Az Minority Coalition v. Az Independent

SUPREME COURT OF ARIZONA
En Banc

ARIZONA MINORITY COALITION FOR ) Arizona Supreme Court
FAIR REDISTRICTING, an ) No. CV-08-0161-PR
unincorporated association; )
RAMON VALADEZ; STATE ) Court of Appeals
REPRESENTATIVE PETER RIOS; ) Division One
CARLOS AVELAR; MARICOPA COUNTY ) No. 1 CA-CV 07-0301
SUPERVISOR, MARY ROSE GARRIDO )
WILCOX; ESTHER LUMM; VIRGINIA ) Maricopa County
RIVERA; LOS ABOGADOS, an ) Superior Court
Arizona Corporation, ) No. CV2002-004380
)
Plaintiffs/Appellees, )
)
v. ) O P I N I O N
)
ARIZONA INDEPENDENT )
REDISTRICTING COMMISSION; STEVEN )
W. LYNN, in his official )
capacity as Chairman and a )
Commissioner thereof; ANDREA )
MINKOFF; in her official )
capacity as Vice Chairman and a )
Commissioner thereof; DANIEL R. )
ELDER, in his official capacity, )
as a Commissioner thereof; JOSHUA )
M. HALL, in his official capacity )
as a Commissioner thereof; JAMES )
R. HUNTWORK, in his official )
capacity as a Commissioner )
thereof, )
)
)
Defendants/Appellants. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Kenneth L. Fields, Judge (Retired)

VACATED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division One
 219 Ariz. 50, 192 P.3d 409 (App. 2008)

VACATED
________________________________________________________________

PERKINS COIE BROWN & BAIN PA Phoenix
By Paul F. Eckstein
Charles A. Blanchard
Rhonda L. Barnes

And

LEWIS AND ROCA LLP Phoenix
By Richard A. Halloran
Lawrence A. Kasten
Kimberly A. Demarchi
Attorneys for Arizona Minority Coalition for Fair Redistricting,
Ramon Valadez, Carlos Avelar, Peter Rios, Mary Rose Garrido
Wilcox, Esther Lumm, Virginia Rivera, and Los Abogados

GAMMAGE & BURNHAM PLC Phoenix
By Lisa T. Hauser
Cameron C. Artigue

And

HARALSON MILLER PITT FELDMAN & MCANALLY PLC Phoenix
By Jose de Jesus Rivera
Peter T. Limperis
Attorneys for Arizona Independent Redistricting Commission,
Steven M. Lynn, Andrea M. Minkoff, Daniel R. Elder, Joshua M.
Hall, and James R. Huntwork
________________________________________________________________

M c G R E G O R, Chief Justice

¶1 Arizona’s Independent Redistricting Commission (the

Commission) has the sole task of drawing congressional and state

legislative districts. The Arizona Constitution provides

procedural and substantive guidance to the Commission. This

decision considers the nature of this guidance and the extent to

2
which a court can review Commission decisions.

I.

¶2 In November 2000, Arizona voters passed Proposition

106, a citizen initiative that amended the Arizona Constitution

by removing the power to draw congressional and state

legislative districts from the state legislature and reassigning

this task to the newly created Independent Redistricting

Commission. See Ariz. Const. art. 4, pt. 2, § 1(3) and

historical notes. The Commission consists of five volunteer

commissioners appointed in a manner designed to assure diversity

in political party affiliation and county of residence. See id.

art. 4, pt. 2, § 1(3) to (8). The Commission on Appellate Court

Appointments nominates candidates for the Commission, id. art.

4, pt. 2, § 1(4), and commissioners are then appointed from this

pool of candidates, id. art. 4, pt. 2, § 1(6), (8). The Speaker

of the House of Representatives appoints the first commissioner,

followed, in order, by appointments by the minority leader of

the House, by the President of the Senate, and by the minority

leader of the Senate. Id. art. 4, pt. 2, § 1(6). Then, by

majority vote, the four appointed commissioners select the fifth

commissioner, who serves as the chair of the Commission, from

the remaining candidates in the nomination pool. Id. art. 4,

pt. 2, § 1(8). The commissioners then select one of their

3
members to serve as the vice-chair of the Commission. Id. art.

4, pt. 2, § 1(9). Commissioners are appointed in “years ending

in one” and serve concurrent ten-year terms. Id. art. 4, pt. 2,

§ 1(6), (23).

¶3 The constitution permits no more than two members of

the Commission to be from the same political party and requires

that the fifth commissioner not be registered with any party

represented on the Commission at the time of appointment. Id.

art. 4, pt. 2, § 1(3), (8). Candidates must demonstrate a

commitment to performing the Commission’s charge “in an honest,

independent and impartial fashion and to upholding public

confidence in the integrity of the redistricting process.” Id.

art. 4, pt. 2, § 1(3). All Commission members must be

registered Arizona voters who have been “continuously registered

with the same political party or registered as unaffiliated with

a political party for three or more years immediately preceding

appointment.” Id.

¶4 The Commission requires a quorum of three

commissioners, including the chair or vice-chair, to conduct

business, and the Commission can take official action only with

three or more affirmative votes. Id. art. 4, pt. 2, § 1(12).

To ensure transparency, the Commission must conduct its business

“in meetings open to the public, with 48 or more hours public

4
notice provided.” Id.

