Journalists’ Roundtable

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Three local journalists will discuss the week’s big stories.

TED SIMONS: Coming up next on "Arizona Horizon's" "Journalists' Roundtable," the U.S. Supreme Court rules on a number of cases directly impacting Arizona, including the congressional redistricting process. This as the High Court agrees to hear another Arizona redistricting case next session. Those stories and more on "Arizona Horizon."

"Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

TED SIMONS: Good evening and welcome to "Arizona Horizon's" "Journalists' Roundtable," I'm Ted Simons. Joining us tonight, Mary Jo Pitzl of "The Arizona Republic," Howard Fischer of the "Capitol Media Services," and Luige Del Puerto of the "Arizona Capitol Times." The U.S. Supreme Court rules this week that Arizona's Independent Redistricting Commission has the right to draw new congressional maps. Mary Jo, was this a surprise? We keep hearing everyone and their brother had a map ready to go.

MARY JO PITZL: Well, of course, it's a possibility of redoing the map; there are a lot of people that would like to put in their three cents' worth. This is widely viewed with surprise because after the Supreme Court hearing in early March the conventional wisdom, such as it was, based on the line of questions, said oh, this is going to be a slam dunk for the legislature.

HOWARD FISCHER: That was crucial, because you had a lot of folks saying the elections clause says the legislature of the state is responsible for the time, place and manner of the elections of federal officials. Well in 1789 there was no initiative, no referendum, and a lot of justices including some who ended up on the other side said, how can you conflate Arizona's 1912 constitutional provisions for initiatives with 1789. I think it really was a surprise. I thought it was going to go 5-4, even 6-3 the other way.

LUIGE DEL PUERTO: When this case was starting many people shrugged it off. Many people thought, oh, this is just one of those cases that would be thrown away or rejected or the legislature would lose anyway. But the moment that the U.S. Supreme Court decided to take up the case, people started viewing it as a very serious threat to the system we have in place in Arizona. In fact, you can see the -- and sense the shift in the tone in Democrats' press releases. You could see that they are very worried, they are saying yes, this probably will happen, they will draw the maps and this will not be very good for us.

HOWARD FISCHER: And what's interesting, I know Paul Bender discussed it on the show, the idea that the majority said, look, we buy the idea that the legislature is the law-making power. The Arizona Constitution says the law-making power of the Arizona belongs to the people. The people delegated that to the Independent Redistricting Commission. Obviously you had a few state lawmakers whose heads explode with that concept. But it is true, if you look in Arizona, the power belongs to the people.

MARY JO PITZL: And that's exactly what Justice Ruth Bader Ginsberg, who is known on the court as the notorious RBG, wrote in the majority opinion ultimately the power comes from the people. Notwithstanding when the Arizona Constitution was written. And this has broader implications beyond just state boundaries. California has a commission modeled after Arizona's. We have a couple of other states that have some form of a commission that might have lesser impact on the process. But this basically is a big blow for direct democracy, and it has -- and I've already talked to one initiative effort, the people behind the open primaries, and they are like, yeah, this is the kind of confirmation they need, they are full steam ahead on drafting their initiative.

LUIGE DEL PUERTO: And in fact the director Clean Elections Commission Tom Collins was very happy to read his opinion cause he said "look this is a blow for direct democracy, it's the clearest affirmation of direct democracy, which is the system we have in Arizona." And of course he mentioned that The Clean Elections Commission was also created by -- through the initiative process.

TED SIMONS: Senator Andy Biggs said, "The ruling broadens the term of legislature."

HOWARD FISCHER: Well, again, going back to Justice Ginsberg, she said yes, if you think legislature is meaning 60 folks in the house, 30 in the Senate, true. But if you take the broadest definition -- look in some dictionaries. If you look at the legislature they will talk about the law-making body. Again, now we go back to the Arizona Constitution. What is the law-making body? And that is in Arizona the people. And the people can amend the Constitution, they did that exactly in 2000, and they said this is what we want. And for the purposes of redistricting, the Independent Redistricting Commission is the legislature. We have delegated our authority to the legislature for this particular purpose.

