NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

DANIEL M. CONWAY, Plaintiff/Appellant,

v.

ARIZONA INDEPENDENT REDISTRICTING COMMISSION, 

Defendant/Appellee.

No. 1 CA-CV 23-0062 

Appeal from the Superior Court in Maricopa County

No. CV2022-051078

The Honorable Alison S. Bachus, Judge, Retired

AFFIRMED

COUNSEL

Daniel M. Conway, Phoenix

Plaintiff/Appellant

Snell & Wilmer LLP, Phoenix

By Brett W. Johnson, Eric H. Spencer

Co-Counsel for Defendant/Appellee

Herrera Arellano LLP, Phoenix

By Roy Herrera, Daniel A. Arellano

Co-Counsel for Defendant/Appellee

FILED 7-13-2023
CONWAY v. ARIZONA INDEPENDENT

Decision of the Court

2

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Vice 

Chief Judge Randall M. Howe and Judge Jennifer M. Perkins joined.

K I L E Y, Judge:

¶1 Daniel M. Conway (“Conway”) appeals the superior court’s 

dismissal of his complaint challenging the legislative and congressional 

district maps adopted by the Arizona Independent Redistricting 

Commission (the “IRC”) in 2022. Because Conway’s complaint failed to 

state a claim for relief, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2000, Arizona voters approved Proposition 106, 

which amended the Arizona Constitution by creating the IRC and assigning 

it the task of drawing boundary lines for the legislative and congressional 

districts. Ariz. Const. art. IV, pt. 2, § 1. In performing its assigned task, the 

IRC is required to adhere to specified procedures.

¶3 First, the IRC must create a map depicting “districts of equal 

population in a grid-like pattern across the state.” Ariz. Minority Coal. for 

Fair Redistricting v. Ariz. Indep. Redistricting Comm’n (Redistricting I), 220 

Ariz. 587, 597, ¶ 30 (2009) (citing Ariz. Const. art. IV, pt. 2, § 1(14)).

¶4 Next, the IRC must adjust the grid “as necessary to 

accommodate” six delineated goals. Ariz. Const. art. IV, pt. 2, § 1(14). The 

first goal “mandates that districts comply with the United States 

Constitution and the Voting Rights Act,” while the second “requires that . . .

districts have equal population to the extent practicable.” Redistricting I, 220 

Ariz. at 597, ¶ 32 (citing Ariz. Const. art. IV, pt. 2, § 1(14)(A)-(B)). The 

remaining four goals are that, to the extent practicable, (1) districts shall be 

geographically compact and contiguous; (2) district boundaries shall 

respect communities of interest; (3) district lines shall use visible geographic 

features, city, town and county boundaries, and undivided census tracts; 

and (4) establishing competitive districts should be favored when doing so 

would create no significant detriment to the other goals. Ariz. Const. art. 

IV, pt. 2, § 1(14)(C)-(F).
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¶5 Third, the IRC must “advertise a draft map” of the districts

“to the public for comment . . . for at least thirty days.” Id. at § 1(16).

Additionally, the IRC must consider any recommendations made by either 

or both houses of the legislature. Id. Finally, the IRC “must establish final 

district boundaries and certify the new districts to the Secretary of State.”

Redistricting I, 220 Ariz. at 600, ¶ 44 (cleaned up); see Ariz. Const. art. IV, pt. 

2, §§ 1(16)-(17).

¶6 Throughout 2021, the IRC conducted a deliberative process to 

create the congressional and legislative maps at issue in this appeal. In 

preparation, the IRC undertook educational presentations and offered 

numerous public hearings. The mapping consultants considered only “total 

population census data that represent[ed] geographies from the census 

tract to the block level . . . so that every district had equal representation in 

terms of total population.” Indeed, “[e]ach of the 9 Congressional Districts 

and 30 Legislative Districts” reflected on the initial grid maps had “equal 

population of plus or minus (+/-) one person.” In September 2021, the IRC 

unanimously approved the congressional and legislative “grid maps,” 

successfully completing the first step of the redistricting process.

¶7 After adopting the initial grid maps, the IRC conducted more 

public hearings, modifying the maps after considering thousands of 

comments from Arizona citizens and hundreds of proposed maps. The IRC 

completed the second step by adjusting the maps to accommodate the six 

constitutional goals, drafting and re-drafting a series of draft maps over the 

course of the process.