¶5 The sole task of the Commission is to establish

congressional and legislative districts. Id. art. 4, pt. 2, §

1(14). The Arizona Constitution directs the Commission to

complete its task by following a specified procedure. First,

the Commission must create “districts of equal population in a

grid-like pattern across the state.” Id. Working from that

map, the Commission must next adjust the grid “as necessary to

accommodate” six listed goals:

A. Districts shall comply with the United States
constitution and the United States voting rights act;

B. Congressional districts shall have equal population
to the extent practicable, and state legislative
districts shall have equal population to the extent
practicable;

C. Districts shall be geographically compact and
contiguous to the extent practicable;

D. District boundaries shall respect communities of
interest to the extent practicable;

E. To the extent practicable, district lines shall use
visible geographic features, city, town and county
boundaries, and undivided census tracts;

F. To the extent practicable, competitive districts
should be favored where to do so would create no
significant detriment to the other goals.

Id. The Commission must exclude “[p]arty registration and

voting history data . . . from the initial phase of the mapping

process[,]” but may use that data to “test maps for compliance

5
with the above goals.” Id. art. 4, pt. 2, § 1(15). The

Commission must “advertise a draft map” of both congressional

and legislative districts to the public for at least thirty days

to permit public comment. Id. art. 4, pt. 2, § 1(16). During

the comment period, “[e]ither or both bodies of the legislature

may . . . make recommendations to the independent redistricting

commission[,]” and those recommendations “shall be considered by

the independent redistricting commission.” Id. The Commission

then establishes final district boundaries. Id.

II.

¶6 In May 2001, the Commission commenced the mapping

process by creating a map with “districts of equal population in

a grid-like pattern across the state” and adopting that map on

June 7, 2001. See id. art. 4, pt. 2, § 1(14).1 The Commission

then held hearings during the next three weeks to solicit public

input about the initial grid map. Between July 17 and August

17, 2001, the Commission adjusted the grid map to accommodate

the first five of the six constitutional goals, but did not

adjust for “competitiveness,” the sixth goal.

1
The Commission is charged with developing district
boundaries for congressional and legislative voting districts,
but the Arizona Minority Coalition for Fair Redistricting
challenged only the Commission’s legislative map. Many of the
steps in developing congressional and legislative districts
overlap, but this recitation of facts focuses on those steps
that implicate the legislative map.
6
¶7 On August 17, 2001, the Commission adopted a draft

map. The Commission advertised this draft map for the

constitutionally required thirty days and held another series of

public hearings to obtain additional comment. After reviewing

public comments and making further modifications to the draft

map, on November 9, 2001, the Commission adopted a legislative

map. It certified the legislative district boundaries and

delivered the certification to the Arizona Secretary of State on

November 15, 2001.

¶8 As required by Section 5 of the Voting Rights Act, 42

U.S.C. § 1973c (2000), on January 24, 2002, the Commission

submitted the legislative and congressional redistricting plans

to the United States Department of Justice (DOJ) for

preclearance.2 The DOJ did not object to the congressional plan

but, on May 20, 2002, denied preclearance of the legislative

plan, stating that “the proposed plan, which results in a net

loss of . . . districts . . . in which minority voters can

effectively exercise their electoral franchise, is

retrogressive.” See Beer v. United States, 425 U.S. 130, 141

2
Pursuant to the Voting Rights Act, Arizona must submit any
changes to voting practices or procedures within Arizona,
including the creation of new legislative districts, to the DOJ
or the United States District Court for the District of Columbia
for “preclearance” prior to implementation. See 42 U.S.C. §
1973c.

7
(1976) (noting that the purpose of Section 5 is to “insure that

no voting-procedure changes would be made that would lead to a

retrogression in the position of racial minorities with respect

to their effective exercise of the electoral franchise”).

¶9 In May 2002, the Commission developed an emergency

interim legislative plan to address the DOJ objections. On May

29, 2002, the United States District Court for the District of

Arizona authorized use of the interim plan in the 2002

legislative elections. Navajo Nation v. Ariz. Indep.

Redistricting Comm’n, 230 F. Supp. 2d 998, 1000-01 (D. Ariz.

2002).

¶10 In June 2002, the Commission adjusted the interim

plan, taking into consideration all six of the constitutional

goals, including competitiveness. The Commission adopted a new

draft map on June 25, 2002, and advertised that map to the

public for thirty days. Following the comment period and some

final minor adjustments, the Commission adopted a final

legislative district map on August 14, 2002.

¶11 On March 6, 2002, the Arizona Minority Coalition for

Fair Redistricting and others (the Coalition) filed this action

in superior court asserting that the legislative plan did not

sufficiently favor competitive districts and therefore violated

Article 4, Part 2, Section 1(14)(F) because it did not create

8
competitive districts when it was possible to do so.3 The

Coalition alleged that the Commission’s final map created

“fewer, rather than more, competitive legislative districts” and

it offered an alternative plan to better accomplish all the

constitutional goals.

¶12 After a six-week bench trial in November and December

2003, the trial court concluded that the Commission had failed

to favor the creation of competitive legislative districts and

that this failure was arbitrary and capricious and a violation

of section 1(14)(F). In reaching its conclusions, the court

placed significant weight on the existence of two alternative

plans presented to the Commission. The court found that both

the “Hall-Minkoff Plan,” developed by the Commission, and the

“Hall-Modified Plan,” submitted to the Commission by the

Coalition, “allowed the Commission to create a greater number of

competitive legislative districts without causing significant

detriment to the other goals.” According to the trial court’s

findings, both alternative plans created seven competitive

districts, whereas the Commission’s August 2002 plan created

only four competitive districts. On January 16, 2004, the court

ordered the Commission to adopt a new legislative plan that

3
The Coalition filed an amended complaint on October 16,
2002, challenging the August 2002 legislative district map.

9
would favor competitiveness and be at least as competitive as

the Hall-Minkoff Plan or the Hall-Modified Plan.

