the extent any conclusion 9 of law should more properly be designated a finding of fact, it should be treated as a 10 finding of fact. 11 A. 12 The first election cycle using the legislative map drawn by the Commission took The Approved Legislative Redistricting Plan 13 place in 2012. Arizona has thirty legislative districts, each of which elects two 14 representatives and one senator. Ariz. Const. art. IV, pt. 2, § 1. The following chart 15 summarizes pertinent electoral results and population statistics for the Commission’s 16 2012 legislative map, which we explain in greater detail below. 17 18 19 20 21 22 23 24 25 26 27 28 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Percentage Deviation  Presented to DOJ as Ability‐ from Ideal Population to‐Elect District 1.6% ‐4.0% Yes ‐4.0% Yes ‐4.2% Yes 2.8% 0.6% ‐4.7% Yes ‐2.2% 0.1% ‐0.9% 0.1% 4.1% ‐0.6% 2.2% 0.9% 3.3% 3.8% 2.6% ‐2.8% Yes 2.4% 1.5% 1.3% 0.2% ‐3.0% Yes 3.6% 0.3% Yes ‐4.2% Yes 2.6% ‐0.9% Yes ‐2.5% Yes District 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Party Affiliation of Senator  Elected in 2012 Republican Democrat Democrat Democrat Republican Republican Democrat Democrat Democrat Democrat Republican Republican Republican Republican Republican Republican Republican Republican Democrat Republican Republican Republican Republican Democrat Republican Democrat Democrat Republican Democrat Democrat Party Affiliation of Representatives  Elected in 2012 Two Republicans Two Democrats Two Democrats Two Democrats Two Republicans Two Republicans Two Democrats Two Republicans One Democrat, One Republican Two Democrats Two Republicans Two Republicans Two Republicans Two Republicans Two Republicans Two Republicans Two Republicans Two Republicans Two Democrats Two Republicans Two Republicans Two Republicans Two Republicans Two Democrats Two Republicans Two Democrats Two Democrats One Democrat, One Republican Two Democrats Two Democrats 17 Figure 1. 2012 Legislative Map Statistics. 18 In the 2012 elections, Republicans won a total of 36 out of the 60 house seats, 19 winning both seats in 17 districts and 1 seat in 2 districts. Democrats won the remaining 20 24 house seats, winning 2 seats in 11 districts and 1 seat in 2 districts. Republicans won 21 17 out of 30 senate seats, and Democrats won the remaining 13. The Democratic senate 22 candidate narrowly won in District 8, but the Republican candidate might have won if not 23 for the presence of a Libertarian candidate in the race.3 In all, 16 districts elected only 24 Republicans to the state legislative houses, 11 districts elected only Democrats, and 3 25 districts elected a combination of Republicans and Democrats. 26 3 27 28 The Democratic candidate in District 8 won with 49 percent of the vote; the Republican received 46 percent of the vote, and the Libertarian candidate received the remaining 5 percent. Republicans won both of the state house races in District 8. -6- 1 Ideal population is the average per-district population, or the population each 2 district would have if population was evenly distributed across all districts. Of the 16 3 districts that elected only Republicans to the state legislature, 15 were above the ideal 4 population and 1 was below. Of the 11 districts that elected only Democrats to the state 5 legislature, 2 were above the ideal population and 11 were below. District 8 was below 6 ideal population, and the other 2 districts that elected legislators from both parties were 7 above ideal population. 8 9 Of the 10 districts the Commission presented to the Department of Justice as districts in which minority candidates could elect candidates of their choice, or 10 “ability-to-elect districts,” all 10 only elected Democrats to the state legislature in 2012. 11 Nine out of ten of these ability-to-elect districts were below the ideal population, and one 12 was above. 13 Of the 9 districts presented to the Department of Justice as districts in which 14 Hispanics could elect a candidate of their choice, all but District 24 elected at least one 15 Hispanic candidate to the state legislature in the 2012 elections. In District 26, only one of 16 the three legislators elected in 2012 was of Hispanic descent. Of the 27 state legislators 17 elected in the purported ability-to-elect districts, 16 were of Hispanic descent. 18 District 7 was presented to the Department of Justice as a district in which Native 19 Americans could elect candidates of their choice, and it elected Native American 20 candidates in all three of its state legislative races. 21 Maximum population deviation refers to the difference, in terms of percentage 22 deviation from the ideal population, between the most populated district and the least 23 populated district in the map. In the approved legislative map, maximum population 24 deviation was 8.8 percent; District 12 had the largest population, at 4.1 percent over the 25 ideal population, and District 7 had the smallest population, at 4.7 percent under the ideal. 26 B. 27 In 2000, Arizona voters amended the state constitution by passing Proposition 106, 28 Formation of the Commission an initiative removing responsibility for congressional and legislative redistricting from -7- 1 the state legislature and placing it in the newly established Independent Redistricting 2 Commission. See Ariz. Const. art. IV, pt. 2, § 1(3). Five citizens serve on the 3 Commission, consisting of two Republicans, two Democrats, and one unaffiliated with 4 either major party. See id. § 1(3)–(5). Selection of the commissioners begins with the 5 Arizona Commission on Appellate Court Appointments, which interviews applicants and 6 creates a slate of ten Republican candidates, ten Democratic candidates, and five 7 independent or unaffiliated candidates. See id. § 1(4)–(5). Four commissioners are 8 appointed from the party slates, one by each of the party leaders from the two chambers 9 of the legislature. See id. § 1(6). Once appointed, those four commissioners select the fifth 10 commissioner from the slate of unaffiliated candidates, and the fifth commissioner also 11 serves as the commission chair. Id. § 1(8). 12 Pursuant to these requirements, Republican commissioners Scott Freeman and 13 Richard Stertz were appointed by the Speaker of the House and the President of the 14 Senate, respectively, and Democratic commissioners Jose Herrera and Linda McNulty 15 were appointed by the House Minority Leader and Senate Minority Leader, respectively. 16 Commissioners Freeman, Stertz, Herrera, and McNulty then interviewed all five 17 candidates on the unaffiliated slate. 18 In his interview notes, Commissioner Stertz noted his concerns with the liberal 19 leanings of most of the candidates on the unaffiliated list. For example, he wrote that 20 Kimber Lanning’s fundraising efforts were almost all for Democrats, and that her 21 Facebook page indicated a fondness for Van Jones.4 Paul Bender, another candidate, 22 served on the board of the ACLU. Margaret Silva identified Cesar Chavez as her hero, 23 and her Facebook profile picture featured her alongside Nancy Pelosi, the Democratic 24 leader in the U.S. House of Representatives. Ray Bladine was his first choice for the 25 position, whom Stertz described as balanced despite Bladine’s former tenure as chief of 26 27 28 4 Van Jones served as a special advisor to President Obama in 2009. He resigned that position after criticism from conservatives and Republicans. -8- 1 2 staff for a Democratic mayor. In a public meeting, the four commissioners unanimously selected Colleen Mathis 3 as the fifth commissioner and chairwoman. In his interview notes Commissioner Stertz 4 described her as balanced, though noting that she and her husband had supported 5 Democratic candidates. Mathis and her husband had also made contributions to 6 Republican candidates. 7 C. 8 The Commission has authority to hire legal counsel to “represent the people of 9 Arizona in the legal defense of a redistricting plan,” as well as staff and consultants to Selection of Counsel and Mapping Consultant 10 assist with the mapping process. Ariz. Const. art. IV, pt. 2, §§ 1(19), (20). The selection 11 of the Commission’s counsel and mapping consultant sparked public controversy, and 12 plaintiffs argue that the process reflected a partisan bias on the part of Chairwoman 13 Mathis. 14 The previous Commission, after the 2000 census, had retained a Democratic 15 attorney and a Republican attorney. Chairwoman Mathis expressed interest in hiring one 16 attorney instead of two, as the counsel hired would represent the entire Commission. The 17 other four commissioners preferred to hire two attorneys with different party affiliations, 18 however. That is what the Commission decided to do. 19 The Commission used the State Procurement Office to help retain counsel and 20 interviewed attorneys from six law firms. Among the interviewees were the two attorneys 21 who had worked for the previous Commission: Lisa Hauser, an attorney with the firm of 22 Gammage & Burnham and a Republican, and Michael Mandell, an attorney with the 23 Mandell Law Firm and a Democrat. Other attorneys interviewed by the Commission 24 included Mary O’Grady, a Democrat with Osborn Maledon, and Joe Kanefield, a 25 Republican with Ballard Spahr. Osborn Maledon and Ballard Spahr received the highest 26 scores from the Commission based on forms provided by the State Procurement Office 27 for use in the selection process. Nonetheless, Commissioner Herrera expressed a 28 preference for retaining Mandell as Democratic counsel, and Commissioners Stertz and -9- 1 Freeman preferred Hauser and Gammage & Burnham as Republican counsel. 2 In a public meeting, Commissioner Herrera moved to retain Osborn Maledon and 3 Ballard Spahr at Chairwoman Mathis’s suggestion. Commissioner Herrera later explained 4 that while Mandell was his first choice, Osborn Maledon and Ballard Spahr received the 5 highest evaluation scores. Commissioner Freeman expressed his preference for Gammage 6 & Burnham, and said he would give deference to the Democratic commissioners’ 7 preference for Democratic counsel if they would do the same for the Republican 8 commissioners. Commissioner Stertz then made a motion to amend, to instead retain the 9 Mandell Law Firm and Gammage & Burnham. The amendment was defeated on a 2-3 10 vote, with Commissioners Stertz and Freeman voting for it and Commissioners Mathis, 11 Herrera, and McNulty voting against. The motion to retain Osborn Maledon and Ballard 12 Spahr carried with a 3-2 vote, with Commissioners Mathis, Herrera, and McNulty voting 13 for the motion and Commissioners Stertz and Freeman voting against. The Commission 14 thus selected a Republican attorney for whom neither of the Republican commissioners 15 voted. 16 In selecting a mapping consultant, the Commission initially worked with the State 17 Procurement Office. An applicant for the position had to submit, among other things, an 18 explanation of its capabilities to perform the work, any previous redistricting experience, 19 any partisan connections, and a cost sheet. In the initial round of scoring, each applicant 20 was scored on a 1000-point scale. Each commissioner independently filled out a scoring 21 sheet, which considered capability to do the work but not cost, rating each applicant on a 22 700-point scale. The State Procurement Office rated each applicant on a 300-point scale, 23 200 points of which evaluated the relative cost of the bid. 24 The Commission considered the first round of scoring, and then announced a short 25 list of four firms that it would interview for the mapping consultant position. Those firms 26 were Strategic Telemetry, National Demographics, Research Advisory Services, and 27 Terra Systems Southwest. National Demographics, which had served as mapping 28 consultant for the previous Commission, had received the highest score in the first round - 10 - 1 2 of evaluations. The Commission interviewed the four selected firms in a public meeting. During 3 the interview of the head of National Demographics, Commissioner Herrera expressed 4 concern that there was a perception that the firm was affiliated with Republican interests. 5 National Demographics had worked for both Democratic and Republican clients, though 6 more Republicans than Democrats. In interviewing Strategic Telemetry, Commissioners 7 Freeman and Stertz asked whether, because Strategic Telemetry had worked for a number 8 of Democratic clients but no Republican clients, the firm would be perceived as biased. 9 After these interviews, the commissioners conducted a second round of scoring 10 before selecting a firm. In this round of scoring, Commissioners Mathis, Herrera, and 11 McNulty all gave Strategic Telemetry a perfect score. Strategic Telemetry came out of 12 this round with the highest overall score. Prior to the public meeting in which the 13 Commission voted to retain a mapping consultant, Chairwoman Mathis made a phone call 14 to Commissioner Stertz and asked him to support the choice of Strategic Telemetry. 15 The Commission selected Strategic Telemetry as the mapping consultant on a 3-2 16 vote, with Commissioners McNulty, Herrera, and Mathis voting in favor, and 17 Commissioners Freeman and Stertz voting against. Before the vote, Commissioners 18 Freeman and Stertz had expressed a preference for National Demographics. 19 At subsequent meetings, the Commission heard extensive criticism from members 20 of the public about the selection of Strategic Telemetry. Much of the criticism related to 21 the Democratic affiliations of the firm and to the fact that it was based out of Washington, 22 D.C., rather than Arizona. Strategic Telemetry was founded primarily as a microtargeting 23 firm, which uses statistical analyses of voter opinions to assist political campaigns. Ken 24 Strasma, president and founder of Strategic Telemetry, considered himself a Democrat, as 25 did most of the other employees of the firm. The firm had worked for Democratic, 26 independent, and nonpartisan campaigns, but no Republican campaigns. While Strasma 27 had redistricting experience in more than thirty states before he founded the firm in 2003, 28 the firm itself had no statewide redistricting experience at the time of its bid, nor any - 11 - 1 redistricting experience in Arizona. Also making Strategic Telemetry a controversial 2 choice was that it had submitted the most expensive bid to the Commission. All of this 3 was known to the Commission when Strategic Telemetry was selected as the mapping 4 consultant for the Commission and when Commissioners Mathis, Herrera, and McNulty 5 each gave Strategic Telemetry a perfect score of 700 points during the second round of 6 scoring. 