¶8 Upon the IRC’s unanimous approval of the draft maps, the

mapping consultants reviewed the maps “to confirm that each 

congressional and legislative district complied with all six constitutional 

criteria.” The maps were then circulated to the public, and throughout 

November and December 2021, the IRC “held a series of townhalls, [public]

hearings, and informational meetings to help educate Arizonans regarding 

the Draft Maps, solicit public comment, and maintain a high degree of 

transparency.” This process exceeded the minimum 30 days allocated for 

public comment, thus completing the third step.

¶9 The IRC completed the final step in January 2022 when its 

members unanimously adopted the official congressional and legislative 

maps (the “Approved Maps”) and certified them to the Arizona Secretary 

of State.
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¶10 After the IRC adopted and certified the Approved Maps, 

Conway sued the IRC, challenging purported “deficiencies” in the 

Approved Maps and in the process used to create them. These deficiencies, 

he alleges, resulted in both “procedural violations” and “results violations” 

of “the Arizona Constitution as amended by Proposition 106.” He asked 

that the court declare the Approved Maps unconstitutional and order that 

the maps he prepared be adopted in place of the Approved Maps. Conway

later abandoned his request that the proposed maps he drafted be 

substituted in place of the Approved Maps but continued to challenge the 

constitutionality of the Approved Maps.

¶11 The IRC moved to dismiss under Arizona Rule of Civil 

Procedure (“Rule”) 12(b)(6), asserting that Conway’s claims amounted to 

nothing more than “a difference of opinion” over “discretionary mapping 

decisions” that are the “prerogative” of the IRC, which “acts as a legislative 

body,” and so is entitled to judicial deference. After further briefing, the 

court dismissed Conway’s complaint for failure to state a claim for relief.

¶12 After entry of final judgment, Conway timely appealed. We 

have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), -2101(A)(1).

DISCUSSION

¶13 Conway challenges the superior court’s dismissal of his 

complaint, asserting that his complaint identified “four separate areas of 

non-compliance with Arizona Constitutional requirements.” We review the

dismissal of a complaint under Rule 12(b)(6) de novo. Coleman v. City of Mesa, 

230 Ariz. 352, 355, ¶ 7 (2012). Dismissal is appropriate if, as a matter of law, 

the plaintiff “would not be entitled to relief under any interpretation of the 

facts susceptible of proof.” Id. at 356, ¶ 8 (citation omitted). “In determining 

if a complaint states a claim on which relief can be granted, courts must 

assume the truth of all well-pleaded factual allegations and indulge all 

reasonable inferences from those facts, but mere conclusory statements are 

insufficient.” Id. at ¶ 9.

¶14 Courts may not properly “direct how the [IRC] should change 

or improve [redistricting] plans” or “determine which of a number of 

proposed plans is superior.” Ariz. Minority Coal. for Fair Redistricting v. Ariz. 

Indep. Redistricting Comm’n (Redistricting II), 211 Ariz. 337, 344 ¶ 17 (App. 

2005). “Instead, judicial review is . . . confined to” resolving “constitutional 

challenges to the selected plans.” Id. Resolving such constitutional 

challenges “involves a two part analysis to determine (1) whether the [IRC]

followed the constitutionally mandated procedure and (2) whether the 
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[IRC] adopted a final plan that satisfies substantive constitutional 

requirements.” Redistricting I, 220 Ariz. at 596, ¶ 24. Courts undertake that 

analysis in “the expectation that the legislature acts constitutionally.” Id. at 

595, ¶¶ 21-22 (cleaned up); see also Wise v. Lipscomb, 437 U.S. 535, 539 (1978) 

(recognizing that “redistricting and reapportioning legislative bodies is a 

legislative task” that courts “should make every effort not to pre-empt”).

¶15 Conway argues, first, that the IRC failed in its obligation to 

“commence[]” the “mapping process” by preparing “Grid-Like maps.”