¶13 The Commission appealed the trial court’s ruling to

the court of appeals and, in the interim, prepared a new

legislative plan that the trial court approved on April 16,

2004. Ariz. Minority Coal. for Fair Redistricting v. Ariz.

Indep. Redistricting Comm’n (Redistricting I), 211 Ariz. 337,

343 ¶ 10, 121 P.3d 843, 849 (App. 2005). The court of appeals

reversed the trial court’s January 2004 judgment, holding that

the “competitiveness goal is subordinate to [the] other goals

listed in Section 1(14)(B)-(E), and the trial court erred by

entering a contrary ruling.”4 Id. at 364-65 ¶ 113, 121 P.3d at

870-71. The court of appeals also reversed the trial court’s

April 2004 judgment approving the new redistricting plan and

remanded to the trial court to decide whether the Commission

violated Article 4, Part 2, Section 1(14) and (15) or the state

or federal equal protection clauses.5 Id. at 366 ¶¶ 120, 122,

121 P.3d at 872; see also U.S. Const. amend. XIV, § 1; Ariz.

Const. art. 2, § 13.

¶14 On remand, the trial court again found that the

4
The court of appeals addressed additional issues not
relevant to this decision.

10
Commission’s August 2002 legislative plan violated Article 4,

Part 2, Section 1(14) because the Commission did not

sufficiently favor competitiveness. Once more, the trial court

gave significant weight to the fact that more competitive maps

were presented to the Commission, as well as to the fact that

the Commission made only minor adjustments for competitiveness

along the boundaries of the voting districts. The trial court

found that the Commission “never favored competitiveness and

never found that competitive districts were not practicable

and/or would cause significant detriment to the other

constitutional goals.”

¶15 The Commission appealed. The court of appeals again

reversed, this time observing that the Commission “considered

competitiveness and made a finding that a more competitive plan

would cause a significant detriment to the other five

constitutional goals” and concluding that “the Commission’s

findings were supported by substantial evidence.” Ariz.

Minority Coal. for Fair Redistricting v. Ariz. Indep.

Redistricting Comm’n (Redistricting II), 219 Ariz. 50, __, __ ¶¶

20, 26, 192 P.3d 409, 413, 414 (App. 2008).

¶16 The Coalition petitioned this Court for review and

5
The Coalition initially contended that the Commission’s
final redistricting plan violated the state and federal equal
protection clauses, but has withdrawn that claim.
11
asked us to decide (1) whether the Commission must “favor” or

merely “consider” competitiveness; (2) whether the Commission

must include all six of the constitutional goals before

advertising a draft map; (3) whether the Commission must make

objective findings of significant detriment to the other

constitutional goals when rejecting more competitive

redistricting plans; and (4) whether the findings of the trial

court are entitled to review under the clearly erroneous

standard. We granted review to decide these recurring issues of

statewide importance. See ARCAP 23(c). We exercise

jurisdiction pursuant to Article 6, Section 5.3, of the Arizona

Constitution and Arizona Revised Statutes (A.R.S.) section 12-

120.24 (2003).

III.

¶17 The level of judicial review afforded Commission

enactments depends in large part on whether we regard the

Commission as a “legislative body” or as a “constitutional

administrative body.” In Arizona Independent Redistricting

Commission v. Fields (Legislative Immunity Opinion), the court

of appeals treated the Commission as a “legislative body,” see

206 Ariz. 130, 139 ¶ 24, 75 P.3d 1088, 1097 (App. 2003), but in

Redistricting II, the court of appeals referred to the

12
Commission as a “constitutional administrative agency.”6 219

Ariz. at __ ¶ 9, 192 P.3d at 411. We must resolve this conflict

in the court of appeals’ decisions to determine what standard of

review courts should employ when reviewing Commission actions.

A.

¶18 In the Legislative Immunity Opinion, the court of

appeals held that Commission members are entitled to legislative

privilege because the Commission performs a legislative

function. 206 Ariz. at 139 ¶ 24, 75 P.3d at 1097; see also Lake

Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S.

391, 405 & n.30 (1979) (taking a functional approach to

legislative immunity). We agree with the court of appeals’

conclusion that if an entity performs a legislative function,

courts should regard that entity as a legislative body. See

Legislative Immunity Opinion, 206 Ariz. at 138-39 ¶¶ 20-24, 75

P.3d at 1096-97. An entity’s action is legislative if it bears

“the hallmarks of traditional legislation . . . [by]

reflect[ing] a discretionary, policymaking decision . . . [that]

may have prospective implications.” Bogan v. Scott-Harris, 523

U.S. 44, 55-56 (1998).

¶19 To determine whether the Commission is a legislative

6
Despite these conflicting court of appeals statements, on
review the parties agree that the Commission is a legislative
body.
13
body, therefore, we examine the nature of its acts. The

Commission’s acts bear “the hallmarks of traditional

legislation” in that commissioners exercise discretion and make

policy decisions. Commissioners do not merely implement

established redistricting policy; rather, guided by the Arizona

Constitution, they decide where to draw district boundaries. In

addition, Commission enactments carry the force of law and have

prospective implications, other hallmarks of traditional

legislation. Finally, the Commission’s function is one that a

legislature traditionally performs. Not only do enactments that

carry the force of law traditionally originate in the

legislature, but the process of redistricting is itself

traditionally viewed as a legislative task. The United States

Supreme Court “has repeatedly held that redistricting . . . is a

legislative task.” Wise v. Lipscomb, 437 U.S. 535, 539 (1978).