7 D. The Grid Map 8 The Commission was required to begin the mapping process by creating “districts 9 of equal population in a grid-like pattern across the state.” Ariz. Const. art. IV, pt. 2, § 10 1(14). The Commission directed its mapping consultant to prepare two alternative grid 11 maps. Believing that the Arizona Constitution intended the Commission to begin with a 12 clean slate, several commissioners expressed interest in having an element of randomness 13 in the generation of the grid map. The Commission decided, after a series of coin flips, 14 that the consultant would generate two alternative grid maps, one beginning in the center 15 of the state and moving out counterclockwise, and the other with districts starting in the 16 southeast corner of the state, moving inwards clockwise. 17 After the two maps were presented, the Commission voted to adopt the second 18 alternative. The grid map selected had a maximum population deviation—the difference 19 between the most populated and least populated district—of 4.07 percent of the average 20 district population. 21 E. Voting Rights Act Preclearance Requirement 22 During the redistricting cycle at issue, Arizona was subject to the requirements of 23 Section 5 of the Voting Rights Act.5 Before a state covered by Section 5 can implement a 24 25 26 27 28 5 In a case decided after the implementation of the Commission’s new redistricting plan, the Supreme Court held unconstitutional the coverage formula used to determine which states are subject to the Section 5 preclearance requirement. See Shelby County v. Holder, 133 S. Ct. 2612 (2013). We discuss the impact of Shelby County on this case in our conclusions of law, at 47–49. - 12 - 1 redistricting plan, the state must prove that its proposed plan “neither has the purpose nor 2 will have the effect of denying or abridging the right to vote on account of race or color.” 3 42 U.S.C. § 1973c(a).6 The state must either institute an action with the U.S. District 4 Court for the District of Columbia for a declaratory judgment that the plan has no such 5 purpose or effect, or, as the Commission did here, submit the plan to the U.S. Department 6 of Justice. If the Justice Department does not object within sixty days, the plan has been 7 precleared and the state may implement it. See id. 8 9 A plan has an impermissible effect under Section 5 if it “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of 10 the electoral franchise.” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997). A 11 redistricting plan leads to retrogression when, compared to the plan currently in effect, the 12 new plan diminishes the ability of minority groups to “elect their preferred candidates of 13 choice.” See id.; 42 U.S.C. § 1973c(b). There is no retrogression so long as the number of 14 ability-to-elect districts does not decrease from the benchmark to the proposed plan. 15 Texas v. United States, 887 F. Supp. 2d 133, 157 (D.D.C. 2012) (citing Abrams v. 16 Johnson, 521 U.S. 74, 97–98 (1997)), vacated and remanded, 133 S. Ct. 2885 (2013) 17 (remanding for further consideration in light of Shelby County v. Holder, 133 S. Ct. 2612 18 (2013)). 19 A district gives a minority group the opportunity to elect the candidate of its choice 20 not only when the minority group makes up a majority of the district’s population (a 21 majority-minority district), but also when it can elect its preferred candidate with the help 22 of another minority group (a coalition district) or white voters (crossover districts). Texas, 23 887 F. Supp. 2d at 147–49. A minority group’s preferred candidate need not be a member 24 of the racial minority. Cf. Ruiz v. City of Santa Maria, 160 F.3d 543, 552 (9th Cir. 1998) 25 26 27 28 6 In order to better understand the factual findings that follow, some understanding of the requirements of the Voting Rights Act is useful. We include this discussion as background, acknowledging that it incorporates conclusions of law, albeit for the most part conclusions that do not appear to us to be controversial. - 13 - 1 (discussing minority candidates of choice for the purposes of Section 2 of the Voting 2 Rights Act). “Ability to elect” properly refers to the ability to elect the preferred 3 candidate of Hispanic voters from the given district, which is not necessarily the same 4 thing as the ability to elect a Hispanic candidate from that district, though there is obvious 5 overlap between those two concepts. 6 In determining the ability to elect in districts in the proposed and benchmark plan, 7 the Department of Justice begins its review of a plan submitted for preclearance by 8 analyzing the districts with current census data. 76 Fed. Reg. 7470, 7472 (Feb. 9, 2011). 9 The analysis is a complex one relying on more than just census numbers, however, and 10 does not turn on reaching a fixed percentage of minority population. Rather, the 11 Department looks at additional demographic data such as group voting patterns, electoral 12 participation, election history, and voter turnout. Id. at 7471; see also Texas, 887 F. Supp. 13 2d at 150 (“There is no single, clearly defined metric to determine when a minority group 14 has an ability to elect, so we use a multi-factored approach to determine when a coalition 15 or crossover district achieves that ability.”). 16 Several aspects of the preclearance process encourage states to do more than the 17 bare minimum to avoid retrogression. First, state officials do not know exactly what is 18 required to achieve preclearance. As explained above, the Department of Justice relies on 19 a variety of data in assessing retrogression, rather than assessing a fixed goal that states 20 can easily ascertain. Bruce Cain, an expert in Voting Rights Act compliance in 21 redistricting who served as a consultant to the Commission following the 2000 census and 22 was retained for this lawsuit by the current Commission, testified at trial that the lack of 23 clear rules creates “regulatory uncertainty” that forces states “to be cautious and to take 24 extra steps.” 25 Moreover, the preclearance process with respect to any particular plan is generally 26 an opaque one. When the Department of Justice objects to a plan, the state receives an 27 explanation of the basis for the objection. When the Department does not object, by 28 contrast, the state receives no such information. In other words, the state does not know - 14 - 1 how many benchmark districts the Department believed there were nor how many 2 ability-to-elect districts the Department concluded were in the proposed plan. Nor does it 3 know whether the new plan barely precleared or could have done with fewer 4 ability-to-elect districts. 5 Consultants and attorneys hired by a state to assist with the preclearance process 6 may also tend to encourage taking additional steps to achieve preclearance. The 7 professional reputation of a consultant gives him a strong incentive to ensure that the 8 jurisdictions he advises obtain preclearance. The Commission, for example, asked 9 applicants to serve as its mapping consultant whether they had previously worked with 10 states in redistricting and whether those jurisdictions had succeeded in gaining 11 preclearance on the first try. 12 These factors may work together to tilt the board somewhat because they 13 encourage a state that wants to obtain preclearance to overshoot the mark, particularly if it 14 wants its first submission to be approved. Because it is not clear where the Justice 15 Department will draw the line, there is a natural incentive to provide a margin of error or 16 to aim higher than might actually be necessary. Attorneys and consultants, aware that 17 their professional reputations may be affected, can be motivated to push in that direction. 18 The Arizona Commission early in the process identified obtaining preclearance on 19 its first attempt as a priority. All of the commissioners, Democrats and Republicans alike, 20 shared this goal. In prior decades, Arizona had never obtained preclearance from the 21 Department of Justice for its legislative redistricting plan based upon its first submission. 22 The Commission was aware that, among other consequences, failure to preclear would 23 make Arizona ineligible to bail out as a Section 5 jurisdiction for another ten years. See 24 42 U.S.C. § 1973b(a)(1). Although the Commission considered and often adjusted lines to 25 meet other goals, it put a priority on compliance with the Voting Rights Act and, in 26 particular, on obtaining preclearance on the first attempt. 27 F. 28 After adopting a grid map, the Commission was directed by the Arizona The Draft Map - 15 - 1 Constitution to adjust the map to comply with the United States Constitution and the 2 federal Voting Rights Act. Ariz. Const. art. IV, pt. 2, § 1(14). It was also instructed to 3 adjust the map, “to the extent practicable,” to comply with five other enumerated criteria: 4 (1) equality of population between districts; (2) geographic compactness and contiguity; 5 (3) respect for communities of interest; (4) respect for visible geographic features, city, 6 town and county boundaries, and undivided census tracts; and (5) competitiveness, if it 7 would “create no significant detriment to the other goals.” Id. The map approved by the 8 Commission after the first round of these adjustments was only a draft map, which was 9 required to undergo public comment and a further round of revisions before final 10 11 approval. Id. § 1(16). Before beginning to adjust the grid map, the Commission received presentations 12 on the Voting Rights Act from its attorneys, its mapping consultant, and its Voting Rights 13 Act consultant Bruce Adelson. Adelson previously worked for the Department of Justice, 14 where he led the team that had reviewed and objected to the first legislative map 15 submitted by Arizona for preclearance in 2002. Adelson gave the Commission an 16 overview of the preclearance process. He explained that determining whether a minority 17 population had the ability to elect was a complex analysis that turned on more than just 18 the percentage of minorities in a district. He explained, for example, that in reviewing 19 Arizona’s submission from the prior decade, the Department had found a district where it 20 concluded that minorities had an ability to elect even though they made up only between 21 30 and 40 percent of the population. Adelson informed the Commission at that time that 22 he believed the 2002 map that was ultimately approved had nine districts in which 23 minorities had an ability to elect their preferred candidates. Because the preclearance 24 process focused on making sure there was no retrogression, that number was the 25 benchmark, meaning that the new plan had to achieve at least the same number of ability- 26 to-elect districts. 27 One of the most important factors the Department of Justice considers in 28 determining the ability to elect in a district is its level of racial polarization, which is a - 16 - 1 measure of the voting tendencies of whites and minorities in elections pitting a white 2 candidate against a minority candidate. A racial polarization study is a statistical analysis 3 of past election results to determine the level of racial polarization in a district. When it 4 first started considering potential benchmark districts, the Commission did not have any 5 formal racial polarization analysis at its disposal and relied primarily on demographic 6 data from the 2010 census. The Commission eventually retained Professor Gary King, a 7 social scientist at Harvard University recommended by the Commission’s counsel, to 8 conduct a racial polarization analysis. 9 Until the Commission had a formal racial polarization analysis, it often used what 10 it called the “Cruz Index” to assess whether voters in an area might support a Hispanic 11 candidate. Devised by Commissioners McNulty and Stertz, the Cruz Index used data from 12 the 2010 election for Mine Inspector, a statewide race pitting Joe Hart, a Republican, 13 non-Hispanic white (or Anglo) candidate, against Manuel Cruz, a Democrat, Hispanic 14 candidate. The Cruz Index, sometimes described by commissioners and staff as a “down 15 and dirty” measure, was not intended to be the Commission’s only analysis of cohesion in 16 minority voting in proposed districts, but rather a rough proxy until the Commission had 17 formal racial polarization analysis. In the end, however, the voting pattern estimates 18 derived from the Cruz Index wound up corresponding closely to the voting pattern 19 estimates King derived from his formal statistical analysis. 20 To explore possible adjustments to the grid map, the commissioners could either 21 direct the mapping consultant to create a map with a certain change or use mapping 22 software to make changes themselves. They referred to these maps as “what if” maps 23 because the maps simply showed possible line changes that the Commission might 24 choose to incorporate into the draft map. Willie Desmond was the Strategic Telemetry 25 employee with primary responsibility for assisting commissioners with the mapping 26 software or creating “what if” maps at their direction. 27 28 The Commission originally operated on the assumption that it had to create nine ability-to-elect districts, based on Adelson’s report that there were nine benchmark - 17 - 1 districts. As a result, the earliest “what if” maps focused on creating nine minority 2 ability-to-elect districts. Commissioner Freeman, for example, directed Desmond to 3 create several maps that would create nine ability-to-elect districts. 4 Soon, however, the Commission began considering the possibility that there might 5 be ten benchmark districts. Counsel advised that there were some districts without a 6 majority-minority population that had a history of electing minority candidates, such as 7 District 23 from the 2002 legislative map. Counsel further explained that, even though 8 there were seven majority-minority benchmark districts and two to three other districts 9 where minorities did not make up the majority, they nonetheless might be viewed as 10 having the ability to elect. Because it was uncertain how many benchmark and 11 ability-to-elect districts the Department of Justice would determine existed, counsel 12 advised that creating ten districts would increase the odds of getting precleared on the 13 first attempt. 