Independent Redistricting Commission

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IRC attorney Mary O’Grady talks about the redistricting process and the Arizona Supreme Court’s decision to reinstate Colleen Mathis as chairwoman of the IRC, after she was removed from office by the Governor with consent of the State Senate.

Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons. The mother of a missing 5-year-old Glendale girl has been arrested. Glendale police announced today that they are charging Jerice Hunter with child abuse in the disappearance of Jahessye Shockley. Police also said that recent evidence indicates that there is little hope of finding that child alive. The Arizona Supreme Court issued a swift ruling in reinstating Redistricting Commission Chair Colleen Mathis who had been removed from office by the governor and Republicans in the state senate. Mary O'Grady represented the commission and Mathis before the court and is here tonight to talk about the case. Good to see you. Thanks for joining us.

Mary O'Grady: Glad to be here.

Ted Simons: Were you surprised this decision happened so quickly?

Mary O'Grady: I wasn't surprised the court quickly issued an order getting to the bottom line of what they were going to do in the case and said they'll issue more detailed decision that explains their reasoning later.

Ted Simons: Oral arguments, what seemed to stick? What were the justices especially interested in?

Mary O'Grady: They were especially interested in the basic jurisdictional issues, particularly the question of whether this was a political question that they really shouldn't get involved with. I wanted to start out by talking about the merits, about why this removal was improper, and right off the bat they said let's talk about jurisdiction. That's what they wanted to talk about first.

Ted Simons: As far as we know, because we only have the short explanation as to why the justices decided as they did, but they mentioned three things. First that they do have jurisdiction, secondly, was this idea that these issues are not only political, they are justiciable. We had a general counsel on, and he emphasized on this fact. What he saw this was as just like an impeachment. Entirely political. Here's what the general counsel had to say a couple weeks ago.

Joe Sciarratta: This is a nonjusticible manner. Under the separation of powers doctrine under the Arizona Constitution, which is Supreme Court has said is the strongest in the United States of America, this decision was entrusted to the governor, and then there is an important but exclusive check on the governor's authority and that is a two-thirds concurrence with the state senate. The governor removed Ms. Mathis, the state senate has concurred, that's where the decision begins and ends.

Ted Simons: I want to get your response on that in a second, but first, the Supreme Court said that's not where this begins and ends.

Hon. Andrew Hurwitz: If the governor said Ms. Chairman of the Independent Redistricting Commission, I do not like the cut of your hair, and I view that as gross misconduct, and two-thirds of the senate, not this senate, but a future senate might, two-thirds of the senate said "I concur" would that decision be reviewable by any court in the state in your view?

Lisa Hauser: No. And here's why. In any of these hypotheticals, including the one that I like to use, the commissioner shows up in a purple dress and the governor doesn't like purple. It all boils down to having some fundamental respect for the fact that the constitution commits this choice, this decision on removal to the governor with the two-thirds concurrence of the senate, those are both important things, even if the governor were to be a rogue sort of individual who might do something that would be very off the wall, we have to assume the senate will function correctly.

Ted Simons: What do you make of that? The idea is absurd, perhaps, dress, hair style, whatever, but the constitution basically does commit this responsibility, this action, to the governor with the senate protecting against a Rogue decision. Does it not?

Mary O'Grady: It does say this is the governor's responsibility, but her responsibility is limited to removing someone for gross misconduct in office or substantial neglect of duty. And it's the court's role to decide whether she complied with that constitutional requirement. And here the court decided that she did not. And there's always judicial review. Unless you get into the extreme circumstance where there is a political question where you can't develop manageable standards where the court could really address it, and that's not the case. These gross misconducts, those are the kinds of things courts decide all the time.

Ted Simons: So this is not necessarily similar to an impeachment?

Mary O'Grady: Absolutely not. They raised a couple of issues in their brief. One, they argued this was like an impeachment and it clearly isn't. Impeachment under the constitution, there's a trial in the senate, there's specific procedures in the constitution. This is a removal by the governor and courts review those all the time. And so we pointed the court to that precedent where the courts do review removals to see if they met the legal standard, and that's what applies here.

Ted Simons: When lawmakers say they can define, they can define gross misconduct as they choose because it is a political process, you and apparently the court are saying, the court still has a role to play in this.