Asserting that a “grid-like” map must bear “horizontal and vertical lines,” 

Conway insists that the initial grid maps created by the IRC included 

“misshaped areas” that are insufficiently “grid-like.” The IRC’s failure to 

“correctly interpret the Grid-Like map requirement” at the outset, he 

argues, “direct[ly] cause[d]” the “remaining problems in the mapping 

process,” resulting in a final product that shows “no pattern whatsoever,” 

much less “a Grid-Like pattern.” Pointing to his own proposed maps that 

“show districts formed with horizontal and vertical lines of approximately 

equal populations,” he asserts that his proposed maps depict the requisite 

“grid-like pattern” better than the maps initially drawn by the IRC.

¶16 As the superior court correctly observed, the Arizona 

Constitution does not state that the IRC must prepare initial maps that 

reflect “a grid of only horizon[t]al and vertical lines.” On the contrary, the 

Constitution requires that the maps depict “a grid-like pattern,” a term 

considerably less geometrically precise than the term “grid.” We will not 

interpret “grid-like pattern” to require a rigidity that is not apparent from 

the plain language of the term. See Sun City Home Owners Ass’n v. Ariz. Corp. 

Comm’n, 252 Ariz. 1, 7, ¶ 25 (2021) (“We are obliged to interpret 

constitutional language according to its plain meaning.”).

¶17 Further, Conway’s contention that the proposed district lines 

on the initial maps he drafted were more “grid-like” than the IRC’s, even if 

true, is irrelevant. The initial mapping is intended as nothing more than a 

starting point for the redistricting process. Ariz. Const. art. IV, pt. 2, § 1(14); 

cf. Nadler v. Schwarzenegger, 41 Cal. Rptr. 3d 92, 102 (Cal. Ct. App. 2006) 

(noting that “a preliminary draft [redistricting] plan . . . serve[s] as the 

starting point for legislative consideration of reapportionment” but “has no 

legal status and is certainly not binding upon the Legislature in any way”).

We presume that, when undertaking its duties, the IRC was aware of 

constitutional requirements and found its initial mapping sufficiently 

“grid-like” to constitute an acceptable starting point. Redistricting I, 220 

Ariz. at 595, ¶ 22 (“A redistricting plan receives the same deference as we 

afford to other legislation.”); Roberts v. Spray, 71 Ariz. 60, 70 (1950) (noting 
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that the legislature is “presumed to have known of and had in mind” 

applicable constitutional provisions when enacting legislation). For a court 

to second-guess the IRC’s determination that the initial mapping was 

sufficiently “grid-like” would be to impermissibly intrude into what is 

necessarily a subjective and discretionary legislative determination. 

Redistricting I, 220 Ariz. at 598, ¶ 27 (“We cannot use the constitutional 

requirement that the [IRC] follow a specified procedure . . . as a basis for 

intruding into the discretionary aspects of the legislative process . . . .”). Just 

as a final, certified map is not unconstitutional merely because “another 

entity could offer a ‘better’ redistricting plan,” id., the IRC’s initial grid 

mapping does not give rise to a constitutional claim merely because an 

alternative grid map depicting district lines in a more “grid-like pattern”

could have been created. See Jensen v. Ky. St. 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.”).

¶18 Conway further contends that the district lines drawn in the 

initial mapping should also “comply with as many” of the “secondary 

ideas” listed in Article 4, Part 2, Section 1(14)(A)-(F), of the Arizona 

Constitution “as possible.” He asserts that, “to the extent practicable,” the 

districts shown on the initial mapping should “be geographically compact 

and contiguous,” “respect communities of interest,” and be drawn “us[ing] 

geographic features.” From there, he asserts that the IRC can then make 

further adjustments for the “other requirements” listed in Section 1(14)

while “fine-tuning” its “final maps.”

¶19 Conway’s proposal is directly contrary to the plain wording 

of Section 1(14), which sets forth the step-by-step process that the IRC is to 

follow. Section 1(14) makes clear that the first step in the redistricting 

process is “the creation of districts of equal population in a grid-like pattern 

across the state.” Only then may the IRC make adjustments to 

accommodate the six goals set forth in Section 1(14)(A)-(F). Because courts

apply unambiguous constitutional text as written, Ariz. Free Enter. Club v. 

Hobbs, 253 Ariz. 478, 482, ¶ 10 (2022), we reject Conway’s invitation to 

rewrite Section 1(14) to vary the order in which the IRC applies the relevant 

considerations.

