Opinion
CV 02-0799-PHX-ROS, CV 02-0807-PHX-ROS (Consolidated)
May 16, 2002
ROSLYN O. SILVER, SUSAN R. BOLTON, United States District Judges
ORDER
At the hearing held on May 10, 2002 the three-judge court ("Court") ordered the parties to provide briefing on May 13, 2002 regarding the nature and scope of the litigation specifically addressing the jurisdiction of this Court and ordered responsive briefing to be filed on May 14, 2002. The pleadings were timely filed, and have been considered by the Court.
This Order is not a complete and final exposition of the legal findings of the Court, but is designed to provide counsel with prompt and necessary guidance to prepare for the hearing which will commence at 8:00 a.m. May 20, 2002 and continue, if necessary, through May 23, 2002.
DISCUSSION
It is undisputed that (1) the Independent Redistricting Commission's ("IRC") legislative plan has been submitted to the United States Attorney General, Department of Justice ("DOJ"), for preclearance pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 01973c; 28 C.F.R. § 51.18(c) and to date a decision has not been issued by DOJ, (2) because of significant population deviations Arizona's 1994 legislative districts are presently unconstitutional, in violation of the Equal Protection Clause of the Fourteenth Amendment of United States Constitution, (3) there is an emergency caused by the impending elections this fall.
Presently the parties' disputes generally center on:
(1) the nature of the emergency and in particular whether an exigency exists which would authorize this Court to immediately approve an interim plan,
(2) if an exigency exists whether this Court has the authority, and should approve for the fall elections as the interim plan, the 2002 IRC plan,
(3) if this Court finds no exigency exists what interim plan will be used for the 2002 fall elections.
(4) if this Court must exercise its remedial powers and draw the Arizona legislative voting district lines for the 2002 elections, should this Court give deference to the 2002 IRC plan,
(5) should the Court merely be guided by or is it required to apply the legislative policies of the State of Arizona,
(6) alternatively, should the Court approve the Navajo Preferred Plan ("Navajo plan") for the 2002 elections or merely evaluate it in determining the plan.
The Court independently raised questions concerning whether a three-judge panel convened pursuant to 28 U.s.c. section 2284 has authority to hear Voting Rights Act claims. The Court has considered the applicable authorities addressing this issue, and has tentatively concluded that if it is necessary for this Court to undertake the task of drawing the Arizona legislative voting district lines for the 2002 elections, evidence tending to prove Voting Rights Act violations concerning proposed plans for determining the ultimate shape of the districts is relevant evidence. See, The Three-Judge District Court In Voting Rights Litigation, U. Mich. J.L. Ref. 79, 95 (1996).
Regarding the parties' presently disputed issues, what follows will govern the proceedings commencing on May 20, 2002.
Because the Court finds that the status of DOJ preclearance is critical to the nature and structure of this litigation, the May 20th hearing will begin with a presentation by a DOJ representative on the current status of preclearance including the time remaining for the final decision and when it will be issued. If DOJ reports that preclearance is imminent the authority and responsibilities of this Court will diminish if not completely disappear. J however, the timing of the DOJ decision places the fall elections schedule and the attendant responsibilities of preparing for them in peril, this Court will grapple with the vexing issues of evaluating proposed plans and drawing new legislative districts. Colgrove v. Green, 328 U.S. 549, 556 (1946).
Second on the agenda for the May 20th hearing will be the taking of evidence supporting a declaration by the Court that the current Arizona legislative districts are unconstitutional. Counsel for the parties are to meet and confer, and make all reasonable efforts to agree upon stipulated admissible evidence to proffer to the Court at the hearing, preferably in the nature of affidavits and stipulated exhibits rather than testimony.
The remainder of the scheduled hearing is completely dependent on the report from the DOJ representative. If the preclearance decision is impending the Court will enter any necessary orders, such as altering candidate petitioner filing deadlines to permit the DOJ decision to be issued before reconvening the hearing. If the preclearance decision endangers preparation for, and holding of, fall elections, the Court will consider evidence from the IRC that an exigency exists warranting the Court's approval of the IRC Plan as the interim plan without preclearance pursuant to 28 C.F.R. § 51.18(c). This segment of the hearing will occupy only two hours. Again, counsel for the parties are to meet and confer and make all reasonable efforts to agree upon stipulated admissible evidence on this matter. The Court will impose on counsel constraints on the number of witnesses and the time for examination of witnesses.
If the Court rules against the IRC on this issue the Court will hear evidence supporting and opposing the two competing plans as well as evidence concerning whether the Court must devise its own plan configuring the legislative districts. This portion of the hearing will occupy the remainder of the time schedule for the hearing ending May 23, 2002. Again, counsel are to meet and confer and to make all reasonable efforts to agree upon stipulated admissible evidence, and the Court will impose limitations on the number of witnesses and the length of their testimony.