14 The Commission worked to make Districts 24 and 26 ones in which, despite 15 lacking a majority of the population, Hispanics could elect candidates of their choice. At 16 this point, the Commission was still relying on the Cruz Index to predict minority voting 17 patterns in proposed districts. As the Commission explored shifting boundaries to create 18 ability-to-elect districts, their mapping consultant apprised the Commission of the effects 19 of the shifts on various statistics, such as minority voting population, the Cruz Index, and 20 the deviation from average district population. Counsel advised the Commission that 21 some population disparity was permissible if it was a result of compliance with the 22 Voting Rights Act. 23 On October 10, 2011, the Commission approved a draft legislative map on a 4-1 24 vote, with all but Commissioner Stertz voting in favor of the map. That map had ten 25 districts identified by the Commission as minority ability-to-elect districts. 26 G. 27 The Arizona Constitution prescribes at least a thirty-day comment period after the 28 The Effort to Remove Chairwoman Mathis adoption of the draft map. Ariz. Const. art. IV, pt. 2, § 1(16). The Commission did not - 18 - 1 begin working on the final map until late November, however, because of a delay 2 resulting from an effort to remove Chairwoman Mathis from the Commission. 3 On October 26, Governor Janice Brewer sent a letter to the Commission alleging it 4 had committed “substantial neglect of duty and gross misconduct in office” for, among 5 other things, the manner in which it selected the mapping consultant. On November 1, the 6 Governor’s office informed Chairwoman Mathis that it would remove her from the 7 Commission for committing gross misconduct in office, conditioned upon the 8 concurrence of two-thirds of the Arizona Senate. The Arizona Constitution permits the 9 governor to remove a member of the Commission, with concurrence of two-thirds of the 10 Senate, for “substantial neglect of duty” or “gross misconduct in office.” Ariz. Const. art. 11 IV, pt. 2, § 1(10). After the Senate concurred in the removal of Chairwoman Mathis in a 12 special session, the Commission petitioned the Arizona Supreme Court for the 13 reinstatement of Chairwoman Mathis on the basis that the Governor had exceeded her 14 authority under the Arizona Constitution. Ariz. Indep. Redistricting Comm’n v. Brewer, 15 275 P.3d 1267, 1270 (Ariz. 2012). On November 17, that court ordered the reinstatement 16 of Chairwoman Mathis, concluding that the Governor did not have legal cause to remove 17 her. Id. at 1268, 1276–78. 18 H. 19 On November 29, the Commission began working to modify the draft map to The Final Map 20 create the final map it would submit to the Department of Justice. Because of the delay 21 caused by the effort to remove Chairwoman Mathis, the Commission felt under pressure 22 to finalize its work in time to permit election officials and prospective candidates to 23 prepare for the 2012 elections, knowing that the preclearance process would also take 24 time. 25 The Commission received a draft racial polarization voting analysis prepared by 26 King and Strasma. According to the draft analysis, minorities would be able to elect 27 candidates of their choice in all ten proposed ability-to-elect districts in the draft map. 28 The Commission received advice from its attorneys and consultants as to the - 19 - 1 importance of presenting the Department of Justice with at least ten ability-to-elect 2 districts. Adelson said that, based on the information he had received since his earlier 3 assessment, he believed the Department would conclude that there were ten benchmark 4 districts. He also emphasized that, due to the uncertainty in determining what constitutes 5 a benchmark district, the Department might determine there were more benchmark 6 districts than what the Commission had concluded. Counsel advised the Commission that 7 it would be “prudent to stay the course in terms of the ten districts that are in the draft 8 map and look to . . . strengthen them if there is a way to strengthen them.” 9 The Commission also received advice that it could use population shifts, within 10 certain limits, to strengthen these districts. Adelson advised the Commission that 11 underpopulating minority districts was an acceptable tool for complying with the Voting 12 Rights Act, so long as the maximum deviation remained within ten percent. According to 13 Adelson, underpopulating districts to increase the proportion of minorities was an 14 “accepted redistricting tool” and something that the Department of Justice looked at 15 favorably when assessing compliance with Section 5. According to Strasma, 16 underpopulation could strengthen the districts in several ways. First, it could increase the 17 percentage of minority voters in a district. Second, it could account for expected growth 18 in the Hispanic districts, which might otherwise become overpopulated in the decade 19 following the implementation of a new map. 20 The Commission directed Strasma and Adelson to look for ways to strengthen the 21 ability-to-elect districts and report back. At a subsequent meeting, Strasma, Adelson, and 22 Desmond presented a number of options for improving the districts along with the 23 trade-offs associated with those changes. Strasma identified Districts 24 and 26 in 24 particular as districts that might warrant further efforts to strengthen the minority ability 25 to elect. Doing so would increase the likelihood that the Department of Justice would 26 recognize those districts as ability-to-elect districts and thus the likelihood that the plan 27 would obtain preclearance. 28 The Commission adopted a number of changes to Districts 24 and 26, including - 20 - 1 many purportedly aimed at strengthening the minority population’s ability to elect. 2 Between the draft map and final map, the Hispanic population in District 24 increased 3 from 38.6 percent to 41.3 percent, and the Hispanic voting-age population increased from 4 31.8 percent to 34.1 percent. In District 26, the Hispanic population increased from 36.8 5 percent to 38.5 percent, and the Hispanic voting-age population increased from 30.4 6 percent to 32 percent. 7 A consequence of these changes was an increase in population inequality. District 8 24’s population decreased from 0.2 percent above the ideal population to 3 percent below. 9 District 26’s population increased from 0.1 percent above the ideal population to 0.3 10 percent above. 11 Commissioner McNulty asked Desmond to explore possibilities for making either 12 District 8 or 11 more competitive. Desmond presented an option to the Commission that 13 would have made District 8 more competitive. The Republican commissioners expressed 14 opposition to the proposed change. Commissioner Stertz argued that the change favored 15 Democrats in District 8 while “hyperpacking” Republicans into District 11. 16 Commissioner Freeman argued that competitiveness should be applied “fairly and 17 evenhandedly” across the state rather than just advantaging one party in a particular 18 district. The Republican commissioners were correct that the change would necessarily 19 favor Democratic electoral prospects given that the voter registration in the existing 20 versions of both Districts 8 and 11 favored Republicans and that Commissioner McNulty 21 did not propose any corresponding effort to make any Democratic-leaning districts more 22 competitive. Commissioner McNulty was absent from the meetings in which these initial 23 discussions occurred, but Commissioner Herrera noted that competitiveness was one of 24 the criteria the Commission was required to consider and expressed support for the 25 change. 26 Commissioner McNulty asked Desmond to try a few other ways of shifting the 27 lines between Districts 8 and 11, one of which would have kept several communities with 28 high minority populations together in District 8. Commissioner McNulty, noting that the - 21 - 1 area had a history of having an opportunity to elect, raised the possibility that the change 2 might also preserve that opportunity. Adelson opined that, if the minority population of 3 District 8 were increased slightly, the Commission might be able to present it to the 4 Department of Justice as an eleventh opportunity-to-elect district, which would 5 “unquestionably enhance the submission and enhance chances for preclearance.” Counsel 6 suggested that having another possible ability-to-elect district could be helpful because 7 District 26 was not as strong of an ability-to-elect district as the other districts. 8 9 District 8 contained many of the same concentrations of minority populations as the district identified as District 23 in the previous decade’s plan. The comparable district 10 in that region of the state had a history of electing minority candidates prior to the 2002 11 redistricting cycle. In 2002, the Department of Justice identified that district as one of the 12 reasons why the Commission did not obtain preclearance of its first proposed plan in that 13 cycle. Although the Commission later argued to the Department of Justice in its 2012 14 submission that the minorities could not consistently elect their candidate of choice in that 15 district between 2002 and 2012, several minority candidates had been elected to the state 16 legislature from the district in that time period. 17 The Commission voted 3-2 to implement Commissioner McNulty’s proposed 18 change into the working map and send it to Dr. King for further analysis, with the 19 Republican commissioners voting against. This was the only change order that resulted in 20 a divided vote. 21 This change order also affected the population count of Districts 11, 12, and 16. 22 The order changed the deviation from ideal population from 1.5 percent to -2.3 percent in 23 District 8, from 1.9 percent to 0.3 percent in District 11, from 1.7 percent to 4.3 percent in 24 District 12, and from 1.9 percent to 4.8 percent in District 16. Because of subsequent 25 changes, the population deviations in these districts in the final map was -2.2 percent for 26 District 8, 0.1 percent for District 11, 4.1 percent for District 12, and 3.3 percent for 27 District 16. Therefore, the change in population deviation for each district that is both 28 attributable to Commissioner McNulty’s change order and that actually remained in the - 22 - 1 final map was an increase in deviation of 0.7 percent for District 8, a decrease in 2 deviation of 1.6 percent for District 11, an increase of 2.4 percent for District 12, and an 3 increase in deviation of 1.4 percent for District 16. 4 These changes increased the percentage of Hispanic population in District 8 from 5 25.9 percent in the draft map to 34.8 percent in the final map, with Hispanic voting-age 6 population from 22.8 percent to 31.3 percent. The Commission ultimately concluded, 7 however, that while District 8 came closer to constituting a minority ability-to-elect 8 district than the previous District 23, it did not ensure minority voters the ability to elect 9 candidates of their choice. The changes were nonetheless retained in the final map. 10 11 12 The Commission approved the final legislative map on January 17, 2012, on a 3-2 vote, with the Republican commissioners voting against. On February 28, 2012, the Commission submitted its plan to the Department of 13 Justice for preclearance purposes. In its written submission, the Commission argued that 14 the benchmark plan contained seven ability-to-elect districts, comprised of one Native 15 American district and six Hispanic districts. The Commission argued that the new map 16 was an improvement over the benchmark plan, as the new map contained ten districts 17 (one Native American district and nine Hispanic districts) in which a minority group had 18 the opportunity to elect the candidate of its choice. The Commission also noted that while 19 District 8 was not an ability-to-elect district, its performance by that measure was 20 improved over its predecessor, Benchmark District 23. 21 On April 26, the Department of Justice approved the Commission’s map. 22 I. 23 As noted previously and explained in more detail below, at 41–44, we conclude as The Motivation for the Deviations 24 a matter of law that the burden of proof is on plaintiffs. To prevail, plaintiffs must prove 25 that the population deviations were not motivated by legitimate considerations or, 26 possibly, if motivated in part by legitimate considerations, that illegitimate considerations 27 28 - 23 - 1 predominated over legitimate considerations.7 We assume that seeking partisan advantage 2 is not a legitimate consideration, and we conclude, as discussed at 44–49, that compliance 3 with the Voting Rights Act is a legitimate consideration. 4 We find that plaintiffs have not satisfied their burden of proof. In particular, we 5 find that the deviations in the ten districts submitted to the Department of Justice as 6 minority ability-to-elect districts were predominantly a result of the Commission’s 7 good-faith efforts to achieve preclearance under the Voting Rights Act. Partisanship may 8 have played some role, but the primary motivation was legitimate. 9 With respect to the deviations resulting from Commissioner McNulty’s change to 10 District 8 between the draft map and the final map, we find that partisanship clearly 11 played some role. We also find, however, that legitimate motivations to achieve 12 preclearance also played a role in the Commission’s decision to enact the change to 13 District 8. 14 We acknowledge that it is difficult to separate out different motivations in this 15 context. That is particularly true in this instance because the cited motivations pulled in 16 exactly the same direction. As a practical matter, changes that strengthened minority 17 ability-to-elect districts were also changes that improved the prospects for electing 18 Democratic candidates. Those motivations were not at cross purposes. They were entirely 19 parallel. 20 The Cruz Index, used by the commissioners in considering changes to the map 21 aimed at strengthening minority districts, illustrates the overlap of these two motivations. 