¶20 Second, Conway asserts that the IRC failed to comply with its 

constitutional mandate to adjust the initial mapping to establish districts 

with “equal population to the extent practicable.” According to Conway, 

“the precision in the Approved Congressional District map populations 

and the magnitude of differences in the Approved Legislative District map 
CONWAY v. ARIZONA INDEPENDENT

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populations both represent serious violations of the Arizona Constitution.”

Conway explains that the populations of the congressional districts on the 

Approved Maps are “more exact than the United States Supreme Court 

requirements” while the populations of the legislative districts “vary” 

excessively by “a total of 8.89%.” Conway contends, in other words, that 

the population differences among the congressional districts in the 

Approved Maps are too small while the population differences among the 

legislative districts are too big.

¶21 We see nothing in the United States Constitution, the Arizona 

Constitution, or the Voting Rights Act that forbids the creation of 

congressional districts that are too equal in population. We therefore reject 

as baseless Conway’s complaint that the population equality of the 

congressional districts on the Approved Maps is “more exact” than 

constitutionally necessary.

¶22 We likewise find no support in the law for Conway’s 

challenge to the purportedly excessive variance in the populations of the 

legislative districts on the Approved Maps. Because “it is a practical 

impossibility to arrange legislative districts so that each one has an identical 

number of residents, or citizens, or voters,” Reynolds v. Sims, 377 U.S. 533, 

577 (1964), the United States Supreme Court has long held that federal law

does not require that district populations be equalized with “[p]recise 

mathematical equality,” Karcher v. Daggett, 462 U.S. 725, 730 (1983). We see 

no reason why the Arizona Constitution should impose a more stringent

standard of mathematical exactitude than is required by the United States 

Constitution or the Voting Rights Act. On the contrary, the “equal 

population to the extent practicable” requirement of Section 1(14)(B) is “as 

flexible as . . . federal requirements permit.” Redistricting I, 220 Ariz. at 597, 

¶ 32. Federal courts have long recognized population deviations of less than 

10% to be too small, without more, to raise constitutional concerns. Brown 

v. Thomson, 462 U.S. 835, 842 (1983) (“[A] maximum population deviation 

under 10% falls within [the] category of minor deviations.”); Navajo Nation 

v. Ariz. Indep. Redistricting Comm’n, 230 F. Supp. 2d 998, 1009 (2002) 

(“[M]inor deviations of less than 10% from absolute equality among 

legislative districts are presumptively valid.”). Accepted as true, Conway’s 

assertion that the legislative districts vary by “a total of 8.89%,” by itself, 

establishes nothing more than a minor variation warranting no relief.

¶23 Population variations of less than 10% may support a 

constitutional claim if the plaintiff establishes that the population 

differential resulted from a desire to disadvantage one group for the benefit 

of another or a similarly impermissible motive. See Raleigh Wake Citizens 
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Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 342 (4th Cir. 2016) (holding 

that plaintiffs challenging redistricting plans “with population deviations 

below 10%” must establish “that improper considerations predominate in 

explaining the deviations”); Harris v. Ariz. Indep. Redistricting Comm’n, 993 

F. Supp. 2d 1042, 1072 (D. Ariz. 2014) (recognizing that where “the 

maximum [population] deviation . . . is below ten percent, the burden is on 

plaintiffs to prove that the deviations did not result from the effectuation of 

legitimate redistricting policies.”). Although Conway complains that the 

population variance of 8.89% in the Approved Maps’ legislative districts is 

excessive, he does not allege that the variance is attributable to any 

impermissible motive. Accordingly, the superior court properly concluded 

that Conway failed to state a claim arising out of the population differences 

in the districts reflected on the Approved Maps.

¶24 Third, Conway claims that the IRC “virtually ignored” the 

constitutional goal of “respect[ing] communities of interest” when drawing 

district boundaries. Opining that “what defines a community of interest are 

the common needs and problems residents share that can be addressed by 

government action,” he states, “I believe that these [common needs and 

problems] closely follow geography.” Thus, “mountain and desert areas, 

and rural and urban areas,” Conway concludes, “represent communities of 

interest, and . . . should be so recognized in the redistricting process.”

¶25 We see no basis for Conway’s contention that the term 

“communities of interest” should be limited to geographic considerations. 