Indeed, in Arizona, the legislature performed the task of

redistricting until 2000. Ariz. Const. art. 4, pt. 2, § 1(1)

(amended 2000). We conclude that the Commission acts as a

legislative body.

B.

¶20 We next address the standard that applies to judicial

review of legislative acts. Courts generally afford substantial

14
deference to legislative enactments.7 When reviewing a

legislative enactment, courts exercise the deference that “we

customarily must pay to the duly enacted and carefully

considered decision of a coequal and representative branch of

our Government.” Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 319-20 (1985). We do so not only

because legislative enactments originate with a coequal branch

of government, but also because that “institution ‘is far better

equipped than the judiciary to amass and evaluate the vast

amounts of data bearing upon’ legislative questions.” Turner

Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-96 (1997) (quoting

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994)

(plurality opinion) (internal quotation marks omitted)).

¶21 Courts also operate under the expectation that “the

legislature acts constitutionally.” State v. Murphy, 117 Ariz.

7
In some situations, the burden shifts to the government to
demonstrate that a legislative enactment is constitutional.
See, e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382
(1992) (content-based restrictions on speech are “presumptively
invalid”); Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 272
(1989) (racial classifications are “presumptively invalid”).
These situations generally involve fundamental constitutional
rights or distinctions based on certain suspect classifications.
Although enactments of the Commission involve voting rights,
which are generally considered fundamental rights, redistricting
alone “does not affect ‘the essence of the fundamental right’ to
vote,” and thus does not eliminate the deference that courts
generally afford to legislative enactments. See Redistricting
I, 211 Ariz. at 348 ¶ 33, 121 P.3d at 854 (quoting Kenyon v.
Hammer, 142 Ariz. 69, 83, 688 P.2d 961, 975 (1984)).
15
57, 61, 570 P.2d 1070, 1074 (1977). The United States Supreme

Court has observed that judging “the constitutionality of an Act

of Congress [is] ‘the gravest and most delicate duty that this

Court is called upon to perform.’” Rostker v. Goldberg, 453

U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142,

148 (1927) (Holmes, J.)). Accordingly, “statutes are

constitutional unless shown to be otherwise,” Chevron Chem. Co.

v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282

(1982), and “when there is a reasonable, even though debatable,

basis for the enactment of a statute, we will uphold the act

unless it is clearly unconstitutional.” Murphy, 117 Ariz. at

61, 570 P.2d at 1074.

¶22 A redistricting plan receives the same deference as we

afford to other legislation. See Wise, 437 U.S. at 539 (noting

that the United States Supreme Court “has repeatedly held that

redistricting and reapportioning legislative bodies is a

legislative task which the federal courts should make every

effort not to pre-empt”). “[J]udicial relief becomes

appropriate only when a legislature fails to reapportion

according to . . . constitutional requisites . . . .” Reynolds

v. Sims, 377 U.S. 533, 586 (1964). “[I]n the absence of any

finding of a constitutional or statutory violation . . . , a

court must defer to the legislative judgments the plans reflect

16
. . . .” Upham v. Seamon, 456 U.S. 37, 40-41 (1982).

¶23 Most challenges to redistricting plans question

whether a plan violates the Equal Protection Clause. See U.S.

Const. amend XIV, § 1. Whether asserting vote dilution, see,

e.g., Reynolds, 377 U.S. 533, or racial gerrymandering, see,

e.g., Shaw v. Reno, 509 U.S. 630 (1993), these equal protection

claims generally involve the alleged deprivation of fundamental

rights.8 When courts review such claims, we apply an elevated

level of judicial scrutiny. See supra note 7.

¶24 Arizona’s constitution, however, adds unique

procedural and substantive requirements to the mandate that

redistricting plans comply with equal protection principles.

The Coalition’s challenges in this case rest upon those

provisions. Our review of the Commission’s actions thus

involves a two part analysis to determine (1) whether the

Commission followed the constitutionally mandated procedure and

(2) whether the Commission adopted a final plan that satisfies

substantive constitutional requirements.

IV.

¶25 When considering the constitutionality of a

legislative enactment, we usually limit our inquiry to testing

8
Similar claims also arise under the Voting Rights Act.
See, e.g., League of United Latin Am. Citizens v. Perry, 548
U.S. 399 (2006).
17
the final enactment against constitutional requirements. See,

e.g., State v. Stummer, 219 Ariz. 137, 194 P.3d 1043 (2008)

(analyzing hours-of-operation statute under free speech

requirements); State v. Casey, 205 Ariz. 359, 71 P.3d 351 (2003)

(analyzing burden of proof statute under due process

requirements); Aros v. Beneficial Ariz., Inc., 194 Ariz. 62, 977

P.2d 784 (1999) (analyzing consumer lender regulations under

equal protection requirements). We typically do not examine the

process the legislature follows in adopting statutes. The

separation of powers required by Article 3 of the Arizona

Constitution “prohibits judicial interference in the legitimate

functions of the other branches of our government. We will not

tell the legislature when to meet, what its agenda should be,

what it should submit to the people, what bills it may draft or

what language it may use.” Mecham v. Gordon, 156 Ariz. 297,

302, 751 P.2d 957, 962 (1988).