22 It applied results from an election contest between a Hispanic Democrat and a white, non- 23 Hispanic (Anglo) Republican. The commissioners used votes for candidate Cruz to reflect 24 25 26 27 28 7 As discussed below, at 42–43 n. 10, we have not reached agreement on the legal standard to be applied. A majority of the court has concluded that plaintiffs have failed to demonstrate that illegitimate considerations predominated over legitimate ones. Necessarily, therefore, plaintiffs have not proven that illegitimate considerations were the actual and sole reasons for the population deviations. By either test adopted by the two judges that make up a majority of the court, plaintiffs have failed to carry their burden. - 24 - 1 a willingness to vote for a Hispanic candidate—which was itself a proxy for the ability of 2 the Hispanic population to elect its preferred candidate, regardless of that candidate’s 3 ethnicity—but the voters could have been motivated, as much or even more, to vote for a 4 Democrat. Similarly, voters who voted for Cruz’s opponent may have been willing to 5 vote for a Hispanic candidate but were actually motivated to vote for a Republican. In 6 using the Cruz Index to adjust district boundaries in order to strengthen the minority 7 population’s ability to elect its preferred candidate, the commissioners used a measure 8 that equally reflected the ability to elect a Democratic candidate. 9 The practical correlation between these two motivations was confirmed by the 10 results of the 2012 election, conducted under the map that is the subject of this lawsuit. 11 The legislators elected from districts identified by the Commission as minority ability-to- 12 elect districts were all Democrats. As noted above, 19 of the 30 legislators elected from 13 those districts were Hispanic or Native American. 14 It is highly likely that the members of the Commission were aware of this 15 correlation. Individuals sufficiently interested in government and politics to volunteer to 16 serve on the Commission and to contribute hundreds of hours of time to the assignment 17 would be aware of historic voting patterns. If they weren’t aware before, then they would 18 necessarily have become aware of the strong correlation between minority ability-to-elect 19 districts and Democratic-leaning districts in the course of their work. 20 That knowledge could open the door to partisan motivations in both directions. If 21 an individual member of the Commission were motivated to favor Democrats, that could 22 have been accomplished under the guise of trying to strengthen minority ability-to-elect 23 districts. Similarly, a member motivated to favor Republicans could have taken advantage 24 of the process to concentrate minority population into certain districts in such a way as to 25 leave a larger proportion of Republicans in the remaining districts. 26 Recognizing the difficulty of separating these two motivations, we find that the 27 Commission was predominantly motivated by a legitimate consideration, in compliance 28 with the Voting Rights Act. - 25 - 1 All five of the commissioners, including the Republicans, put a priority on 2 achieving preclearance from the Department of Justice on the first try. To maximize the 3 chances of achieving that goal, the Commission’s counsel and consultants recommended 4 creating ten minority ability-to-elect districts. There was not a partisan divide on the 5 question of whether ten districts was an appropriate target. 6 After working to create ten such districts in the draft map, including Districts 24 7 and 26, all but Commissioner Stertz voted for the draft map. Commissioner Stertz’s 8 reason for voting against the draft map, however, was not that he objected to the 9 population deviations resulting from the creation of the ability-to-elect districts. Rather, 10 he felt that the Commission had not paid sufficient attention to the other criteria that the 11 Arizona Constitution requires the Commission to consider, such as keeping communities 12 of interest together. 13 In short, the bipartisan support for the changes leading to the population deviations 14 in the draft map undermines the notion that partisanship, rather than compliance with the 15 Voting Rights Act, was what motivated those deviations. 16 We also find that the additional population deviation in these ten districts resulting 17 from changes occurring between the passage of the draft map and the final map were 18 primarily the result of efforts to obtain preclearance, some reservations by the Republican 19 commissioners notwithstanding. After the draft map was completed, both Republican 20 commissioners expressed concern about further depopulating minority ability-to-elect 21 districts. At the hearing in which the Commission began work on the final map, 22 Commissioner Stertz said that it was his “understanding that the maps as they are 23 currently drawn do meet [the Voting Rights Act] criteria,” and that he didn’t want to 24 “overpack Republicans into Republican districts . . . all being done on the shoulders of 25 strengthening [Voting Rights Districts].” Commissioner Freeman shared Commissioner 26 Stertz’s concerns. 27 But the Commission’s counsel and consultants responded that there was 28 uncertainty as to whether the map would preclear without strengthening those districts. - 26 - 1 And despite their initial reservations, the Republican commissioners did not vote against 2 any of the change orders further strengthening the minority ability to elect in those 3 districts. Commissioner Stertz even expressed support for these changes. In a public 4 hearing that took place after the Commission made additional changes to the Voting 5 Rights Act districts, Commissioner Stertz said that apart from a change order affecting 6 Districts 8 and 11—which were not ability-to-elect districts and which we discuss 7 next—he was “liking where the map has gone” and thought there was “a higher level of 8 positive adjustments that have been made than the preponderance of the negative design 9 of Districts 8 and 11.” At trial, Commissioner Stertz testified that he relied on counsel’s 10 advice that ten benchmark districts were necessary, and that he thought those ten districts 11 were “better today than when they were first developed in draft maps.” The bipartisan 12 support for the goal of preclearance, and the bipartisan support for the change orders 13 strengthening these ten districts to meet that goal, support the finding that preclearance 14 motivated the deviations. 15 We make this finding despite plaintiffs’ contention that the selection of counsel 16 and mapping consultant prove that Chairwoman Mathis was biased towards Democratic 17 interests. We agree that giving Strategic Telemetry a perfect score is difficult to justify 18 and reflects Mathis taking an ends-oriented approach to the process to select her preferred 19 firm, Strategic Telemetry. 20 But even if Chairwoman Mathis preferred Strategic Telemetry for partisan reasons 21 rather than the neutral reasons she expressed at the time, it would not prove that 22 partisanship was the reason she supported the creation of ability-to-elect districts. As we 23 have discussed, strong evidence shows that preclearing on the first attempt was a goal 24 shared by all commissioners, not just Chairwoman Mathis. 25 With respect to the changes to District 8 occurring between the draft map and final 26 map, the evidence shows that partisanship played some role. Though Commissioner 27 McNulty first presented the possible changes to Districts 8 and 11 as an opportunity to 28 make District 8 into a more competitive district, that simply meant making District 8 into - 27 - 1 a more Democratic district. Because Districts 8 and 11 both favored Republicans before 2 the proposed change, any shift in population between the two districts to make one of 3 them more “competitive” necessarily increased the chances that a Democrat would win in 4 one of those districts. In fact, in a close senate race in the newly drawn District 8, the 5 Democrat did win. We might view the issue differently had Commissioner McNulty 6 proposed to create a series of competitive districts out of both Democrat- and 7 Republican-leaning districts, or applied some defined standards evenhandedly across the 8 state. Instead, she sought to make one Republican-leaning district more amenable to 9 Democratic interests. Moreover, the Commission was well aware of the partisan 10 implications of the proposed change before adopting it. Both Republican commissioners 11 made their opposition to the change, on the basis that it packed Republican voters into 12 District 11 to aid Democratic prospects in District 8, known early on. 13 Nonetheless, while partisanship played a role in the increased population deviation 14 associated with changing District 8, so too did the preclearance goal play a part in 15 motivating the change. While Commissioner McNulty originally suggested altering 16 Districts 8 and 11 for the sake of competitiveness, she subsequently suggested that 17 District 8 could become an ability-to-elect district. Consultants and counsel endorsed this 18 idea, in part because they had some doubts that District 26 would offer the ability to elect. 19 It was not until after the consultants and counsel suggested pursuing these changes for the 20 sake of preclearance that Chairwoman Mathis endorsed the idea. While the Commission 21 ultimately concluded that it could not make a true ability-to-elect district out of District 8, 22 the submission to the Department of Justice did cite the changes made to that district’s 23 boundaries in arguing that the plan deserved preclearance. Compliance with the Voting 24 Rights Act was a substantial part of the motivation for the treatment of District 8. 25 III. Resolution of Pretrial Motions 26 The parties filed several motions prior to trial that this court disposed of summarily 27 in its order dated February 22, 2013, with an opinion explaining the bases of the rulings to 28 follow. Before we turn to our conclusions of law on the merits of the case, we explain our - 28 - 1 rulings on those motions. 2 A. 3 Defendants’ first motion for judgment on the pleadings sought two forms of relief. 4 First, defendants requested dismissal of the commissioners based on legislative immunity. 5 Second, defendants requested dismissal of plaintiffs’ state-law claim as barred by the 6 Eleventh Amendment. We now explain why both forms of relief were granted. 7 8 9 First Motion for Judgment on the Pleadings 1. Standard of Judgment on the Pleadings Judgment on the pleadings is appropriate when there is “no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Fleming v. 10 Pickard, 581 F.3d 922, 925 (9th Cir. 2009). In assessing defendants’ motion, we 11 “accept[ed] all factual allegations in the complaint as true and construe[d] them in the 12 light most favorable to the non-moving party.” Id. 13 14 2. The Commissioners Were Immune from Suit It was not entirely clear from the complaint but plaintiffs’ claims against the 15 commissioners appeared to be based solely on the commissioners’ official acts. That is, 16 plaintiffs’ claims rested on the commissioners’ actions in connection with the adoption of 17 a particular final legislative map. Plaintiffs’ federal claim sought relief pursuant to 42 18 U.S.C. § 1983 based on their belief that the adoption of that map constituted a violation of 19 the Equal Protection Clause of the Fourteenth Amendment. The Commission argued 20 legislative immunity forbade plaintiffs from pursuing this claim against the 21 commissioners. 22 “The Supreme Court has long held that state and regional legislators are absolutely 23 immune from liability under § 1983 for their legislative acts.” Kaahumanu v. Cnty. of 24 Maui, 315 F.3d 1215, 1219 (9th Cir. 2003). This immunity applies to suits for money 25 damages as well as requests for injunctive relief. See Supreme Court of Va. v. Consumers 26 Union of the United States, Inc., 446 U.S. 719, 734 (1980). Litigants often disagree over 27 whether legislative immunity applies to a particular individual or to particular acts 28 performed by an individual occupying a legislative office. Kaahumanu, 315 F.3d at 1219 - 29 - 1 (legislative immunity applies only to “legislative rather than administrative or executive” 2 actions). But plaintiffs effectively conceded the commissioners qualified as legislators 3 performing legislative acts. So instead of the normal lines of attack, plaintiffs argued that 4 Ex parte Young, 209 U.S. 123 (1908), prevented legislative immunity from requiring 5 dismissal of the commissioners. Plaintiffs also claimed their request for attorneys’ fees 6 permitted them to maintain suit against the commissioners. Neither argument was 7 convincing. 8 Ex parte Young creates a legal fiction to avoid suits against state officials from 9 being barred by the Eleventh Amendment. See, e.g., Miranda B. v. Kitzhaber, 328 F.3d 10 1181, 1189 (9th Cir. 2003) (per curiam) (“[T]he doctrine of Ex parte Young avoids an 11 Eleventh Amendment bar to suit . . . .”). That fiction permits only “actions for prospective 12 declaratory or injunctive relief against state officers in their official capacities for their 13 alleged violations of federal law.” Coal. to Defend Affirmative Action v. Brown, 674 F.3d 14 1128, 1134 (9th Cir. 2012). Plaintiffs did not cite any case where a court employed the 15 fiction of Ex parte Young to avoid the otherwise applicable bar of legislative immunity. 16 And existing case law reaches the opposite conclusion. See, e.g., Scott v. Taylor, 405 F.3d 17 1251, 1257 (11th Cir. 2005) (finding legislative immunity barred claim for prospective 18 injunctive relief). Thus, Ex parte Young was not sufficient to overcome the bar of 19 legislative immunity. 