By: Freeman Halle

Every ten years, states undertake the arduous task of divvying up the electoral pie through the redistricting process. Traditionally, this process has been entirely controlled by state legislatures, and most states have retained this model: politicians draw their districts, and the incumbent majority wields the pen. In Arizona, however, the process has been controlled by an independent redistricting commission (AIRC) since 2000. This five-member body has produced the legislative and congressional districts maps in the last two cycles and is in the final stages of hammering out its third set of maps.

Per the Arizona Constitution, the AIRC is required to start the process from scratch by drawing equally populated districts across Arizona in a grid pattern. Then, the commission can make adjustments as necessary to achieve the following five goals:

  1. Districts shall comply with the United States Constitution and the United States voting rights act;
  2. Congressional districts shall have equal population to the extent practicable, and state legislative districts shall have equal population to the extent practicable;
  3. Districts shall be geographically compact and contiguous to the extent practicable;
  4. District boundaries shall respect communities of interest to the extent practicable;
  5. To the extent practicable, district lines shall use visible geographic features, city, town and county boundaries, and undivided census tracts;
  6. To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals.

This all sounds well and good, but how do these guidelines actually shape the Commission’s deliberations, and what happens when a districting decision brings two or more of these goals into conflict? In this post, we’ll investigate points A and F and how the Commission balances the need to empower minority communities to elect their preferred candidates against the need for politically competitive districts.

Creating Competitive Districts 

In the 2019 case Rucho v. Common Cause, the U.S. Supreme Court declared that federal courts could no longer hear challenges to political gerrymandering.[1] The majority opinion, penned by Chief Justice Roberts, held these disputes to be non-justiciable political questions best left to politicians, not judges.[2] However, this ruling did not preclude states from adopting anti-gerrymandering measures at a local level, or state courts from enforcing them. Indeed, Arizona’s Constitution demands that the AIRC make a good faith effort to draw politically competitive districts unless doing so would create a “significant detriment” to another goal. The Arizona Supreme Court has said that the competitiveness goal is no less mandatory than the others and should not be assigned secondary importance.[3] However, one goal that is frequently seen as being in tension with this requirement is point A, and specifically the requirements of the Voting Rights Act.

Compliance With the U.S. Constitution and the Voting Rights Act

Section 2 of the VRA provides that “no voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”[4] In Thornburg v. Gingles the U.S. Supreme Court held that district maps which divided minority communities in ways that diluted their voting power and denied them the opportunity to elect their candidates of choice violated this provision.[5] To succeed on such a claim, however, the Court established three threshold factors (the “Gingles factors”) that must be satisfied: first, the plaintiff must show that the State could have drawn and additional, compact majority-minority district but failed to do so; second, that the minority group is politically cohesive; and third, that the white electorate votes as a bloc, thereby enabling them to defeat the minority community’s candidates of choice.[6]

Gingles and subsequent vote dilution cases addressed situations where sizeable minority populations were denied the opportunity to elect their preferred candidates because they had been fragmented and merged into districts that were unfavorable to their preferred candidates – so-called “cracking.” But the push to create majority-minority districts eventually spawned a new problem; “packing.” In the context of racial gerrymandering, this refers to the process of cramming minority voters into fewer districts. An antidote to this phenomenon lies in the 14th Amendment’s Equal Protection Clause and the doctrine developed by the Supreme Court in Shaw v. Reno and Legislative Black Caucus v. Alabama.

Shaw v. Reno challenged a North Carolina plan that would have created a second majority-black district by manipulating the lines to capture voters who lived directly on either side of the interstate.[7] The state defended this district as necessary to create another majority-minority district, while the voters argued that in placing too much emphasis on race, the state had violated the 14th Amendment. The Supreme Court agreed with the voters.[8] If racial considerations predominate over traditional districting principles, courts must subject the map to strict scrutiny. Under this test, the State must show that it had a compelling interest that justified its reliance on race, and that the resulting map was narrowly tailored to achieve that goal. To demonstrate a compelling interest under this test, the State must show that it would have likely lost a Section 2 lawsuit if it had not grouped minority voters together.[9]