Mary O'Grady: Absolutely. And I think for the questioning, explained why that is the case. If that's not the case the language doesn't have any meaning at all. That you could get someone reviewed because the governor doesn't like the color of her dress. That's not what the constitution requires. It limits the removal to gross misconduct substantial neglect for good reason. To make sure there's some way to remove an officer if there's true corruption, but not to get the politicians involved with the redistricting process, which is why we have Proposition 106 in the first place.

Ted Simons: Is this a situation, do you think where the governor simply did not explain herself clearly enough as for giving reasons for removal? Or, I should say and if that's the case, do you expect another letter from the governor's office?

Mary O'Grady: I hope we don't get another letter, candidly. I hope the commission is able to get on with its work. We did receive just this afternoon before I came here a motion to reconsider that the governor's office has filed with the court. We'll see if the court wants us to respond to that. But we also argue that it's not just a matter of lack of specificity in the letter, it's substantively wrong because she tried to remove Colleen Mathis for mapping decisions. And mapping decisions are the responsibility of the commission. And those can't be the basis for removing a commissioner.

Ted Simons: So when the governor says, her response to the Supreme Court's decision was, quote, "the IRC followed an unconstitutional redistricting process conducting too much of its business behind closed doors, disregarding mapping criteria seemingly at will, they did all of this without explanation." She sees that as gross misconduct, negligence, the whole nine yards.

Mary O'Grady: Well, we would again argue about whether any of that is accurate. The commission has been doing all of its business in public meetings if people look at their website, they'll see video of the meetings, they'll see transcripts of the meetings, we've had more than 30 public meetings on the draft maps and another 20 or 25 when they were developing the maps. Very public process. And all of that process shows that they were looking at the constitutional criteria in trying to develop both the draft congressional and draft legislative map. People may differ as to whether they agree with where the lines landed, but that's the process they were following to develop these drafts.

Ted Simons: Where does that process stand as we speak? Because she's back, correct? She's back on the job. Is the job continuing? What's happening with the commission right now?

Mary O'Grady: The chair is back, she was reinstated Thursday, and so now they're in the process of organizing their next meeting, which will probably be next week at some point, checking with commissioners' schedules, and then they'll get back together and look at all the public comment they've received, and begin figuring out what sort of adjustments they want to make and move forward toward at some point adopting final maps.

Ted Simons: We originally heard they wanted to get something done by Thanksgiving or close to it. Obviously that's not going to happen. Do you have any indication what kind of timetable is at play here? There must be stacks of public comment.

Mary O'Grady: Absolutely. They've had a lot of public comment. And the commissioners have been spending time with that as the process has been proceeding. The chair's statement Friday said that perhaps by Christmas we'll get the maps done, but again, it depends on what the five of them decide to do when they get back together and look at the public comments and the maps and make those decisions.

Ted Simons: Last question, I want as best you can to respond to the criticisms, obviously of the chair woman, but of the commission in general that ignoring requirements regarding protecting communities of interest and emphasizing over everything, it seems, to your critics, competitive districts. And that's not even this whole open meeting situation where some commissioners thought things were done behind closed doors and phone calls. The governor and Republicans say the public has lost trust in the commission. How do you respond to that?

Ted Simons: Well, that's not what I hear when I go out to these public hearings and get the public comment. Yes, there may be criticism of the map, but I don't sense a lack of confidence in the process myself. But people may view it differently, depending on where you sit. In terms of the constitutional factors, they have been looking at all of them including competitiveness. That's definitely been a factor that was considered at this phase of the process as it's supposed to be considered. And then it's just a matter of how that factors into the development of the map.

Ted Simons: If someone were sitting here saying, I've heard all the stuff about the commission, and it sounds like the commission's chairman's bias, "biased czar", I think a lawmaker called her, how would you tell them calm down, the process is working?

Mary O'Grady: I would tell them look at the website and you can see the public input that's been received, and you can see also that these are draft maps. When they were put out for public comment, all the commissioners said, I think we can get public comment on these now, I think we're ready for that, but there may be things I don't like about this and I'd like to see more changes. Some of the Democrats said, "I don't think the legislative districts are competitive enough. I'd like to see that changed." Lots of those comments. So I think that they're drafts and let's see what the final product looks like.

Ted Simons: Good to have you here. Thanks for joining us.

Mary O'Grady: Nice to be here. Thanks for inviting me, Ted.

Mary O'Grady:IRC Attorney;

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