MARY JO PITZL: But the minority on the opinion, as well as Senator Biggs, their argument is the word legislature is used in the elections clause and there are 17 other references in the constitution to the legislature. Where President Biggs is coming, from okay, if in this instance we're saying legislature means all the people, what about in the 16 other cases where the legislatures were -- Does that mean all the people? Do you put everything out to a vote of the people?

TED SIMONS: Exactly.

HOWARD FISCHER: So what? Again, the fact is in western states in particular --

MARY JO PITZL: So then why do we need a legislature?

HOWARD FISCHER: I question that sometimes. But leaving that aside, in fact, we don't legally need a legislature in this state.

MARY JO PITZL: No but we are a Republican form of government.

HOWARD FISCHER: We are a republican form of government, but ultimately if you look at the Arizona Constitution, the voters could dissolve the legislature.

TED SIMONS: But that's why they make the initiative process as difficult as it is, to make sure it doesn't happen for every single legislative effort that comes down the pike, correct?

LUIGE DEL PUERTO: Right. And there's a reason why it's easier to do a referendum and much more difficult to do an initiative or amend the state constitution. But Howard, you're right insofar as the state constitution. The ultimate font of authority is the people. However, the point of the minority opinion is that if you look at the U.S. Constitution, legislature was used several times. And especially in one context, when we changed -- amended the constitution to say that the U.S. senators would be elected by the people and not by the legislature, when the minority opinion mentioned that. And noted very carefully, we're talking about the legislature.

HOWARD FISCHER: But there's a difference --

LUIGE DEL PUERTO: Striping their power and giving it to the people.

HOWARD FISCHER: Let me give you two answers. The 17th Amendment got rid of it and said the Senate of the state shall elect U.S. senators. That's different than the legislature. Number two, I don't give a you know what about what the federal Constitution says about that for the simple reason all saying we are a sovereign state, the state's creating the federal government. If you believe that, our constitution trumps.

TED SIMONS: It's a states' rights issue that comes around in the other direction and hits some states' rights folks where they least expect it.

HOWARD FISCHER: They got bit in the you know what.

LUIGE DEL PUERTO: And in fact Hugh Hallman was saying this is a great thing for a state's rights movement. It may prove to be in the long run something they would look at and say, hey, that was a great opinion.

MARY JO PITZL: One observation, too, was the opponents of the ruling or the redistricting commission's power about redrawing congressional lines -- and it was only about congressional lines --it was a very literal reading of the constitution. And Justice Roberts, the chief justice, cited that writing in his writing of the descent for the minority. Interestingly a week earlier, a few days earlier, in the Affordable Care Act, Roberts, when he wrote for the majority, took a broader contextual view. He wasn't reading it just as state regarding health exchanges.

HOWARD FISCHER: And it goes even deeper, in that, let's take a look at the gay marriage ruling. If in fact you believe sovereignty and each state gets to decide marriage -- remember, the Windsor case which was decided several years ago says - where the federal government said we can't stop state from having gay marriage, said, "it's up to the states to decide what marriage is." And yet, here we are looking at a new ruling from late last month saying well, but the Fourteenth Amendment on equal protection trumps the rights of the state. You can look at this pile of opinion that came out and say, I'm not sure what we've got.

TED SIMONS: All over the map. As you mentioned, this is the congressional maps here. The Supreme Court has decided to hear legislative redistricting, as well, we're going to have another Arizona case next session.

MARY JO PITZL: Yes. So Arizona remains in the spot light and on the final day of the court session they issued an order that said, yeah, we'll take this one on. This is a challenge to the way the legislative districts were drawn. A group of Republican voters, mostly precinct committee people said, wait a minute, this packs too much Republicans into too few districts and it violates the one man one vote principle and it throws advantage to the Democrats.

HOWARD FISCHER: This is really crucial because, if you believe the constitution, even the provisions of the act that created the Independent Redistricting Commission, you're supposed to have supposedly equal sized districts. Which would be about 213,000 according to last census. We had some as small as 203,000, and we had some as large as 220,000. And the argument was made that what they did is, let's say you had a district that could go either way. You take a few Republicans out of there. Put them in a district that's already Republican, you now have an undersized district but one where the Democrats have a better chance of winning. And so you come into a question where, A, is it requirement for equally sized districts. And B, can you use politics. I think the second question's been answered. They have been using politics for redistricting for years. The question of whether the commission can do that is another question.