Legislative Black Caucus v. Alabama involved a suit by Black voters against the State of Alabama over the state’s decision to retain the same percentage of Black voters in its majority-minority districts as had existed in the previous electoral maps.[10] Applying the Shaw test, the Court found that race had predominated in the State’s districting process, and therefore was subject to strict scrutiny. The State argued that it had a compelling interest in complying with the VRA, which it claimed required it to maintain at least the same percentage of minority voters in each majority-minority district. The Supreme Court disagreed, holding that the VRA “does not “requir[e] the State to maintain the same percentage of Black voters in each of the majority-black districts as had existed in the prior districting plans . . . .”[11] Rather, it “prohibits only those diminutions of a minority group’s proportionate strength that strip the group within a district of its existing ability to elect its candidates of choice.”[12] For example, if a district was only 48% minority voters, but 10% of the White population voted for the minority community’s preferred candidate, a VRA suit would not likely succeed.

The Struggle for Southern Arizona: A Closer Look at CD 6 and 7

The tension between creating politically competitive districts and maintaining minority “ability to elect” districts played up in AIRC’s deliberations on how to divvy up southern Arizona, particularly Congressional Districts 6 and 7. In the last round of maps, CD 3 and CD 7 – the districts of Representatives Gallego and Grijalva, respectively – were Arizona’s majority-minority Hispanic/Latinx districts. In the new maps, CD 3 and CD 7 have swapped numbers, but are set to retain their majority-minority status with a 51% Hispanic/Latinx citizen-voting-age-population (CVAP) in each. Both districts are seen as safely Democratic districts. But are they being kept too safe at the expense of competitiveness in neighboring districts?

The competitiveness of CD 6, currently held by Congresswoman Ann Kirkpatrick (D), was a hotly contested issue for the AIRC. In the 2011 maps, CD 6 leaned Democrat by about 2% of the vote. An early draft map retained this partisan advantage, but, by the penultimate draft, it had flipped to a solidly red district with a 3.8% vote spread in favor of Republicans. This drew criticism from the two Democrats on the Commission as well as from the independent Chair, Erika Neuberg who said “we’re going to have to fight about CD6, and whether my Democratic colleagues help me on it — I’m not comfortable with where it has gone, and we need further, you know, thought about what that balance is, again, as it relates to ensuring VRA compliance with CD6, communities of interest, and compactness.”[13]

The final draft remedied this partisan tilt to some extent, pulling it back to a 2.4% vote spread in favor of Republicans, while simultaneously ejecting 2% of the district’s Hispanic/Latinx CVAP, placing them in CD-7. This maneuver left Commissioner Shereen Lerner, a Democrat, vexed. Lerner argued that the Commission was failing to maximize competitiveness in the district and accused Republican Commissioner David Mehl of making “surgical” changes to add Republicans to CD6 while packing Hispanic/Latinx voters into CD-7 without need.”[14] Mehl defended the changes as necessary to better honor communities of interest and to make CD-7 compliant with the VRA.[15]

Below are draft map versions 12.1 (left) and 13.9, the final map (right). The most visible difference between the two is the addition of a thin stretch of borderland from Cochise County to CD-7. This addition incorporates the town of Bisbee and Douglas to CD-7 and encompasses a population of approximately 26,000 according to the open-source districting platform Districtr. Democratic voters account for almost 70% of the population and 62% of the voting age population in this area is Hispanic/Latinx, or just over 16,000 people. Moving this population into CD-7 accounted for a 2% boost in the Hispanic/Latinx CVAP of the District, bringing the total from 49% to 51%. In light of the requirement that districts comply with county boundaries to the extent practicable, there would need to be a countervailing interest to support this decision.

Because not all the AIRC’s session transcripts are publicly available, it is hard to know the exact calculus behind the Bisbee-Douglas extension of CD-7 and which considerations weighed most heavily on the outcome. On the one hand, Commissioner Mehl advocated for the change saying it would “even better achieve . . . VRA compliance” to “pick up Bisbee and Douglas . . . [bringing] in additional Hispanic voters that I think will take that CVAP to over 50%.”[16] On the other hand, Commissioner Douglas York offered the race-neutral justification that it would unite border communities into a single district and unify those communities’ advocacy vis-à-vis Federal funding for border infrastructure.[17] If race did predominate this decision, however, the State would need to show that it was necessary to remain compliant with the VRA and, based on the Supreme Court’s holding in Legislative Black Caucus v. Alabama, it probably was not.