¶26 But when the voters adopted Proposition 106, they not

only transferred the redistricting task from the legislature to

the Commission, but also imposed a specific process that the

Commission must follow in performing this task. See Ariz.

Const. art. 4, pt. 2, § 1(14) to (16). Our review, then, must

include an inquiry into whether the Commission followed the

mandated procedure. If it did not, the Commission violated the

18
constitution as clearly as if it had violated the Equal

Protection Clause by adopting legislation that lacks a

reasonable basis.

¶27 We cannot use the constitutional requirement that the

Commission follow a specified procedure, however, as a basis for

intruding into the discretionary aspects of the legislative

process and then, having intruded, base our review on whether we

conclude that the courts or another entity could offer a

“better” redistricting plan; doing so would impermissibly

enlarge our role. See, e.g., In re Colo. Gen. Assembly, 828

P.2d 185, 189 (Colo. 1992) (“The choice among alternative plans,

each consistent with constitutional requirements, is for the

Commission and not the Court.”); Jensen v. Ky. State Bd. of

Elections, 959 S.W.2d 771, 776 (Ky. 1997) (“Our only role in

this process is to ascertain whether a particular redistricting

plan passes constitutional muster, not whether a better plan

could be crafted.”);  Hartung v. Bradbury, 33 P.3d 972, 980-

81 (Or. 2001) (“In reviewing a plan of reapportionment, this

court is not privileged to substitute its judgment about the

wisdom of the plan. . . . Rather, our task is to determine

whether the Secretary of State has complied with [all applicable

law].”); In re Senate Bill 177, 318 A.2d 157, 159 (Vt. 1974)

(“Review by this Court will be limited to testing the

19
reapportionment by the appropriate constitutional and statutory

standards, even in the presence of alternatives which give the

appearance of better representation.”).

¶28 In reaching their decisions, the commissioners perform

legislative tasks of the sort we make every effort not to pre-

empt. The Commission adopts its final map only after engaging

in several levels of discretionary decision-making. The

constitutional requirement that the Commission accommodate

specified goals “to the extent practicable” recognizes that

accommodating the various goals requires the Commission to

balance competing concerns. This balancing necessarily requires

the commissioners to exercise discretion in choosing among

potential adjustments to the grid map. The Commission’s need to

balance competing interests typifies the political process, in

which each commissioner may well define differently the “best”

balance of these goals. Deciding the extent to which various

accommodations are “practicable” also requires the commissioners

to make judgments that the voters have assigned to the

Commission, not to the courts. We therefore restrict this

portion of our inquiry to determining whether the Commission

followed the constitutionally required procedure in adopting its

final redistricting plan.

20
 A.

¶29 To comply with the mandatory constitutional procedure,

the Commission must complete several steps. In Redistricting I,

the court of appeals identified these steps as the four “phases”

of the redistricting process. 211 Ariz. at 352 ¶ 53, 121 P.3d

at 858. That framework provides a useful tool to use in

determining whether the Commission fulfilled the constitution’s

procedural requirements.

B.

¶30 The parties agree that the first phase involves the

creation of “districts of equal population in a grid-like

pattern across the state.” Ariz. Const. art. 4, pt. 2, § 1(14);

Redistricting I, 211 Ariz. at 352-53 ¶ 53, 121 P.3d at 858-59.

The Coalition does not challenge the Commission’s approach to

this phase of its duties.

C.

¶31 In the second phase, the Commission must make

adjustments to the grid “as necessary to accommodate” the six

constitutional goals. Ariz. Const. art. 4, pt. 2, § 1(14);

Redistricting I, 211 Ariz. at 353 ¶ 54, 121 P.3d at 859.

¶32 The first goal mandates that districts comply with the

United States Constitution and the Voting Rights Act, and the

second goal requires that congressional districts and state

21
legislative districts “have equal population to the extent

practicable.” Ariz. Const. art. 4, pt. 2, § 1(14)(A)-(B).

These goals, which require compliance with the Federal

Constitution and federal statutes, are only as flexible as the

federal requirements permit, and compliance with these goals can

be decided by a court as a matter of law. See, e.g., League of

Latin Am. Citizens, 548 U.S. at 425; Reynolds, 377 U.S. at 561.

The Coalition does not challenge the Commission’s compliance

with these goals.

¶33 The Commission must also accommodate the remaining

four goals “to the extent practicable.” Ariz. Const. art. 4,

pt. 2, § 1(14)(C)-(F). These goals require that “[d]istricts

shall be geographically compact and contiguous,” “[d]istrict

boundaries shall respect communities of interest,” “district

lines shall use visible geographic features, city, town and

county boundaries, and undivided census tracts,” and

“competitive districts should be favored where to do so would

create no significant detriment to the other goals.” Id. To

successfully challenge the Commission’s compliance with these

goals, the Coalition must establish that during its

deliberations, the Commission failed to take into account its

obligation to accommodate these four goals to the extent

practicable.