LUIGE DEL PUERTO: -- Of course they argued that they had to do what they had to do. They had to take away a few Republicans, put them into other districts because they had to comply with the -- requirement and make sure that on the first try that the Department of Justice would approve the map and they wouldn't have to redo it again.

TED SIMONS: Quickly.

HOWARD FISCHER: The fact is the pre clearance requirement was subsequently repealed by the Supreme Court.

TED SIMONS: It's gone.

MARY JO PITZL: So the political ramifications of this is the court could take this up, I don't know, very late this year, early next year. We have an election coming in 2016, we have a primary in August. And it's going to put some people on pins and needles in deciding their strategy.

LUIGE DEL PUERTO: In fact, there is one other occasion that potentially would have very significant impacts on Arizona. -- It's a case out of Texas and the decision of the Supreme Court is that when you draw your legislative maps, do you base it on the total population or do you base it on the voter population? That's a very significant question.

TED SIMONS: Interesting.

LUIGE DEL PUERTO: If you base it on total population, which is what we and other states do, you basically include noncitizens, felons, children, all these people who can't vote -- There were voters in Texas that said by doing it that way, you are devaluing our vote because now there are many more voters.

HOWARD FISCHER: This is critical. And you know why? Let's -- say you have one legislative district where you have all undocumented people and one person who's legal. That Person gets an equal vote in terms of the electing a member of the legislature than another district where they're all documented and so that one person's vote is equal to 500,000 in another. And that's makes it interesting.

MARY JO PITZL: Not to mention the fact that we elect officials to represent all of the people, even little kids, even teenagers who can't vote, even felon whose have lost their voting rights.

TED SIMONS: Okay. Before we leave this topic on both congressional maps which is a done deal and the state maps which is a deal in progress, the political fallout, Ann Kirkpatrick is running for Senate. Would she have run otherwise?

HOWARD FISCHER: I think she probably would have. I think you do one of these thing and you sense an opportunity out there. I think the real loser, and probably somebody we had to drag out of a bar is David Gowan. David Gowan wanted to run for Congress in Ann Kirkpatrick's vacated seat. And he had this idea that he could congressional district 1, which is really northern Arizona going around down to -- and pull it down to Sierra Vista, you can shift Martha McSally over and life would be good. Well he's still looking at running. But when you're an hour's drive from your district and there's no legal requirement to live in it, you always get that question of, are you a carpetbagger?

TED SIMONS: Another fallout from the decision?

LUIGE DEL PUERTO: Right -- Obviously with Kirkpatrick is saying, yeah, we're running, this decision hasn't changed our mind we're pushing ahead. Barbara McGuire Pinal County democrat announced that she's looking at CD 1 they're other names including -- Gary Kiehne, Andy Tobin is among the names being floated, as well. You know, there were -- there were possibilities or speculations that maybe Kyrsten Sinema would maybe run for the U.S. Senate. Obviously she's in a district -- that's not going to change.

TED SIMONS: It's interesting you say she's in a safe district because, a couple years ago everyone and their brother was saying she's going to have to fight tooth and nail every two years.

MARY JO PITZL: It's a district that is extensively a swing district. -- You still do have to work pretty hard, especially if you get a really strong opponent. I mean don't forget, her opponents haven't been the strongest people the GOP could field. It might look different now. -- Another consequence of this congressional ruling is that there was also speculation that she and Ruben Gallego would sort of pitched into the same turf and would have to battle for a congressional seat. You won't see that.

HOWARD FISCHER: One final point on this. -- The congressional things would have given it to the legislature. Assuming the court accepts the argument that the legislative districting are properly drawn, let's say -- June of next year, it sends it back to the IRC to redo it. That takes months. I don't see any way short of a federal court ruling that you'll end up with new legislative districts before 2016.

TED SIMONS: If you wind up with new legislative districts in 2016, or whenever. Is it going to change the nature of the state legislature that much?