In Legislative Black Caucus, the Supreme Court held that a mechanical approach to minority voting power under the VRA is inappropriate. Just because a 51% minority CVAP would protect the community’s ability to elect candidates of choice does not necessarily make it necessary to achieve that end. So long as the minority community maintains the opportunity to elect their candidate of choice, there is no VRA issue, and the state’s interest in creating a majority-minority district will not suffice to justify its heavy reliance on race. In map 12.1, the vote spread was projected to be 37.2% in favor of Democrats – a safe district by any metric and making it superfluous to carve out an additional 16,000 predominantly Democrat-leaning Hispanic/Latinx voters from CD-6.

Shelby County v. Holder and the End of Preclearance

This redistricting cycle in Arizona is interesting for another reason pertaining to the VRA, the end of preclearance. Section 5 of the VRA required certain jurisdictions, of which Arizona was one, to submit any proposed change to their voting rules or regulations to a federal authority for approval, either the DOJ or a three-judge panel in the District of Columbia. This put the burden of proving that new maps did not violate Section 2 on the State. Whether states would be subjected to the preclearance regime was determined by a formula articulated in Section 4 of the VRA. In Shelby County v. Holder, the Supreme Court held that this formula was outdated and could no longer justify what the majority saw as a drastic departure from the principle of “equal sovereignty.”[18] Thus, this is Arizona’s first round of redistricting where it will no longer be required to obtain Federal approval.

What does this mean for Arizona? To the extent that viable VRA claims do exist, if at all, the elimination of preclearance shifts the burden of litigating these challenges onto those adversely impacted by the maps. At the same time, the Supreme Court has shown reluctance to intervene too close to an election out of concern that it will cause undue confusion and burden on candidates, voters, and election administrators. Although reasonable on its face, the Court recently stretched the Purcell Principle, as this nonintervention policy is referred to as, to justify denying a stay of an allegedly racially gerrymandered map in Alabama, notwithstanding the fact that the general election was still nine months away at the time of its ruling.[19] In view of these developments, it seems likely that the AIRC’s maps will govern the 2022 midterms regardless of whether they are challenged in court.

[1] 139 S. Ct. 2484 (2019).

[2] See id. at 2508.

[3] Ariz. Minority Coalition for Fair Redistricting v. Ariz. Indep. Redistricting Comm’n, 208 P.3d 676, 687 (Ariz. 2009).

[4] Voting Rights Act of 1965 §2, 52 U.S.C. §10301.

[5] 478 U.S.30 (1986).

[6] Id. at 50-51.

[7] 509 U.S. 630 (1993).

[8] Id. at 649.

[9] See e.g. Bush v. Vera, 517 U.S. 952 (1996).

[10] 575 U.S. 254 (2015).

[11] Id. at 276.

[12] Id.

[13] Reporter’s Transcript of Final Decision Public Meeting, Morning Session, State of Ariz. Indep. Redistricting Comm’n 37 (Dec. 21, 2021),

[14] Reporter’s Transcript of Videoconference Public Meeting, State of Ariz. Indep. Redistricting Comm’n 101 (Jan. 18, 2022),

[15] Id. at 91.

[16] Reporter’s Transcript of Final Decision Public Meeting, Morning Session, State of Ariz. Indep. Redistricting Comm’n 39 (Dec. 21, 2021),

[17] Id. at 59.

[18] 570 U.S. 529, 555 (2013).

[19] See Merrill v. Milligan, 21-1086 2022 U.S. LEXIS 760 (U.S. 2022).

Freeman (he/him) is a 2L and International Rule of Law and Security Fellow at the Sandra Day O’Connor College of Law. Freeman hopes to pursue a career in international law after graduation, either working working with NGOs or an intergovernmental organization. His interests include international dispute resolution, political law, and development. Freeman is an aspiring homebrewer and an avid skier.