Anticipating that the Court may ultimately be destined to evaluate and approve one of the proposed plans or undertake drawing the legislative districts, counsel for the parties devoted the bulk of their briefing to arguing the attributes of their proposed plans or reasons for the Court to devise or not to devise its own plan. Concomitantly, the IRC and friendly parties relying on Upham v. A.M Seamon, 456 U.S. 37(1982) and its progeny argued that the Court "must give full deference to government-sponsored redistricting [IRC] plans." (AFLR's Reply at 1) In contradiction, the Navajo Nation and friendly parties argued that Lopez v. Monterey County, 519 U.S. 9, 20 (1996) completely precludes this Court from implementing the IRC plan or giving it any deference, because it has not been precleared.
The Court finds the opinions can be reconciled and do not support the broad propositions offered by either party. In Upham, the district court when faced with a congressional redistricting plan to which the DOJ objected, modified the objected-to districts, but also made additional adjustments to comply with the requirements for court ordered plans. The Supreme Court reversed, holding that unobjected to parts of the state's plan were to be preferred so long as they did not violated federal law. Id. 43. Here the DOJ has not yet objected or accepted the IRC plan. Hence, the only holding applicable to this matter, which is frequently quoted, is that in devising a plan respect must be given to "legislative preferences" but not necessarily to the state's plan itself. Abrams v. Johnson, 521 U.S. 47 (1977). In Lopez, the Supreme Court addressed Monterey County's unprecleared electoral system for electing county judges. The quote from the decision on which the Navajo Nation places reliance for the position that a state sponsored plan is entitled to no deference is "But where a court adopts a proposal "reflecting the policy choices . . . of the people [in a covered jurisdiction] . . . the preclearance requirement of the Voting Rights Act is applicable." This quote, however, must be considered in the context of the problematic history of this case which initially arose as a question of whether the specific legislative changes made in Monterey County required preclearance. Significantly, Upham is not cited in Lopez, and the Supreme Court does not sub silentio overrule previous opinions.
Should the Court need to engage in evaluation, approval and devising of an appropriate plan, the Court will respect the Arizona legislative preferences, follow Arizona policy to the extent possible, White v. Weiser, 142 U.S. 782, 785 (1973), and will consider modifications to the IRC plan, if DOJ objects to some of it, only to the extent necessary to remedy any violation of federal law including the Voting Rights Act. Upham; Abrams. Accordingly,
IT IS HEREBY ORDERED that the hearing will begin May 20, 2002 at 8:00 a.m. in the Special Proceedings Courtroom at the United States Courthouse and will continue until May 23, 2002.
IT IS HEREBY FURTHER ORDERED that the Agenda set forth in the body of this order will govern the presentation of evidence at the hearing.
IT IS FURTHER ORDERED that counsel for all parties are to meet and confer and make all reasonable efforts to agree upon stipulated admissible evidence to proffer to the Court at the hearing, preferable in the form of affidavits and stipulated exhibits rather than testimony.
IT IS FURTHER ORDERED that in anticipation of a report from DOJ requiring the Court to consider evidence from the IRC concerning whether an exigency exists warranting the Court's approval of the IRC plan without preclearance, pursuant to 28 C.F.R. § 51.18(c) counsel are to meet and confer and make all reasonable efforts to agree upon stipulated admissible evidence on this matter. The parties are to file with the Court on the morning of the hearing beginning on May 20, 2002 the stipulated schedule, allocating the time for all parties to present all the evidence on this issue.
IT IS FURTHER ORDERED that in anticipation of the necessity of the Court hearing evidence supporting and opposing the two competing plans and whether the Court must devise its own plan, counsel are to meet and confer and make reasonable efforts to agree upon the stipulated admissible evidence and decide how the hearing time will be allocated among the parties to allow for the hearing to end at 5:00 p.m. May 23, 2002. The parties are to file with the Court on the morning of the hearing beginning on Mary 20, 2002 the stipulated schedule, allocating the time for all parties to present all the evidence on this issue. The Court will not permit opening or closing arguments, but may decide at the end of the hearing to accept post hearing briefing.
IT IS FURTHER ORDERED that the parties are to file their list of witnesses with the Court, a copy to all Judges by 5:00 p.m. May 17, 2002 and work with the Court's courtroom deputies and technical staff to resolve all issues concerning exhibits and presentation of evidence,
Judge Berzon concurs with regard to the rulings made in this Order regarding future proceedings, but not in the statements regarding the governing legal standards. She prefers to defer all conclusions regarding the governing legal standards until the conclusion of the evidentiary hearing.