The Arizona Independent Redistricting Commission unanimously selected separate Democratic and Republican law firms to serve as its legal counsel, avoiding a key pitfall that opened an irreparable rift on the commission a decade ago and set the stage for months of partisan acrimony.
After several hours of interviews, the commissioners took less than a half hour to reach an agreement on which of four firms to select. Ballard Spahr will serve as the commission’s Democratic co-counsel and Snell & Wilmer will be the Republican co-counsel.
Going into Tuesday’s meeting, the commission hadn’t made a final decision on whether to pick one firm to represent it or two firms who would be Democratic and Republican co-counsel, though the commissioners had been openly leaning toward the latter, following the precedent set by the first two AIRCs. After hearing presentations from the four firms and interviewing the attorneys who would constitute the commission’s legal team, they opted for the two-firm approach.
It became quickly apparent that the unanimous consensus was for the AIRC to select partisan co-counsels, an approach that the previous two commissions took to ensure that both the Democratic and Republican commissioners had attorneys they’d be comfortable with.
“This obviously is going to be a challenging process. I hate to say it, but we’re in a big political divide nationally and locally. I think it would serve the commission well to have two firms,” said Democratic Commissioner Derrick Watchman.
Both firms are well-established in Arizona’s political community. Snell & Wilmer is known locally for representing high-profile candidates and organizations on the Republican side of the aisle, such as Gov. Doug Ducey and the Arizona Chamber of Commerce. Ballard Spahr represented U.S. Sen. Mark Kelly’s campaign and President Joe Biden’s campaign in Arizona last year.
Snell & Wilmer pitched itself as a firm that could represent both sides. The commissioners favored the two-firm approach, but Republican members David Mehl and Doug York preferred Snell & Wilmer to Statecraft, the other GOP firm that made the list of finalists.
“They obviously have the depth and the experience, I think they have the reputation. For the Republican firm I think they would be a very solid choice and really covered all of the major bases that I would’ve expected them to cover,” Mehl said of Snell & Wilmer.
Though the commission chose Snell & Wilmer as its Republican co-counsel, AIRC Chairwoman Erika Neuberg, an independent, said she “really appreciated the fact that they worked toward bipartisanship.”
The Republican commissioners said they thought Statecraft had good credentials and gave a good presentation, but were concerned that the firm was too small to handle the commission’s needs.
In choosing Ballard Spahr, the commission opted for a law firm that represented the last AIRC that drew the current congressional and legislative districts in 2011. At the time, Ballard Spahr attorney Joe Kanefield was the commission’s Republican co-counsel.
Osborn Maledon, another of the four finalists, was the Democratic co-counsel for the last commission. Mehl said he viewed Osborn Maledon as too partisan, and was wary of choosing a firm so closely tied to the 2011 commission, which was beset by constant partisan infighting.
The disagreements within the last commission began when it selected its legal counsel. The two Republicans favored a different GOP attorney, but their Democratic colleagues and the independent chairwoman banded together to select both attorneys over the objections of the Republican commissioners. The relationship between the two factions worsened amid later disagreements, but the dispute over the attorneys set the stage for months of bitter feuding.
Snell & Wilmer also has ties to the previous AIRC. Attorney Brett Johnson was the lead attorney on a lawsuit alleging that the commission illegally ignored some of the Arizona Constituton’s redistricting criteria. A Maricopa County Superior Court judge ultimately ruled in the commission’s favor, rejecting the claims.
Johnson told the commission that his legal fight against the last commission gives him a great deal of familiarity with the criteria that the AIRC must follow when drawing congressional and legislative districts.
Roy Herrera, who heads up Ballard Spahr’s political law practice, told the commission that lack of experience in redistricting isn’t necessarily a problem when it comes to representing the AIRC. Because the process only occurs once per decade, direct experience can be hard to come by. But Ballard Spahr’s election attorneys already advise their clients on many of the principles and legal concepts that the redistricting commission will have to confront.
Both of the winning firms talked at length about the importance of the Voting Rights Act, which has undergone significant changes since the last commission completed its work. Arizona used to be subject to a provision of the landmark voting rights law known as “preclearance,” meaning it had to get approval from the U.S. Department of Justice before implementing any changes to voting or election laws, including changes to district boundaries.
In 2013, the U.S. Supreme Court struck down the formula that the Voting Right Act used to determine who was subject to preclearance, freeing Arizona from that requirement. But though Arizona no longer needs preclearance, Snell & Wilmer attorney Eric Spencer said that doesn’t mean the commission shouldn’t still pay deference to it.
“I say, act like there is preclearance, protect minority communities with vigor as if we still had to go through that process,” Spencer said.
And Herrera reminded the commission that Section 2 of the Voting Rights Act, which bars discriminatory voting and election laws, is still a likely avenue for legal challenges to the AIRC’s maps.
“VRA was designed as sort of a sword-and-shield concept,” he said. “We still have Section 2, so people could still bring a lawsuit over vote dilution or racial gerrymandering.”
Both law firms spoke of the need to protect the commission from future litigation over the Voting Rights Act or other issues. Though it may be impossible to prevent lawsuits, they said legal counsel can help lay the groundwork for the AIRC to ultimately prevail by creating a strong record that will hold up in court.
“You can never avoid risk, but you can try your best to mitigate it,” Johnson said.