22
¶34 The Coalition challenges the Commission’s compliance

with the procedural requirements only with regard to

competitiveness, the sixth constitutional goal. To show that

the Commission failed to follow the constitutionally mandated

procedure as to this goal, the Coalition must establish that the

Commission failed to engage in a deliberative effort to

accommodate the goal. If the record demonstrates that the

Commission took this goal into account during its deliberative

process, our procedural inquiry ends.9

¶35 The constitution directs the Commission to favor

competitiveness when doing so is practicable and will not cause

“significant detriment” to the other goals. Id. art. 4, pt. 2,

§ 1(14)(F). As the court of appeals noted in Redistricting I,

the competitiveness goal is both mandatory and conditional:

[I]f drawing competitive or more competitive districts
would not be practicable or would cause significant
detriment to the goals listed in subsections (B)-(E),
the Commission must refrain from establishing such
districts. Conversely, if it would be practicable to
draw competitive or more competitive districts and to
do so would not cause significant detriment to the
goals listed in subsections (B)-(E), the Commission
must establish such districts.

9
Rather than apply this standard, the trial court made
independent findings of fact, which the Coalition argues should
have been reviewed under a clearly erroneous standard. Because
it is not for the courts to consider whether the Commission
might have reached a different result or whether a more
competitive map could have been created, the trial court erred
in making these findings. We therefore do not review the trial
court’s findings of fact.
23
211 Ariz. at 354 ¶ 59, 121 P.3d at 860. The direction that

competitiveness should be favored unless one of two conditions

occurs does not, contrary to the Commission’s assertion, mean

that the competitiveness goal is less mandatory than the other

goals, can be ignored, or should be relegated to a secondary

role. The constitutional language means what it says: The

Commission should favor creating more competitive districts to

the extent practicable when doing so does not cause significant

detriment to the other goals.10

¶36 The record demonstrates that the Commission did engage

in the required deliberative process in meetings open to the

public. As the court of appeals pointed out, the Commission

used three different statistical methods for measuring

competitiveness: Judge It,11 Arizona Quick and Dirty,12 and voter

registration records. Redistricting II, 219 Ariz. at __ ¶ 14,

192 P.3d at 412. The Commission also considered alternative

10
Because the constitution does not establish primary and
subordinate goals, we disagree with the court of appeals’
observation that the unique restriction attached to this goal
“plainly subordinates the competitiveness goal” to the other
goals. Redistricting I, 211 Ariz. at 354 ¶ 59, 121 P.3d at 860.
11
Judge It provides an advanced statistical analysis that
predicts the potential outcome of an election based upon results
from previous elections.
12
Arizona Quick and Dirty is comprised of data extrapolated
from the election results of three Arizona Corporation
Commission races from the 1998 and 2000 general elections.

24
maps that would have increased competitiveness. Id. Minutes

from the June 2002 meetings indicate that the Commission

discussed ways to increase the competitiveness of each

legislative district. The record is sufficient to establish

that the Commission followed the mandatory constitutional

procedure by attempting to accommodate the competitiveness goal,

while taking into account whether greater competitiveness would

cause significant detriment to the other goals.

¶37 The Coalition also argues that the Commission failed

to make objective findings of significant detriment to the other

goals. The constitution, however, does not impose such an

obligation. In fact, the constitution does not require the

Commission to record any specific information as evidence of its

deliberation.13

¶38 We conclude that the Commission fulfilled its

responsibility to attempt to accommodate all the constitutional

goals during its deliberative process.

D.

¶39 The Coalition next asserts that the Commission failed

13
We note, however, that efforts by the Commission to develop
a detailed record of the subject matter of their deliberations
and to state clearly the reasons for reaching its conclusions
will assist the public in understanding the Commission’s
decisions and will assist the courts in determining whether the
Commission followed the mandatory procedure.

25
to comply with the constitutional direction that, during the

third phase, the Commission must “advertise . . . a draft map of

legislative districts to the public for comment . . . for at

least thirty days.” Ariz. Const. art. 4, pt. 2, § 1(16);

Redistricting I, 211 Ariz. at 353 ¶ 55, 121 P.3d at 859. The

Coalition argues that because the constitution required the

Commission to adjust its map for competitiveness during “phase

two” before it advertised the map for public comment during

“phase three,” the Commission’s decision to advertise a draft

map before it attempted to accommodate all the constitutional

goals resulted in a constitutional violation.

¶40 The Coalition’s argument depends upon an overly

technical application of the court of appeals’ four-phase

analysis, which provides an analytic framework, but can neither

add to nor subtract from constitutional requirements. The only

constitutional requirement related to draft maps and public

comment requires that a draft map be advertised to the public

for at least thirty days. Ariz. Const. art. 4, pt. 2, § 1(16).

The record demonstrates that, although the Commission followed a

procedure different from that preferred by the Coalition, the

Commission did meet this constitutional requirement.

¶41 Due in part to sequential legal challenges to the

actions of the Commission, its advertisement of draft maps took

26
place over a considerable period. In 2001, the Commission held

three weeks of public hearings after it adopted its initial grid

map. In August 2001, after adjusting for the first five of the

six constitutional goals, the Commission allowed another thirty-

day comment period. At that point, the Commission had not

adjusted for the competitiveness goal. Had the Commission’s

work ended at this point, we would conclude that the Commission

advertised no map that resulted from Commission efforts to

accommodate all constitutional goals, and therefore did not

comply with the constitution. In addition, a substantial

question would exist as to whether the record adequately

demonstrated any effort to accommodate the competitiveness goal.

But the Commission’s drafting process did not end in the fall of

2001.