HOWARD FISCHER: No, I mean look there's an argument to be made that when they did the quote unquote packing, it helped. Prior to redistricting we had 21 out of 30 republicans in the senate and 40 out of 60 in the house. We are now down 36-24 and 17-13, but -- we've had situations where it's been democrats actually were in control back in the 90s, in the senate. So there's a lot of other factors at work other than pure.

TED SIMONS: Alright, -- The Supreme Court declined this Arizona voter registration suit. Talk to us about the suit in Arizona and Kansas. -- Do we have dual voting for the foreseeable future?

MARY JO PITZL: I believe we do. What happened is -- the Supreme Court said you cannot require -- about two years ago -- you cannot require documents proving citizenship if you're going register using the federal voter registration form. Arizona already requires that because of the power of the people, an initiative made that a requirement in this state. Once the Supreme Court made that clear, Kris Kobach the secretary of state in Kansas took the lead on this, joined by Arizona. We think the Federal Elections Assistance Commission; we want to rewrite the rules so they should require proof of documentary proof of citizenship. And this thing rattled through the courts and ultimately the Supreme Court -- it was turned down by the - the 10th, and the Supreme Court said, we're not going take it.

MARY JO PITZL: Which means, we are left with this two-track system of voting which Arizona saw last year. If you have registered using the federal form. You get a federal-only ballot for 2016 that will mean you can vote for your president, congressmen, and you can vote in the U.S. Senate race that's it. If you have registered using the Arizona form, which is the vast majority of people, then you get the full ballot all the way from President down to School District.

TED SIMONS: And an operative phrase here is vast majority. Not many folks are doing that federal form.

LUIGE DEL PUERTO: There were a couple hundred that did it last time; it's not a whole lot of people. Of course the -- arguments against a dual track system, is if it's a close race, then -- a few number of people could make a difference.

HOWARD FISCHER: Here's where it gets really interesting. A lot of folks do voter registration drives. Your driver's license can serve as proof of citizenship for the forum. But if you don't have a driver's license -I'm not carrying around birth certificate, I'm not carrying around naturalization papers -- or my passport. And so you've got a question of -- The folks in the voter registration drive will be using that federal form a lot more now that it's very clear. Because they figure if we're out in the street in front of the -- library doing this, will at least get them registered for federal races. It's going to be a lot more folks, I think, for the 2016 election using that federal form.

MARY JO PITZL: And the other factor in this is the cost and this is born by the counties because they put on the elections. Last year in 2014 it was about a quarter million dollar cost for Maricopa County alone, because you have to print up 2 sets of ballots.

TED SIMONS: But you see operations as well, it's hardly a streamlining effort.

LUIGE DEL PUERTO: That's exactly why the county -- officers were complaining last time. If we have a dual track system, then you're navigating through tracks and how do you deal with that?

MARY JO PITZL: And all of this stems from an opinion from former Attorney General Tom Horne wrote that then Secretary of State Ken Bennett adopted current Secretary of State Michelle Regan says yeah, we've got to stick with that. Now interestingly other states haven't done that, I think Kansas did --.

HOWARD FISCHER: This all comes back to the fact that Congress specifically authorized the elections systems commission to come up with a single federal voter registration form. The commission is fully empowered to go ahead and decide what is appropriate. The commission said we don't need proof because it's a felony if you swear to it and don't do it. There are a lot of other ways they said you can check. They compare it to jury pools and everything else and we don't think you need it.

TED SIMONS: Alright, the Supreme Court also upheld a lethal injection procedure involves a drug that I'm not going try to pronounce. This is a drug Arizona uses this is an Oklahoma case here, and so first of all, brief the synopsis of the case and what it means to Arizona.

LUIGE DEL PUERTO: This case dealt with one question. Is the use of this particular drug unusual and cruel punishment? And -- The Supreme Court decided that it is not. It is not especially because those folks have already been convicted. They have gone through the court system. They have appealed their cases and they have lost their cases. And the Supreme Court - really did was also confirmed the constitutionality of the death penalty. Because it is constitutional they said, we cannot see why this would be a cruel and unusual punishment. One other thing, they said we have to show a substitute if we're not going to use this particular drug. Then show us a way.