20 Even if the court had agreed Ex parte Young might permit the naming of the 21 commissioners in certain circumstances, it was particularly inapt here. Pursuant to Ex 22 parte Young, the “state official sued ‘must have some connection with the enforcement of 23 the act.’” Coal. to Defend Affirmative Action, 674 F.3d at 1134 (quoting Ex parte Young, 24 209 U.S. at 157). That connection must be “fairly direct” and a “generalized duty to 25 enforce state law or general supervisory power over the persons responsible for enforcing 26 the challenged provision” is not sufficient. L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 27 (9th Cir. 1992). Accordingly, Ex parte Young does not allow a plaintiff to sue a state 28 official who cannot provide the relief the plaintiff actually seeks. See id. - 30 - 1 Under Arizona’s redistricting process, the commissioners have no direct 2 connection to implementing the final legislative map nor do they have any supervisory 3 power over those state officials implementing the final legislative map. Rather, it is the 4 Secretary of State who enforces the map. See Ariz. Minority Coal. for Fair Redistricting 5 v. Ariz. Indep. Redistricting Comm’n, 121 P.3d 843, 857 (Ariz. Ct. App. 2005) (per 6 curiam) (“Once the Commission certifies the maps, the secretary of state must use them in 7 conducting the next election.”). Plaintiffs named the Secretary of State as a defendant and 8 the Secretary of State conceded he is responsible for enforcing the map. In light of this, 9 assuming Ex parte Young allows suit against the commissioners in some circumstances, 10 11 the present suit did not qualify. Finally, plaintiffs argued the commissioners’ “presence [was] essential to 12 maintaining section 1983 relief, which includes an award of attorneys’ fees under 42 13 U.S.C. § 1988.” In other words, plaintiffs wanted to keep the commissioners as 14 defendants to ensure the possibility of plaintiffs recovering their attorneys’ fees. Plaintiffs 15 did not cite, and the court could not find, any authority permitting the issue of fees to 16 determine the propriety of keeping certain defendants in a suit. Moreover, plaintiffs’ issue 17 regarding fees was a problem of their own creation in that the Secretary of State 18 undoubtedly was an appropriate defendant and plaintiffs could have sought fees from 19 him. At oral argument, however, plaintiffs’ counsel conceded the complaint did not seek 20 an award of fees from the Secretary of State.8 The fact that plaintiffs made a choice not to 21 seek fees against one party from whom they could clearly obtain fees was not a sufficient 22 basis to allow plaintiffs to continue this suit against inappropriate parties. 23 Neither Ex parte Young nor the impossibility of plaintiffs collecting fees from the 24 remaining defendants justified keeping the commissioners as defendants. Therefore, the 25 commissioners were entitled to judgment on the pleadings. 26 8 27 28 The portion of the complaint referenced during oral argument seeks fees “against the IRC only.” In light of this language, it is unclear why plaintiffs believed they had requested fees from the individual commissioners. - 31 - 1 3. Plaintiff’s State-Law Claim Was Barred by the Eleventh Amendment 2 In addition to their § 1983 claim, plaintiffs also asserted a state-law claim that the 3 final legislative map “violates the equal population requirement of Ariz. Const. art. 4, pt. 4 2, §1(14)(B).” Defendants moved to dismiss this state-law claim as barred by the 5 Eleventh Amendment pursuant to Pennhurst State School & Hospital v. Halderman, 465 6 U.S. 89 (1984). Plaintiffs did not dispute that a straightforward application of Pennhurst 7 established their state-law claim was barred by the Eleventh Amendment. Instead, 8 plaintiffs argued defendants waived their Eleventh Amendment immunity. Plaintiffs were 9 incorrect. 10 “For over a century now, [the Supreme Court] has consistently made clear that 11 ‘federal jurisdiction over suits against unconsenting States was not contemplated by the 12 Constitution when establishing the judicial power of the United States.’” Sossamon v. 13 Texas, 131 S. Ct. 1651, 1657–58 (2011) (quoting Seminole Tribe of Fla. v. Florida, 517 14 U.S. 44, 54 (1996)). A state may choose to waive its immunity, but the “test for 15 determining whether a State has waived its immunity from federal-court jurisdiction is a 16 stringent one.” Id. at 1658 (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Ed. 17 Expense Bd., 527 U.S. 666, 675 (1999)). That test consists of determining whether “the 18 state’s conduct during the litigation clearly manifest[ed] acceptance of the federal court’s 19 jurisdiction or [was] otherwise incompatible with an assertion of Eleventh Amendment 20 immunity.” Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 759 (9th Cir. 1999). For 21 example, the Ninth Circuit concluded waiver occurred when a state appeared, actively 22 litigated a case, and waited until the first day of trial to claim immunity. Id. at 763. The 23 situation in the present case was significantly different. 24 Plaintiffs filed their original complaint on April 27, 2012. The parties then engaged 25 in protracted pre-answer maneuvers that ended on November 16, 2012, when the court 26 denied defendants’ motion to dismiss. Approximately three weeks later, defendants filed 27 their answer asserting Eleventh Amendment immunity as well as a formal motion seeking 28 judgment on the pleadings based on that immunity. Thus, while the case had been - 32 - 1 pending for over nine months at the time immunity was first asserted, the vast majority of 2 that time was consumed by briefing and deciding a motion to dismiss. There was no 3 meaningful delay between issuance of the order on the motion to dismiss and defendants’ 4 assertion of the Eleventh Amendment. And while defendants might have raised immunity 5 earlier, the actual sequence of events falls short of meeting the “stringent” test for 6 establishing waiver. Sossamon, 131 S. Ct. at 1658. Therefore, defendants were entitled to 7 judgment on the pleadings regarding plaintiffs’ state-law claim. 8 B. 9 Citing Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), 10 defendants moved to stay this case and defer hearing plaintiffs’ federal claim until 11 plaintiffs obtained resolution of state-law issues in state court or, in the alternative, to 12 certify any state-law questions to the Arizona Supreme Court. A majority of the court 13 summarily denied the motion, with Judge Silver dissenting. 14 Motion for Abstention Because “Congress imposed the duty upon all levels of the federal judiciary to 15 give due respect to a suitor’s choice of a federal forum for the hearing and decision of his 16 federal constitutional claims,” Pullman abstention is available only in narrowly limited, 17 special circumstances. Zwickler v. Koota, 389 U.S. 241, 248 (1967). At its core, it 18 “reflect[s] a doctrine of abstention appropriate to our federal system whereby the federal 19 courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous 20 regard for the rightful independence of the state governments’ and for the smooth 21 working of the federal judiciary.” Pullman, 312 U.S. at 501. “It is better practice, in a 22 case raising a federal constitutional or statutory claim, to retain jurisdiction, rather than to 23 dismiss.” Zwickler, 389 U.S. at 244 n.4. Pullman abstention generally is appropriate only 24 if three conditions are met: (1) the complaint “requires resolution of a sensitive question 25 of federal constitutional law; (2) the constitutional question could be mooted or narrowed 26 by a definitive ruling on the state law issues; and (3) the possibly determinative issue of 27 state law is unclear.” Potrero Hills Landfill, Inc. v. Cnty. of Solano, 657 F.3d 876, 888-89 28 (9th Cir. 2011) (quoting Spoklie v. Mont, 411 F.3d 1051, 1055 (9th Cir. 2005)). Proper - 33 - 1 application of these conditions is meant to ensure federal courts defer “to state court 2 interpretations of state law” while avoiding “‘premature constitutional adjudication’ that 3 would arise from ‘interpreting state law without the benefit of an authoritative 4 construction by state courts’.” Id. (quoting Gilbertson v. Albright, 381 F.3d 965, 971 n.6 5 (9th Cir. 2004) (en banc)) (internal quotation marks omitted). 6 When deciding whether to exercise its discretionary equity powers to abstain, a 7 court also must consider that “abstention operates to require piecemeal adjudication in 8 many courts,” possibly “delaying ultimate adjudication on the merits for an undue length 9 of time.” Baggett v. Bullitt, 377 U.S. 360, 378–79 (1964). That delay can work substantial 10 injustice because forcing “the plaintiff who has commenced a federal action to suffer the 11 delay of state court proceedings might itself effect the impermissible chilling of the very 12 constitutional right he seeks to protect.” Zwickler, 389 U.S. at 252. 13 Delay caused by abstention is especially problematic in voting rights cases. 14 Harman v. Forssenius, 380 U.S. 528, 537 (1965). The Ninth Circuit noted in a 15 redistricting case that due to the “special dangers of delay, courts have been reluctant to 16 rely solely on traditional abstention principles in voting cases.” Badham v. U.S. Dist. 17 Court for the N. Dist. of Cal., 721 F.2d 1170, 1173 (9th Cir. 1983). Expressing specific 18 concern about the possibility of a potentially defective redistricting plan being left in 19 place for an additional election cycle, it held that “before abstaining in voting cases, a 20 district court must independently consider the effect that delay resulting from the 21 abstention order will have on the plaintiff’s right to vote.” Id. 22 Given the importance of prompt adjudication of voting rights disputes, we 23 exercised our discretion and decided not to abstain. The three conditions precedent to 24 applying Pullman abstention identified above might have been present here, but we 25 concluded that we should deny the motion without having to make that determination 26 because of the likely delay that would have resulted. 27 28 If we abstained as defendants requested, it was not likely that a resolution could be reached in time to put a new plan in place, if necessary, for the 2014 election cycle. Not - 34 - 1 only are voting rights disputes particularly important, they are also particularly complex. 2 The last round of litigation over redistricting in Arizona, concerning Arizona’s legislative 3 redistricting maps following the 2000 census, commenced in March 2002. See Ariz. 4 Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 208 P.3d 676, 5 682 (Ariz. 2009) (en banc). The state trial court did not issue its decision until January 6 2004, twenty-two months later. See id. The appellate process did not conclude until the 7 Arizona Supreme Court’s final decision in May 2009. Id. at 676. The Commission’s 8 motion for abstention came before us in December 2012. At the time of our decision on 9 the motion, in February 2013, no state court action was pending. Thus, deferring ruling on 10 the federal claim would have delayed adjudication on the merits until a state court action 11 was initiated and concluded, which likely would have precluded relief in time for the 12 2014 election cycle.9 13 Furthermore, we could not resolve the state-law issues as this case no longer 14 included the state-law claim because the State of Arizona’s Eleventh Amendment 15 immunity under Pennhurst precluded relief on that claim in federal court. And, it was also 16 17 18 19 20 21 22 23 24 25 26 27 28 9 This case commenced in April 2012. We set a schedule with the intent that our decision would be filed in time for the 2014 election cycle, even leaving time for review by the Supreme Court. That is why trial was scheduled and held in March 2013, even though the parties requested a later trial date. The subsequent filing by the Supreme Court in June 2013 of its decision in Shelby County v. Holder, 133 S. Ct. 2612 (2013), put that goal in jeopardy. The parties were subsequently ordered to brief the impact of Shelby County and, as illustrated by the dialogue between this opinion and the dissenting opinion, it has taken us some time to determine that impact. When we denied the motion for abstention, however, we did not know that Shelby County was coming. The denial of the motion for abstention was based on our belief that we would reach a conclusion in time for the 2014 election cycle and that it would be highly unlikely that a similarly timely result could be achieved if we abstained in favor of state court adjudication. We note that even with the unanticipated delay to consider the impact of Shelby County, our decision is filed about twenty-four months after the commencement of this action, about on par with the twenty-two months that it took the Arizona trial court to resolve the challenge to the legislative redistricting maps drawn following the 2000 census. We remain of the view that abstaining in favor of state court litigation, which would likely have entailed an appeal following a state trial court decision, would have taken even more time. - 35 - 1 unclear whether any state law issues were implicated in plaintiffs’ remaining federal 2 claim. In sum, this case is unlike the typical case warranting Pullman abstention, where 3 the federal court will necessarily construe a state statute that the state courts themselves 4 have not yet construed in order to decide the sensitive question of whether the state 5 statute violates the federal Constitution. See, e.g., Potrero Hills Landfill, 657 F.3d at 889. 6 Here, by contrast, we did not need to resolve any question of state law as a predicate to 7 deciding the merits of the federal claim. Therefore, we concluded that the special 8 circumstances necessary for exercising discretion to defer ruling on plaintiffs’ federal 9 claim did not exist. 10 As an alternative to their request for abstention, defendants requested the court 11 certify any state-law questions to the Arizona Supreme Court. A basic prerequisite for a 12 court to certify a question to the Arizona Supreme Court is the existence of a pending 13 issue of Arizona law not addressed by relevant Arizona authorities. See, e.g., Seltzer v. 14 Paul Revere Life Ins. Co., 688 F.3d 966, 968 (9th Cir. 2012). In addition, Arizona’s 15 certification statute requires the presence of a state-law question that “may be 16 determinative” of the case. A.R.S. § 12-1861. With the dismissal of plaintiffs’ state-law 17 claim, there was no pending issue of Arizona law in this case. Therefore, the request in 18 the alternative for certification also was denied. 19 C. 20 Prior to discovery, the Commission moved for a protective order on the basis of Motion for Protective Order 21 legislative privilege. The Commission requested that the panel prohibit the depositions of 22 the commissioners, their staff, and their consultants, as well as limit the scope of 23 documents and interrogatories during discovery. We ordered the commissioners, at the 24 time defendants in this case, to inform the court through counsel whether they would 25 exercise legislative privilege if asked questions covered by the privilege. Commissioners 26 Mathis, Herrera, and McNulty informed the court that they would invoke legislative 27 privilege, while Commissioners Freeman and Stertz indicated they would waive it. We 28 later denied the motion for a protective order, and we now explain the basis for doing so. - 36 - 1 Whether members of an independent redistricting commission can withhold 2 relevant evidence or refuse to be deposed on the basis of legislative privilege is an issue 3 of first impression. Neither the Ninth Circuit nor, as far as we can tell, any other court has 4 decided whether members of an independent redistricting commission can assert 5 legislative privilege in a challenge to the redistricting plan they produced. In the present 6 litigation, we conclude that members of the Arizona Independent Redistricting 7 Commission cannot assert a legislative evidentiary privilege. 