¶42 After the DOJ rejected the Commission’s legislative

map, the Commission adjusted its redistricting plan. When the

Commission met in June 2002, the commissioners discussed all the

constitutional goals, including the competitiveness of each

legislative district, as well as the impact that any changes to

district boundaries would have on other districts. The

Commission then adjusted the map in an attempt to enhance

27
competitiveness.14 After making efforts to accommodate all the

constitutional goals, the Commission again advertised a draft

map to the public for the constitutionally mandated thirty days.

By advertising this final draft map, the Commission complied

with the publication and comment requirements of the map-drawing

process.

¶43 Measured against this record, the Coalition’s argument

devolves to the assertion that the Commission may advertise a

plan for public comment only after it has attempted to

accommodate all constitutional goals. We see nothing in the

14
The Coalition insists that the Commission had available and
should have used a better methodology for determining the
competitiveness of districts and that the Commission should have
better utilized the competitiveness consultant it hired.
Inquiries into the Commission’s chosen method for measuring
competitiveness, however, fall outside the scope of judicial
review. See supra ¶¶ 27-28. The Coalition also asserts that
when the Commission did accommodate competitiveness, the
commissioners treated it “as mere fine tuning around the edges
that would not be a dramatic change” from the Commission’s
previous draft map, and claims that the Commission rejected
changes that would have increased competitiveness on an ad hoc
basis. Inquiring into that argument would lead us to an
evaluation of the adequacy of the Commission’s efforts to
accommodate the competitiveness goal and the reasoning behind
the Commission’s rejections of additional changes in the map;
those issues also fall outside the scope of judicial review.
See supra ¶¶ 27-28. Of course, mere pretextual deliberation
about any of the goals would not satisfy the constitution, but
the record in this matter does not support any claim that the
Commission’s deliberations were pretextual. At most, the record
shows that the Coalition and the Commission differed as to the
use the Commission made of the information available to it and
the weight the Commission should have attached to that
information.
28
constitutional language that would lead us to conclude that the

multi-step approach the Commission followed, which allowed

public comment on more than one draft map, violates any

constitutionally mandated procedure. The Commission must, of

course, eventually advertise for public comment a map that

incorporates Commission attempts to accommodate all the

constitutional goals, but the Commission did that here.15

E.

¶44 In the fourth and final phase of the mapping process,

after the public comment period has ended, the Commission must

“establish final district boundaries” and certify the new

districts to the Secretary of State. Id. art. 4, pt. 2, §

1(16)-(17); Redistricting I, 211 Ariz. at 353 ¶ 55, 121 P.3d at

859. The Coalition does not challenge the Commission’s approach

to this phase of its duties.

V.

¶45 Once we determine that the Commission complied with

the procedural requirements of the constitution, the only

remaining question for our review is whether the final district

map complies with substantive constitutional requirements.

15
During oral argument, the Commission observed that, with
the benefit of experience, it would now recommend that the next
Commission adjust its draft map to reflect all constitutional
goals before advertising it for public comment.

29
Because this action does not involve the alleged deprivation of

fundamental rights, we ask if the party challenging the

redistricting plan demonstrated that no reasonable redistricting

commission could have adopted the redistricting plan at issue.

See, e.g., Aros, 194 Ariz. at 67-68, 977 P.2d at 789-90; Ariz.

Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 556, 637 P.2d

1053, 1059 (1981); see also Murphy, 117 Ariz. at 61, 570 P.2d at

1074 (“[W]hen there is a reasonable, even though debatable,

basis for the enactment of a statute, we will uphold the act

unless it is clearly unconstitutional.”).

¶46 We conclude that the Coalition did not meet its burden

of establishing that the plan lacks a reasonable basis. The

Coalition’s challenge largely rests on its contention that more

competitive maps were presented to and rejected by the

Commission. Even if we accept those assertions as true, the

fact that a “better” plan exists does not establish that this

plan lacks a reasonable basis. Although the Commission’s

decisions may be debatable, the Coalition did not show that no

reasonable commission would have adopted this plan.

VI.

¶47 For the foregoing reasons, we vacate the opinion of

the court of appeals, reverse the judgment of the trial court

and remand to the trial court with instructions to enter

30
judgment in favor of the Commission.

_______________________________________
Ruth V. McGregor, Chief Justice

CONCURRING:

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Michael D. Ryan, Justice

H U R W I T Z, JUSTICE, concurring in all but Section IV(D) of
the Court’s opinion and concurring in the result

¶48 The Court today neatly describes the proper judicial

role in reviewing decisions of the Independent Redistricting

Commission. When the Commission adjusts the grid map “as

necessary to accommodate” the six constitutional goals in Article

4, Part 2, Section 1(14) of the Arizona Constitution, it acts, as

the Court concludes, in a quintessentially legislative fashion.

The Constitution requires that four potentially conflicting goals

be balanced against each other “to the extent practicable.”

Ariz. Const. art. 4, pt. 2, § 1(14)(C)–(F).16 This directive

16
As the Court notes, goals (A) and (B) either expressly or
implicitly mirror the requirements of the United States
Constitution or federal statutory law, and compliance with these
goals can be decided as a matter of objective law. See ¶ 32,
supra.

31
will almost inevitably lead to a final product in which none of

these goals is achieved to the maximum possible extent. Our

substantive review of the final Commission legislative maps for

compliance with goals (C) through (F) therefore should be, as the

Court teaches, quite deferential. Under that standard of review,

I cannot conclude that the end result in this case violates the

Constitution.

