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 
2 

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 
3 

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 
4 

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 
5 

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 
6 

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. 
7 

¶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. 
8 

(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 
9 

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. 
10 

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. 
11 

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. 
12 

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 
13 

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. 
14 

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 
15 

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)). 
16 

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 
17 

. . . .” 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). 
18 

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 
19 

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 
20 

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 preempt. 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. 
21 

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 
22 

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. 
23 

¶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. 
24 

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. 
25 

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. 
26 

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 
27 

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 thirtyday 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 
28 

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. 
29 

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. 
30 

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 
31 

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. 
32 

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 
33 

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, 
34 

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. 
35 

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 
36 

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 
37 

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.