8 9 State legislators do not have an absolute right to refuse deposition or discovery requests in connection with their legislative acts. In United States v. Gillock, 445 U.S. 360 10 (1980), the Supreme Court held that a state senator could not bar the introduction of 11 evidence of his legislative acts in a federal criminal prosecution. Although Gillock could 12 have claimed protection under the federal Speech or Debate Clause had he been a 13 Member of Congress, the Court refused “to recognize an evidentiary privilege similar in 14 scope to the Federal Speech or Debate Clause” for state legislators. Id. at 366. The Court 15 reasoned that “although principles of comity command careful consideration, . . . where 16 important federal interests are at stake, as in the enforcement of federal criminal statutes, 17 comity yields.” Id. at 373. The Court in Gillock held that no legislative privilege exists in 18 federal criminal prosecutions. It did not opine on the existence or extent of legislative 19 privilege for state legislators in the civil context. 20 The Ninth Circuit has recognized that state legislators and their aides may be 21 protected by a legislative privilege. See Jeff D. v. Otter, 643 F.3d 278, 289–90 (9th Cir. 22 2011). That case did not consider legislative privilege in the redistricting context, 23 however, let alone whether citizen commissioners could assert the privilege. Moreover, 24 its discussion of legislative privilege was limited. The decision did not indicate whether 25 state legislators might assert an absolute legislative privilege in all civil litigation, or 26 whether any privilege state legislators held must yield when significant competing 27 interests exist. 28 Whether or not state legislators might be able to assert in federal court an absolute - 37 - 1 legislative privilege in some circumstances, we do not think that the citizen 2 commissioners here hold an absolute privilege. The Fourth Circuit has recognized, albeit 3 not specifically in any redistricting cases, a seemingly absolute privilege against 4 compulsory evidentiary process for state legislators and other officials acting in a 5 legislative capacity. See EEOC v. Wash. Suburban Sanitary Comm’n, 631 F.3d 174, 6 180–81 (4th Cir. 2011). The purposes underlying an absolute privilege for state legislators 7 are that it “allows them to focus on their public duties by removing the costs and 8 distractions attending lawsuits [and] shields them from political wars of attrition in which 9 their opponents try to defeat them through litigation rather than at the ballot box.” Id. at 10 181. However, these are not persuasive reasons for extending the privilege to appointed 11 citizen commissioners. Unlike legislators, the commissioners have no other public duties 12 from which to be distracted. See Ariz. Const. art. IV, pt. 2, §§ 1(3), (13) (providing that 13 commissioners cannot hold elected office during or for the three years following their 14 service on the Commission). They cannot be defeated at the ballot box because they don’t 15 stand for election. Indeed, the process is not supposed to be governed by what happens at 16 the ballot box. The reason why Arizona transferred redistricting responsibilities from the 17 legislature to the Commission was to separate the redistricting process from politics. See 18 Ariz. Proposition 106 (2000), available at http://www.azsos.gov/election/2000/info 19 /pubpamphlet/prop2-C-2000.htm (on the ballot title of the initiative creating the 20 Commission, stating one purpose behind the law as “ending the practice of 21 gerrymandering”). 22 In addition, to the extent comity is a rationale underlying legislative privilege, the 23 Supreme Court has held that comity can be trumped by “important federal interests.” 24 Gillock, 445 U.S. at 373. The federal government has a strong interest in securing the 25 equal protection of voting rights guaranteed by the Constitution, an interest that can 26 require the comity interests underlying legislative privilege to yield. Cf. Badham, 721 27 F.2d at 1173 (observing that federal courts are more reluctant to abstain in voting rights 28 cases and noting that the “right to vote is fundamental because it is preservative of all - 38 - 1 2 rights” (internal quotations marks and alterations omitted)). For similar reasons, we also refuse to extend a qualified legislative privilege to the 3 commissioners in this case. Some courts have recognized a qualified privilege for state 4 legislators in redistricting cases, in which a balancing test determines whether particular 5 evidence is barred by the privilege. See, e.g., Rodriguez v. Pataki, 280 F. Supp. 2d 89, 6 101 (S.D.N.Y. 2003), aff’d, 293 F. Supp. 2d 302 (S.D.N.Y. 2003). These cases did not 7 involve an independent redistricting commission, however, and several of these cases 8 even suggested that a legislative privilege would not apply to citizen commissioners. See 9 Favors v. Cuomo, 285 F.R.D. 187, 220 (E.D.N.Y. 2012) (concluding that permitting 10 discovery would have minimal chilling effect on future legislative redistricting 11 deliberations because New York had recently passed a law creating an independent 12 redistricting commission composed of non-legislators); Rodriguez, 280 F. Supp. 2d at 101 13 (distinguishing between discovery requests aimed at the legislature itself and those aimed 14 at an advisory redistricting commission composed of legislators and non-legislators, 15 because the latter was “more akin to a conversation between legislators and 16 knowledgeable outsiders”); Marylanders for Fair Representation, Inc. v. Schaefer, 144 17 F.R.D. 292, 301 n.19, 304-05 (D. Md. 1992) (holding that legislators were protected by 18 the privilege, but not citizens serving on a redistricting advisory committee). 19 In determining whether a qualified privilege applies to state legislators, the courts 20 that recognize a qualified privilege often balance the following factors: “(i) the relevance 21 of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the 22 ‘seriousness’ of the litigation and the issues involved; (iv) the role of the government in 23 the litigation; and (v) the possibility of future timidity by government employees who will 24 be forced to recognize that their secrets are violable.” Rodriguez, 280 F. Supp. 2d at 101. 25 These factors weigh heavily against recognizing a privilege for members of an 26 independent redistricting commission. Because what motivated the Commission to 27 deviate from equal district populations is at the heart of this litigation, evidence bearing 28 on what justifies these deviations is highly relevant. In the event that plaintiffs’ claims - 39 - 1 have merit, and that the commissioners were motivated by an impermissible purpose, the 2 commissioners would likely have kept out of the public record evidence making that 3 purpose apparent. See Cano v. Davis, 193 F. Supp. 2d 1177, 1181-82 (C.D. Cal. 2002) 4 (Reinhardt, J., concurring in part and dissenting in part) (“Motive is often most easily 5 discovered by examining the unguarded acts and statements of those who would 6 otherwise attempt to conceal evidence of discriminatory intent.”). The federal interest in 7 protecting voting rights is a serious one, as discussed earlier, and can require comity 8 concerns to yield. 9 Perhaps most importantly, the nature and purpose of the Commission undermines 10 the claim that allowing discovery will chill future deliberations by the Commission or 11 deter future commissioners from serving. See Favors, 285 F.R.D. at 220. The 12 commissioners will not be distracted from other duties because they have no other duties, 13 and their future actions will not be inhibited because they have no future responsibility. 14 See Ariz. Const. art. IV, pt. 2, §§ 1(3), (13). And, as the majority in Marylanders 15 observed: “We . . . deem it extremely unlikely that in the future private citizens would 16 refuse to serve on a prestigious gubernatorial committee because of a concern that they 17 might subsequently be deposed in connection with actions taken by the committee.” 144 18 F.R.D. at 305 n.23. 19 The parties dispute the relevance of some of plaintiffs’ requested discovery. But to 20 the extent that plaintiffs have requested information not relevant to the central disputes in 21 this litigation, the Commission need not rely on legislative privilege for protection. As 22 stated in our order dated February 22, 2013, the court will not permit “discovery that is 23 not central to the federal claims or any other inappropriate burden under Federal Rule of 24 Civil Procedure 26(c).” 25 In conclusion, the rationale supporting the legislative privilege does not support 26 extending it to the members of the Arizona Independent Redistricting Commission in this 27 case. 28 IV. Conclusions of Law - 40 - 1 A. 2 The Equal Protection Clause of the Fourteenth Amendment requires that state Burden of Proof 3 legislative districts “must be apportioned on a population basis,” meaning that the state 4 must “make an honest and good faith effort to construct districts . . . as nearly of equal 5 population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). Some deviation 6 in the population of legislative districts is constitutionally permissible, so long as the 7 disparities are based on “legitimate considerations incident to the effectuation of a 8 rational state policy.” Id. at 579. Compactness, contiguity, respecting lines of political 9 subdivisions, preserving the core of prior districts, and avoiding contests between 10 incumbents are examples of the legitimate criteria that can justify minor population 11 deviations, so long as these criteria are “nondiscriminatory” and “consistently applied.” 12 Karcher v. Daggett, 462 U.S. 725, 740 (1983). 13 Before requiring the state to justify its deviations, plaintiffs must make a prima 14 facie case of a one-person, one-vote violation. By itself, the existence of minor deviations 15 is insufficient to make out a prima facie case of discrimination. Brown v. Thomson, 462 16 U.S. 835, 842 (1983). With respect to state legislative districts, the Supreme Court has 17 said that, as a general matter, a “plan with a maximum population deviation under 10% 18 falls within this category of minor deviations.” Id. at 842. Although courts rarely strike 19 down plans with a maximum deviation of less than ten percent, a maximum deviation 20 below ten percent does not insulate the state from liability, but instead merely keeps the 21 burden of proof on the plaintiff. See Cox v. Larios, 542 U.S. 947 (2004) (summarily 22 affirming the invalidation of a plan with a 9.98 percent maximum population deviation). 23 Because the maximum deviation here is below ten percent, the burden is on 24 plaintiffs to prove that the deviations did not result from the effectuation of legitimate 25 redistricting policies. The primary way in which plaintiffs seek to carry their burden is by 26 showing that the Commission deviated from perfect population equality out of a desire to 27 increase the electoral prospects of Democrats at the expense of Republicans. Plaintiffs 28 argue that partisanship is not a legitimate redistricting policy that can justify population - 41 - 1 deviations. 2 The Supreme Court has not decided whether or not political gain is a legitimate 3 state redistricting tool. See Cox, 542 U.S. at 951 (Scalia, J., dissenting) (noting that the 4 Court has not addressed whether a redistricting plan with a maximum deviation under ten 5 percent “may nevertheless be invalidated on the basis of circumstantial evidence of 6 partisan political motivation”). Because we conclude that the redistricting plan here does 7 not violate the Fourteenth Amendment whether or not partisanship is a legitimate 8 redistricting policy, we need not resolve the question. For the purposes of this opinion, we 9 assume, without deciding, that partisanship is not a valid justification for departing from 10 11 perfect population equality. Even assuming that small deviations motivated by partisanship might offend the 12 Equal Protection Clause, plaintiffs will not necessarily sustain their burden simply by 13 showing that partisanship played some role. The Supreme Court has not specifically 14 addressed what a plaintiff must prove in a one-person, one-vote challenge when 15 population deviations result from mixed motives, some legitimate and some illegitimate. 16 This panel has not reached a consensus on what the standard should be.10 We 17 18 19 20 21 22 23 24 25 26 27 28 10 As expressed in her separate concurring opinion, at 9–11, Judge Silver concludes that plaintiffs must show that the “actual and sole reason” for the challenged population deviation was improper. See Rodriguez v. Pataki, 308 F. Supp. 2d 346, 366 (S.D.N.Y. 2004) (holding that plaintiffs must show that the “deviation results solely from an unconstitutional or irrational state purpose” (emphasis added)). Judge Clifton is not persuaded that the bar ought to be set that high. Some Supreme Court authority suggests that plaintiffs must show that illegitimate criteria at least predominated over legitimate considerations. For example, while government programs that draw classifications on the basis of race are typically subject to strict scrutiny, redistricting plans challenged for racial gerrymandering are not subject to strict scrutiny “if race-neutral, traditional districting considerations predominated over racial ones.” Bush v. Vera, 517 U.S. 952, 964 (1996) (plurality opinion). Requiring a showing that illegitimate criteria predominated over legitimate criteria appears appropriate to him in light of the deference courts afford states in constructing their legislative districts and because multiple motives will frequently arise in any deliberative body. Cf. Miller v. Johnson, 515 U.S. 900, 915–16 (1995) (noting that courts must be “sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus” and afford states the “discretion to exercise the political - 42 - 1 conclude, for purposes of this decision, that plaintiffs must, at a minimum, demonstrate 2 that illegitimate criteria predominated over legitimate criteria. 