HOWARD FISCHER: This first drug is essentially a very strong sedative. The idea of sedating somebody is you've got two other drugs that most other states use, one that stops your heart and one that basically stops your breathing. It paralyzes to you. Ruth Bader Ginsberg and some of the other folks at -- say it's like being burned alive if you can feel it. Now obviously we don't know what people can feel. But there have been a couple of botched executions. One in Arizona and one in Oklahoma where people kept moving for hours and the question was, If this drug doesn't properly sedate you, is that cruel and unusual?

TED SIMONS: Do executions continue in Arizona?

HOWARD FISCHER: Yes but. And the but is that there is an Arizona Supreme Court order holding up executions while another case is decided, but I think eventually we're going to restart them.

LUIGE DEL PUERTO: Right because the state of Arizona agreed this is a separate case and the state of Arizona agreed to hold that executions because that case -- exactly how we concluded we are going to use drugs in this state. We're trying to get information on who the plaintiffs are so while that case has not been resolved yet the state agreed that we're not going to do executions. With the guidance from the now, the chances are -- that particular case will soon be resolved, -- using the guy that -- in this other case.

TED SIMONS: So the question will be, do they resume using this drug?

HOWARD FISCHER: This comes back to the root problem. We use the other drugs until the manufacturers said it's bad P.R. to have others know our sedatives are being used to kill people. And so to a certain extent the foes of the death penalty, by getting these other companies to stop providing the drugs almost have forced this one. Do they use this drug? Probably, because there's nothing else available.

TED SIMONS: Let's get away from the court decisions just for a second here and get to an audit of the Department of Child Safety. It's basically the nose and toes thing, that -- Andy Biggs wants, he got it and neither nose nor toes came out very well, huh?

MARY JO PITZL: No. It was done at the Chapin Hall Center for Children University of Chicago well respected in child welfare issue. They took a look at how the agency had been operating. This was during a period where you had one side of leadership and then Governor Ducey came in and made a change. And I couldn't divine from the audit if it reflected a lot of those changes, but it did show problems with the agency that they don't have a clear way to sort out the calls that come into their child abuse hotlines and to classify which ones do we really need to bear down on and deal with first. Even though they have a priority system the audit found that it was inadequate.

LUIGE DEL PUERTO: The audit affirmed what we've been hearing in many sections, especially child and family advocates. They have been saying the reason why we're seeing all these cases, is because we have been pulling back on funding, in-homes services, and child care subsidies. All those other programs that we had before, that sort of acted as a safety net when they went away, now we're seeing all these cases. The audit report essentially affirmed that view.

TED SIMONS: And so are we going to see a slew of legislation next time around for additional family services?

HOWARD FISCHER: Uh huh sure, that and the Easter bunny is gonna come to the legislature.

MARY JO PITZL: You'll see an effort to narrow the definition of what constitutes neglect of a child. Arizona statured is somewhat broad and -- there is not consistent standards on how you interpret that. I know there's a move underway to really narrow that definition. Some people are going to have a big problem with that.

HOWARD FISCHER: How many times around this table have we talked about this pendulum here? You err on the side of taking the child out the first sign of something -- they show up at school hungry, they show up at school bruised. You take them out so you don't end up in Lori Roberts' column. The other side is you do what you can. There's a large group in the legislature that believes in all circumstances you keep the family together, no matter what. Again now you're down to, do you provide services?

MARY JO PITZL: A lot turmoil that the agency is going through recently -- a lot of people point to the current director Greg McKay. McKay looked at this audit said good ideas guys we're working on this and some of the other stuff we will get at. But it's unclear where these -- from where these problems stem in terms of leadership. They didn't name names or point fingers. They just talked about broader systemic issues.

TED SIMONS: That's your job, to name names. Good to have you all here. Thanks for being here. Happy Fourth, Howie.

HOWARD FISCHER: Yes I got my sparklers and was ready to go, but why won't you let me light these in the studio?

TED SIMONS: We'll talk about it afterwards. Because, I want to be a bigger part of it. Monday on "Arizona Horizon" we'll talk about how employers might be impacted by the Supreme Court's same-sex marriage ruling and how one valley artisan makes custom hats by hand. That is it for now. I'm Ted Simons, thanks for joining us. You have a great weekend.

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