Members of the Independent Redistricting Commission want a federal judge to rule that state lawmakers are wrong in saying only they get to draw lines for congressional districts.
In legal papers filed in U.S. District Court, attorneys for the commission acknowledge that the U.S. Constitution does say that the manner of selecting members of Congress "shall be prescribed in each state by the Legislature.'' And it was the commission created the maps used last decade and again last year for the coming decade.
The lawyers, however, told Judge Paul Rosenblatt that process is legal.
Hanging in the balance is who gets to create the decennial maps from now on that divide the state into what are currently nine congressional districts. Handing the chore back to the Legislature -- where it was before voters altered the Arizona Constitution in 2000 -- would mean the party in control there could get to draw the lines in a manner more favorable to its interests.
But House Speaker Andy Tobin, R-Paulden, who has been leading the legal challenge, said the maps drawn up by the commission are biased in favor of Democrats.
Worse yet, Tobin said, the five commissioners are selected by lawmakers, making them immune to public pressure and input. He said legislators, by contrast, have to answer directly to voters every two years.
The case, however, will turn on that language in the U.S. Constitution.
Commission attorneys Joe Kanefield and Mary O'Grady said the flaw in the legal challenge is that state lawmakers -- or at least the Republicans who dominate the Legislature and authorized the lawsuit -- believe that term "Legislature'' means only the body that makes state laws.
"However, the Supreme Court has made clear that the term refers to the entire lawmaking process of the state, and not just the state's legislative body,'' the lawyers wrote.
That starts, they said, with the power of people to create their own laws through the initiative and referendum process. In fact, it was just such a process, outside the scope of the Legislature, that led to creation of the Independent Redistricting Commission.
They also pointed out that Congress has not used its power to override voter-created redistricting commissions in Arizona and elsewhere, even though the Constitution gives it the power to do just that.
The larger issue, according to the attorneys, is where the ultimate power resides.
"Fundamental to Arizona's structure of government is that the people, while establishing the Legislature and vesting it with legislative power, nonetheless also reserved legislative power for themselves,'' the commission's lawyers argued.
In this case, they said, the voters exercised that power to create the Independent Redistricting Commission, specifically giving that body to draw the boundaries not just for congressional districts but also legislative districts, which are not an issue in this lawsuit. And the whole system was made a part of the Arizona Constitution, "thereby establishing the commission as a legislative body.''
And they said the Arizona Supreme Court, in a separate matter, has concluded the commission "acts as a legislative body.''
Finally, the commission's attorneys told Rosenblatt he should toss the case if for no other reason than it has now been a dozen years since the system was approved.
"If the Legislature believed that the creation of an independent commission to engage in the redistricting of Arizona's congressional district violated the (U.S. Constitution's) Elections Clause, it should have filed suit in 2000,'' the lawyers argued. Instead, they not only waited 12 years but waited until the lines were drawn for the races in 2012 and beyond and those maps had been given the required review by the U.S. Department of Justice.
Lawmakers, in their challenge, have agreed not to try to upset the lines for this year's congressional elections. But they want a ruling from Rosenblatt in time to redraw the maps before 2014.
The case before Rosenblatt is actually one of three against the commission.
Another federal court lawsuit alleges that commissioners did not follow the proper procedures when dividing up the state into its 30 legislative districts. The next hearing on that case is at the end of October.
And a similar challenge is pending in Maricopa County Superior Court over how the maps were drawn for the congressional districts. That case goes before a judge later this month.