3 Finally, we reject plaintiffs’ argument that strict scrutiny applies to the extent that 4 the Commission claims that racial motivations drove the deviations from population 5 equality. All of the cases cited in support of this argument involve racial gerrymandering 6 claims. See, e.g., Abrams v. Johnson, 521 U.S. 74 (1997). As plaintiffs concede, this is 7 not a racial gerrymandering case. Nor have plaintiffs specifically articulated how, in the 8 absence of a claim of racial discrimination, strict scrutiny helps their case. Suppose that, 9 applying strict scrutiny, we concluded that the Commission employed race as a 10 redistricting factor in a manner not narrowly tailored to advance a compelling 11 governmental interest. That may establish a racial gerrymandering violation, but it would 12 not establish a one-person, one-vote violation. We decline to reduce plaintiffs’ burden by 13 importing strict scrutiny into the one-person, one-vote context, a context in which the 14 Supreme Court has made clear we owe state legislators substantial deference. See Gaffney 15 v. Cummings, 412 U.S. 735, 749 (1973). 16 In sum, plaintiffs must prove that the deviations were not motivated by legitimate 17 considerations or, if motivated in part by legitimate considerations, that illegitimate 18 considerations predominated over legitimate considerations. Because we have found that 19 the deviations in the Commission’s plan were largely motivated by efforts to gain 20 preclearance under the Voting Rights Act, we turn next to whether compliance with 21 22 23 24 25 26 27 28 judgment necessary to balance competing interests”). Judge Wake, as discussed in his separate opinion, at 24–25, concludes that both the “only motive” and the “predominant motive” standards are unsatisfactory. For decision purposes, a majority of the panel, made up of Judge Clifton and Judge Silver, have concluded that plaintiffs have not demonstrated that partisanship predominated over legitimate redistricting considerations, applying the lower standard favored by Judge Clifton. Though Judge Silver concludes that the standard should be higher, if the predominance standard is not met, the “actual and sole reason” standard cannot be met. For discussion purposes, therefore, this per curiam opinion will speak in terms of the predominance standard. - 43 - 1 Section 5 of the Voting Rights Act is a permissible justification for minor population 2 deviations. 3 B. 4 The Supreme Court has not specifically spoken to whether compliance with the 5 Voting Rights Act is a redistricting policy that can justify minor population deviations. 6 The Court has not provided an exhaustive list of permissible criteria. Among the 7 legitimate criteria it has approved are compactness, contiguity, respecting municipal lines, 8 preserving the cores of prior districts, and avoiding contests between incumbents. 9 Karcher, 462 U.S. at 740. In the context of racial gerrymandering cases, the Court has Compliance with the Voting Rights Act as a Legitimate Redistricting Policy 10 assumed, without deciding, that the Voting Rights Act is a compelling state interest. Vera, 11 517 U.S. at 977 (plurality opinion). 12 We conclude that compliance with the Voting Rights Act is among the legitimate 13 redistricting criteria that can justify minor population deviations. If compliance with the 14 Voting Rights Act is not a legitimate, rational state policy on par with compactness and 15 contiguity, we doubt that the Court would have assumed in Vera that it is a compelling 16 state interest. Neither plaintiffs nor the dissenting opinion have offered a sensible 17 explanation. 18 More importantly, we fail to see how compliance with a federal law concerning 19 voting rights—compliance which is mandatory for a redistricting plan to take 20 effect—cannot justify minor population deviations when, for example, protecting 21 incumbent legislators can. This is, perhaps, our primary disagreement with the dissenting 22 opinion. It too narrowly defines the reasons that may properly be relied upon by a state to 23 draw state legislative districts with wider variations in population. 24 The dissenting opinion correctly notes, at 19–20, that states are required to 25 establish congressional districts of essentially equal population. It acknowledges, as it 26 must, that state legislative districts are not subject to as strict a standard. A state 27 legislative plan may include some variation in district population in pursuit of legitimate 28 interests. - 44 - 1 The dissenting opinion also acknowledges, at 17 & 23, that obtaining preclearance 2 under the Voting Rights Act was a legitimate objective in redistricting. But it contends 3 that pursuit of that objective could not justify even minor variations in population among 4 districts. In practical terms, the dissenting opinion would apparently permit the 5 Commission to consider the preclearance objective only in drawing lines dividing 6 districts of equal sizes. 7 The Supreme Court has made it clear, however, that states have greater latitude 8 when it comes to state legislative districts. The Equal Protection Clause does not require 9 exact equality. In drawing lines for state legislative districts, “[a]ny number of 10 consistently applied legislative policies might justify some variance.” Karcher, 462 U.S. 11 at 740. Obtaining preclearance under the Voting Rights Act appears to us to be as 12 legitimate a reason as other policies that have been recognized, such as avoiding contests 13 between incumbents and respecting municipal lines. 14 Plaintiffs and the dissenting opinion, at 19, attempt to reframe the inquiry, arguing 15 that the text of the Voting Rights Act itself does not specifically authorize population 16 deviations. That is correct; there is no specific authorization for population deviations in 17 the text of the legislation. But neither is there specific, textual authorization for 18 population deviations in any of the other legitimate, often uncodified legislative policies 19 that the Supreme Court has held can justify population deviations. For example, the 20 Supreme Court’s conclusion that compactness can justify population deviations does not 21 turn on the existence of a Compactness Act that specifically authorizes population 22 deviations for the sake of compact districts. The question is not whether the Voting 23 Rights Act specifically authorizes population deviations, but whether seeking 24 preclearance under the Voting Rights Act is a legitimate, rational state goal in the 25 redistricting process. We are satisfied that it is. 26 The dissenting opinion, at 19, goes a step further and argues that the Voting Rights 27 Act itself prohibits any deviation in exact population equality for the purpose of 28 complying with the Voting Rights Act. No court has so held, and we note that plaintiffs - 45 - 1 themselves have alleged that the Arizona redistricting plan violates the Equal Protection 2 Clause, not that it violates the Voting Rights Act. We do not read the Act in the same way 3 that the dissenting opinion does.11 4 Plaintiffs also argue that the Department of Justice does not purport to be able to 5 force jurisdictions to depopulate districts to comply with Section 5. In a document entitled 6 “Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act,” the 7 Department advises: “Preventing retrogression under Section 5 does not require 8 jurisdictions to violate the one-person, one-vote principle.” 76 Fed. Reg. 7470, 7472 (Feb. 9 9, 2011). But the Guidance goes on to make clear that, in the Department’s view, Section 10 5 might in some cases require minor population deviations in state legislative plans. 11 When a jurisdiction asserts that it cannot avoid retrogression because of population shifts, 12 the Department looks to see whether there are reasonable, less retrogressive alternatives, 13 as the existence of these alternatives could disprove the jurisdiction’s assertion that 14 retrogression is unavoidable. For state legislative redistricting, “a plan that would require 15 significantly greater overall population deviations is not considered a reasonable 16 alternative.” Id. (emphasis added). The implication is that the Department would consider 17 a plan with slightly greater population deviation to be a reasonable plan that would avoid 18 retrogression—in other words, the Department might hold a state in violation of Section 5 19 if it could have avoided retrogression with the aid of minor population deviations. To be 20 clear, we do not base our understanding of the law upon the Department’s interpretation, 21 but plaintiffs have cited the Department’s Guidance as supporting its position, and we do 22 23 11 24 25 26 27 28 Similarly, the dissenting opinion contends, at 20, that the Department of Justice “has never required unequal population for preclearance in the 48 years of administering Section 5.” That assertion is not proven. More importantly, it is an irrelevant straw man. For preclearance purposes, any variation in population is a means, not an end. There would never be reason for the Department to “require[] unequal population.” That is not the Department’s goal. The question is whether a state might improve its chances of obtaining preclearance by presenting a plan that includes minor population variations. The evidence presented to us supported that proposition, and neither plaintiffs nor the dissenting opinion deny that fact. - 46 - 1 not agree. In our view, the Department’s Guidance expresses a conclusion that avoiding 2 retrogression can justify minor population deviations. That is our conclusion, as well, 3 based on our own view of the law, separate and apart from the Department’s position. 4 This conclusion is not altered by the Supreme Court’s recent decision in Shelby 5 County v. Holder, 133 S. Ct. 2612 (2013), which was decided after the legislative map in 6 question here was drawn and implemented.12 In Shelby County, the Court held that 7 Section 4(b) of the Voting Rights Act, which contained the formula determining which 8 states were subject to the preclearance requirement, was unconstitutional. Id. at 2631. The 9 Court did not hold that the preclearance requirement of Section 5 was unconstitutional, 10 but its ruling rendered the preclearance requirement inapplicable to previously covered 11 jurisdictions, at least until Congress enacts a new coverage formula that passes 12 constitutional muster. See id. 13 Plaintiffs and the dissenting opinion, at 15–17, argue that this ruling applies 14 retroactively to this case, such that the Commission was not required to obtain 15 preclearance for the legislative map at issue, thereby nullifying the pursuit of preclearance 16 as a justification for population deviations. See Harper v. Va. Dep’t of Taxation, 509 U.S. 17 86 (1993) (requiring that a rule of federal law announced by the Court and applied to the 18 parties in that controversy “be given full retroactive effect by all courts adjudicating 19 federal law”). 20 But that approach reads too much into Shelby County. The Court did not hold that 21 Section 5 of the Voting Rights Act, the section that sets out the preclearance process, was 22 unconstitutional. The Court’s opinion stated explicitly to the contrary: “We issue no 23 holding on § 5 itself, only on the coverage formula.” Shelby Cnty., 133 S. Ct. at 2631. The 24 Court did not hold that Arizona or any other jurisdiction could not be required to comply 25 with the preclearance process, if a proper formula was in place for determining which 26 12 27 28 As noted above, the decision was announced after the trial of this case. We ordered and obtained supplemental briefing from the parties on the impact of the decision on this case. - 47 - 1 jurisdictions are properly subject to the preclearance process. To the contrary, the Court’s 2 opinion expressly faulted Congress for not updating the coverage formula, implying that a 3 properly updated coverage formula that “speaks to current conditions” would withstand 4 challenge. Id. 5 If we had before us a challenge to the coverage formula set forth in Section 4 of 6 the Voting Rights Act, we would unquestionably be expected to apply Shelby County 7 “retroactively,” and we would do so. That is, however, not the issue before us. Neither is 8 the issue before us whether the legislative map violated or complied with the Voting 9 Rights Act. 10 Rather, the issue is whether the Commission was motivated by compliance with 11 that law in deviating from the ideal population. In other contexts, where the issue is not 12 whether the actions of public officials actually complied with the law but instead whether 13 they might have reasonably thought to have been in compliance, we do not expect those 14 public officials to predict the future course of legal developments. 15 For example, in the qualified immunity context, the issue is whether the actions of 16 public officials “could reasonably have been thought consistent with the rights they are 17 alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638 (1987). There, we 18 assess their actions based on law “clearly established” at the time their actions were 19 taken. Id. at 639. Similarly, in the Fourth Amendment context, we decline to apply the 20 exclusionary rule when a police officer conducts a search in reasonable reliance on a later 21 invalidated statute. Illinois v. Krull, 480 U.S. 340, 348–49 (1987). We generally decline 22 to require the officer to predict whether the statute will later be held unconstitutional, 23 unless the statute is so clearly unconstitutional that a reasonable officer would have 24 known so at the time. Id. at 355; see also Davis v. United States, 131 S. Ct. 2419, 25 2431–32 (2011) (noting that even though a new Fourth Amendment rule applies 26 retroactively, “the exclusion of evidence does not automatically follow” because of the 27 good-faith exception). 28 Arizona was not the only state that drew new district lines following the 2010 - 48 - 1 census. The other states and jurisdictions subject to preclearance under the Voting Rights 2 Act engaged in the same exercise. Nothing in Shelby County suggests that all those maps 3 are now invalid, and we are aware of no court that has reached such a conclusion, despite 4 the concern expressed in the dissenting opinion, at 15, that leaving the maps in place 5 “would give continuing force to Section 5.” To repeat, Shelby County did not hold 6 Section 5 to be unconstitutional. Neither did it hold that any effort by a state to comply 7 with Section 5 was improper. 