¶49 I also agree with the Court that, in adopting

legislative maps, the Commission must follow the procedures

mandated in subsections 1(14) and (16). Indeed, our substantive

deference in review of the end product is, in my mind, a

corollary of the Commission’s adherence to the Constitution’s

procedural mandates. In transferring responsibility for

decennial redistricting from the Legislature to a bipartisan

Commission, the people necessarily recognized that the process

involved a series of value judgments; they left those judgments

to the Commission, but required that they be made through a

specific process, so as to optimize consideration of the listed

constitutional goals and minimize the partisan concerns that

traditionally dominate redistricting efforts.

¶50 I part company with the Court’s well-reasoned opinion

only on one point. In my view, the Constitution does not allow

the Commission to advertise a draft map without first making

32
adjustments for all six of the goals specified in subsections

1(14)(A) through (F). I do not believe the Constitution

countenances the procedure used by the Commission here – first

adjusting the grid only for goals (A) through (E), advertising a

draft map, and then only after receiving public comments, turning

to the goal of competitiveness.

I.

¶51 The Constitution, as the Court recognizes, identifies

four phases in the redistricting process. See ¶ 29, supra.

After adopting an initial grid-like map of districts of equal

population in phase one, the Commission undertakes phase two, in

which “[a]djustments to the grid shall then be made as necessary

to accommodate the [six] goals as set forth” in subsections (A)

through (F). Ariz. Const. art. 4, pt. 2, § (1)14. In phase

three, the Commission advertises the draft map resulting from the

phase two adjustments and receives comment. Id. § (1)16. In

phase four, final district boundaries are adopted. Id.

¶52 The Commission did not follow the constitutional

roadmap here. Rather, in phase two it adjusted only for goals

(A) through (E). The Commission then advertised the draft map,

and only after receiving comments considered further adjustments

for competitiveness. The Court concludes that no constitutional

violation occurred because after adjusting for competitiveness,

33
the Commission advertised the adjusted map anew before final

adoption.

¶53 The sequential requirements of subsections 1(14) and

(16), however, are clear – after propounding the initial grid in

phase one, the Commission is required in phase two to make

necessary adjustments to serve all six constitutional goals. The

Constitution plainly states that in phase two “[a]djustments to

the grid shall then be made as necessary to accommodate” goals

(A) through (F). Ariz. Const. art 4, pt. 2, § 1(14) (emphasis

added). The Constitution thus requires that the adjustments be

made before the phase three advertisement of the draft maps and

does not contemplate that consideration of any of the goals be

deferred.17

¶54 The Court suggests that such a constitutional

construction is “overly technical.” See ¶ 40, supra. But I

would strictly construe the Constitution because its plain

language serves an important purpose. Each of the five goals in

subsections (B) through (F) must be accommodated “to the extent

practicable.” Ariz. Const. art. 4, pt. 2, § 1(14)(B)-(F). If

17
If the phase three advertising and comment lead to
significant adjustments to the map, nothing in the Constitution
prevents the Commission from advertising the map anew. My
concern today is not that the Commission undertook steps in
addition to those mandated by the Constitution, but rather that
it did not complete phase two before undertaking phase three.

34
the Commission adjusts only for goals (B) through (E) in a

truncated phase two and then adopts a draft map for

advertisement, it will necessarily already have concluded that

the draft map does the best job practicable of meeting those five

goals. It will thus be quite difficult thereafter for the

Commission to conclude that further adjustments to the map can be

made to serve competiveness, which is only “favored where to do

so would create no significant detriment to the other goals.”

Ariz. Const. art. 4, pt. 2, § 1(14)(F). Such a process

inevitably threatens to relegate the competitiveness goal to

precisely the “secondary role” that the Court correctly abjures.

See ¶ 35 & n.10, supra.

¶55 The current Commission has wisely recommended that its

successor adjust the draft map to reflect all constitutional

goals before advertising it for public comment. See ¶ 43 n.15,

supra. But such a recommendation has no binding effect. I would

make clear that this procedure is not simply preferred, but

rather mandated by the Constitution, and therefore cannot join

Section IV(D) of the Court’s opinion.

II.

¶56 I nonetheless concur with the Court’s ultimate

disposition of this case. Only one cycle of legislative

elections remains under the plan now at issue. As a practical

35
matter, it makes no sense to require a lame-duck Commission to

begin the process anew for only one set of elections. I doubt

that the constitutional procedures could be completed – and

review by the Department of Justice finished – in time for the

2010 elections. Even ignoring time pressures, the product of

such a process would necessarily be based on now well-outdated

census data, resulting in districts malapportioned at birth.

¶57 In addition, as the Court notes, after the Department

of Justice found that the Commission’s initial plan did not pass

Voting Rights Act muster, the Commission effectively was required

to begin anew. See ¶ 10, supra. After an interim plan was

adopted to meet the Department’s concerns, the Commission

adjusted the interim map, at least considering during that

process all six constitutional goals. Id. The effect of the

rejection of the initial plan was therefore to return the

Commission to phase two, and the Commission’s ostensible

consideration of all six goals in the renewed process seems to

satisfy the constitutional procedural framework. I therefore

concur in the result.

__________________________________
Andrew D. Hurwitz, Justice

36
CONCURRING:

_______________________________________
Garye L. Vásquez, Judge*

*
Justice W. Scott Bales has recused himself from this case.
Pursuant to Article 6, Section 3, of the Arizona Constitution,
the Honorable Garye L. Vásquez, Judge of the Arizona Court of
Appeals, Division Two, was designated to sit in this matter.
37