8 In redistricting, we should expect states to comply with federal voting rights law as 9 it stands at the time rather than attempt to predict future legal developments and 10 selectively comply with voting rights law in accordance with their predictions. 11 Accordingly, so long as the Commission was motivated by the requirements of the Voting 12 Rights Act as it reasonably understood them at the time, compliance with the Voting 13 Rights Act served as a legitimate justification for minor population deviations. 14 C. 15 Plaintiffs argue that Districts 8, 24, and 26 could not have been motivated by Application to 2012 Legislative Map 16 compliance with the Voting Rights Act. They argue that only eight ability-to-elect 17 districts existed in the benchmark plan. Because the Commission had created eight 18 ability-to-elect districts even without Districts 8, 24, and 26, and avoiding retrogression 19 only requires creating as many ability-to-elect districts as are in the benchmark plan, 20 plaintiffs argue that the Voting Rights Act could not have motivated the creation of these 21 three districts. In essence, plaintiffs urge us to determine how many ability-to-elect 22 districts were strictly necessary to gain preclearance and to hold that deviations from the 23 creation of purported ability-to-elect districts above that number cannot be justified by 24 Voting Rights Act compliance. 25 This argument runs into several problems. First of all, plaintiffs have not given the 26 court a basis to independently determine that there existed only eight ability-to-elect 27 districts in the benchmark plan. Plaintiffs point to the fact that the Commission argued 28 that there were eight benchmark districts in its submission to the Department of Justice. - 49 - 1 But the submission to the Department was an advocacy document. The Commission was 2 motivated to make the strongest case for preclearance by arguing for a low number of 3 benchmark ability-to-elect districts and a high number of new ability-to-elect districts. 4 The Commission’s consultants and counsel, in public meetings, had advised the 5 Commission that their analysis suggested the existence of ten benchmark districts. The 6 discrepancy between the advice given in meetings and the arguments put forth in the 7 submission to the Department of Justice is not a sufficient basis for the court to conclude 8 that there were only eight ability-to-elect districts in the benchmark plan. Moreover, while 9 plaintiffs criticize elements of the functional analysis performed by the Commission’s 10 consultants, plaintiffs have not provided the court with any functional analysis of their 11 own or from any other source showing which districts provided minorities with the ability 12 to elect in either the benchmark plan or the current plan that they challenge. In short, even 13 if we were inclined to independently determine how many ability-to-elect districts existed 14 in the benchmark plan, plaintiffs have not carried their burden to show that there were 15 only eight. 16 In any event, we need not determine whether the minor population deviations were 17 strictly necessary to gain preclearance. Plaintiffs presented testimony from an expert 18 witness, Thomas Hofeller, to demonstrate that a plan could have been drawn with smaller 19 population deviations. Dr. Hofeller prepared such a map, but he acknowledged that he 20 had not taken other state interests into account, including interests clearly identified as 21 legitimate, nor had he performed a racial polarization or functional analysis, so that map 22 did not necessarily present a practical alternative. Because he concluded, contrary to the 23 Commission and its counsel and consultants, that the benchmark number for minority 24 ability-to-elect districts in the prior plan was only eight (seven Hispanic districts and one 25 Native American district), his belief that his alternative map would have been precleared 26 by the Justice Department was disputed. More importantly, evidence that a map could 27 have been drawn with smaller population deviations does not prove that illegitimate 28 criteria motivated the deviations. See Marylanders for Fair Representation, Inc. v. - 50 - 1 2 Schaefer, 849 F. Supp. 1022, 1035 (D. Md. 1994). Rather, it is enough that the minor population deviations are “based on legitimate 3 considerations.” Reynolds v. Sims, 377 U.S. 533, 579 (1964). In other words, we will 4 invalidate the plan only if the evidence demonstrates that the deviations were not the 5 result of reasonable, good-faith efforts to comply with the Voting Rights Act. We will not 6 invalidate the plan simply because the Commission might have been able to adopt a map 7 that would have precleared with less population deviation if we determine that in 8 adopting its map the Commission was genuinely motivated by compliance with the 9 Voting Rights Act. 10 This approach is in accord both with the deference federal courts afford to states in 11 creating their own legislative districts and the realities of the preclearance process. The 12 Department of Justice does not inform jurisdictions of the number of districts necessary 13 for preclearance ahead of time. Nor could the Commission be certain which districts in 14 any tentative plan would be recognized by the Department as having an ability to elect. 15 These determinations are complex and not subject to mathematical certainty. For us to 16 determine the minimum number of ability-to-elect districts necessary to comply with the 17 Voting Rights Act and then to strike down a plan if minor population deviations resulted 18 from efforts that we concluded were not strictly necessary for compliance would create a 19 very narrow target for the state. It would also deprive states of the flexibility to which the 20 Supreme Court’s one-person, one-vote jurisprudence entitles them in legislative 21 redistricting. See Gaffney v. Cummings, 412 U.S. 735, 749 (1973) (“Nor is the goal of fair 22 and effective representation furthered by making the standards of reapportionment so 23 difficult to satisfy that the reapportionment task is recurringly removed from legislative 24 hands and performed by federal courts”). 25 That deviations from perfect population equality in this case resulted in substantial 26 part because of the Commission’s pursuit of preclearance is evidenced both by its 27 deliberations and by advice given to the Commission by its counsel and consultants. 28 Plaintiffs cite Larios v. Cox for the proposition that advice of counsel is not a defense to - 51 - 1 constitutional infirmities in a redistricting plan. 300 F. Supp. 2d 1320 (N.D. Ga. 2004), 2 aff’d, 542 U.S. 947 (2004). In Larios, state legislators mistakenly believed that any plan 3 with a maximum deviation below ten percent was immune from a one-person, one-vote 4 challenge and then created a plan with a maximum deviation of 9.98 percent deviations in 5 the pursuit of illegitimate objectives. See id. at 1328. In holding that the plan violated the 6 one-person, one-vote principle, the court held that reliance on faulty legal advice did not 7 remedy the constitutional infirmity in the plan. Id. at 1352 n.16. But in Larios, there was 8 no question that the legislature had pursued illegitimate policies. The legislature had 9 taken counsel’s advice to mean that it did not need to have legitimate reasons for 10 deviating. The court held that they did need legitimate reasons for deviating, and the 11 Supreme Court affirmed. 12 Here, by contrast, what motivated the Commission is at issue. Counsel’s advice 13 does not insulate the Commission from liability, but it is probative of the Commission’s 14 intent. That is not to say that reliance on the advice of counsel will in all cases 15 demonstrate the good-faith pursuit of a legitimate objective. The advice might be so 16 unreasonable that the Commission could not reasonably have believed it, or other 17 evidence may show that the Commission was not acting pursuant to the advice. But the 18 Commission’s attorneys gave reasonable advice as to how to pursue what they identified 19 as a legitimate objective, and the Commission appeared to act in accordance with that 20 advice. That is strong evidence that the Commission’s actions were indeed in the pursuit 21 of that objective, one that we have concluded for ourselves was legitimate. 22 With respect to the ten districts presented to the Department of Justice as 23 ability-to-elect districts, including Districts 24 and 26, the evidence before us shows that 24 the population deviations were predominantly based on legitimate considerations. The 25 Commission was advised by its consultants and counsel that it needed to create at least 26 ten districts. Given the uncertainty in determining the number of districts, and that one of 27 the Commission’s highest priorities was to preclear the first time, the Commission was 28 not unreasonable in acting pursuant to this advice. As noted in our findings of fact, the - 52 - 1 target of ten districts was not controversial and had bipartisan support. All 2 commissioners, including the Republican appointees, believed that ten districts were 3 appropriate. 4 A somewhat closer question is presented by the changes to the district boundaries, 5 including Districts 24 and 26, made between the draft map and the final map. The draft 6 racial polarization analysis prepared by King and Strasma indicated that minorities would 7 be able to elect candidates of their choice in all ten proposed ability-to-elect districts in 8 the draft map. Plaintiffs argue that no further changes could be justified by the 9 Commission’s desire to obtain preclearance because the draft map met that goal. The 10 preclearance decision was not going to be made by King and Strasma, however, and the 11 Commission could not be sure what it would take to satisfy the Department of Justice. 12 The Commission was advised to try to strengthen the minority ability-to-elect districts 13 even further, and it was not unreasonable under the circumstances for the Commission to 14 undertake that effort. With regard to the ten ability-to-elect districts, we conclude that 15 plaintiffs have not carried their burden of demonstrating that no legitimate motive caused 16 the deviations or that partisanship predominated. Creation of these districts was primarily 17 a consequence of the Commission’s good-faith efforts to comply with the Voting Rights 18 Act and to obtain preclearance. 19 District 8 presents an even closer question, because the evidence clearly shows that 20 partisanship played some role in its creation. Commissioner McNulty presented the 21 possible change to Districts 8 and 11 as an opportunity to make District 8 into a more 22 competitive district. We do not doubt that the creation of competitive districts is a 23 rational, legitimate state interest. But to justify population deviations, legitimate state 24 criteria must be “nondiscriminatory” and “consistently applied.” Karcher v. Daggett, 462 25 U.S. 725, 740 (1983). Commissioner McNulty’s competitiveness proposal was neither 26 applied consistently nor in a nondiscriminatory fashion. It was applied to improve 27 Democratic prospects in one single district. It was not applied to districts favoring 28 Democrats as well as to those favoring Republicans, so competitiveness cannot justify the - 53 - 1 deviation. We have found that partisanship motivated the Democratic commissioners to 2 support this change, since both expressed support for it before there was any mention of 3 presenting District 8 to the Department of Justice for the sake of preclearance. 4 But while partisanship played some role, plaintiffs have not carried their burden to 5 demonstrate that partisanship predominated over legitimate factors. Because 6 Commissioner McNulty’s change only slightly increased the level of population 7 inequality in District 8 and the other affected districts, let alone the plan as a whole, 8 plaintiffs must make a particularly strong showing to carry their burden. Cf. Karcher, 462 9 U.S. at 741 (“The showing required to justify population deviations is flexible, depending 10 on the size of the deviations, [etc.]”). As noted in our findings, the changes in population 11 inequality from draft map to final map that can be attributed to the vote on Commissioner 12 McNulty’s proposed change is an increase of 0.7 percent deviation in District 8, a 13 decrease of 1.6 percent in District 11, an increase of 2.4 percent in District 12, and an 14 increase of 1.4 percent in District 16. Altogether, the change resulted in a small decrease 15 in deviation in one district and small increases in deviation in three districts. While there 16 is some increase in deviation that can be attributed in part to partisanship, it is not a 17 particularly large increase. 18 We have also found that the preclearance goal played a role in the change to 19 District 8. Consultants and counsel suggested pursuing it for the sake of preclearance, and 20 only then did Chairwoman Mathis endorse the idea. Without her vote, there would not 21 have been a majority to adopt that change. In light of the small deviations resulting from 22 this change order and because legitimate efforts to achieve preclearance also drove the 23 decision, plaintiffs have not proved that partisanship predominated over legitimate 24 reasons for the Commission as a whole. 25 We have concluded that compliance with the Voting Rights Act is a legitimate 26 state policy that can justify minor population deviations, that the deviations in the map in 27 large part resulted from this goal, and that plaintiffs have failed to show that other, 28 illegitimate motivations predominated over the preclearance motivation. Therefore, - 54 - 1 plaintiffs’ challenge to the map under the one-person, one-vote principle fails. 2 V. 3 Conclusion We find in favor of the Commission on plaintiffs’ claim that the Commission’s 4 legislative redistricting plan violated the one-person, one-vote principle of the Equal 5 Protection Clause of the Fourteenth Amendment of the United States Constitution. We 6 order the entry of judgment for the Commission. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 55 -

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