On the contrary, the term may encompass communities and groups that 

share a variety of interests and characteristics. Cf. Hall v. Moreno, 270 P.3d 

961, 971, ¶ 46 (Colo. 2012) (recognizing that redistricting goal of preserving 

communities of interest “seeks to create cohesive districts that are 

organized around similar ethnic, cultural, economic, trade area, 

geographic, and demographic factors”) (cleaned up). It is within the IRC’s 

discretion to consider all communities of interest and balance their interests 

against other constitutional goals. Redistricting II, 211 Ariz. at 363, ¶¶ 101-02

(recognizing that “we will not second-guess the [IRC’s] determination to 

balance the Section 1(14) goals” so long as the IRC “had a reasonable basis 

and the manner of [district] selection was not clearly unconstitutional”).

Further, Section 1(14)’s directive that the “potentially conflicting goals be 

balanced against each other” necessarily requires that courts be “quite

deferential” in reviewing the IRC’s weighing of such goals. Redistricting I, 

220 Ariz. at 600, ¶ 48 (Hurwitz, J., concurring).

¶26 The IRC conducted numerous public hearings, both before 

and after drafting the initial maps—a substantial undertaking—to elicit 
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feedback from Arizona citizens throughout the entire redistricting process.

The report the IRC issued when it certified the Approved Maps reflects that 

the IRC “hear[d] extensively from citizens around the state regarding their 

own particular communities of interest” and received information from the 

official State Demographer and other experts regarding population and 

demographic trends in Arizona.

1 Indeed, the IRC Executive Director 

commented that the hearings provided “great feedback, [and] folks really 

appreciate[d] . . . the opportunity to share their thoughts and opinions on 

what their communities of interest are.”

¶27 Conway does not dispute that the IRC considered 

communities of interest but insists that the IRC should have prioritized 

geographic communities of interest over all others. A court cannot, 

however, substitute its judgment for that of the IRC’s on discretionary 

matters. See Redistricting I, 220 Ariz. at 596, ¶ 27. And because a court’s 

review is limited to whether the IRC “followed the mandated procedure,”

id. at ¶¶ 24, 26, and not the weight the IRC gave to subjective criteria, the 

superior court correctly found that it could not “second-guess the 

discretionary judgments that were made by the [IRC].” The court did not 

err when it concluded that Conway failed to state a claim upon which relief 

may be granted regarding the IRC’s failure to construe the term 

“communities of interest” solely in geographic terms.

¶28 Finally, Conway contends that the IRC did not sufficiently 

consider “visible geographic features, city, town and county boundaries,

and undivided census tracts” in drawing district lines, resulting in “[t]he 

excessive splitting of Cities and Counties in both the Congressional and 

Legislative District” boundaries. Conway explains that the legislative 

district lines on the Approved Maps “split[] seven counties a total of fifteen 

times” while the proposed maps that he drafted split those counties only 

“thirteen times.” Likewise, he goes on, the legislative district lines on the 

1 Although a court generally looks only to the pleadings in adjudicating a 

Rule 12(b)(6) motion to dismiss, Coleman, 230 Ariz. at 356, ¶ 9, the court here 

took judicial notice of the IRC’s report without objection by Conway. We 

may therefore consider the IRC’s report on appeal. See Garrett v. Platt &

Westby PC, 1 CA-CV 20-0195, 2020 WL 7705607, at *2, ¶ 10 (Ariz. App. Dec. 

29, 2020) (mem. decision) (“In reviewing a superior court’s finding that a 

complaint failed to state a claim, this court looks to the pleading itself, as 

well as to documents properly considered by the superior court, including 

items for which judicial notice was taken.”); cf. State v. McGuire, 124 Ariz. 

64, 66 (App. 1978) (“An appellate court can take judicial notice of any matter 

of which the trial court may take judicial notice[.]”).
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Approved Maps “split” the City of Phoenix among “twelve districts” while 

his proposed maps divide Phoenix among only “seven districts.”

¶29 The IRC’s report makes clear that the IRC did consider this 

constitutional goal in completing its work. Noting that its mapping 

consultants “advised that visible geographic features included landmarks 

such as rivers, canals, hills/mountains, historical roads, and railroad

tracks” “helps voters understand the boundaries of their district,” the IRC 

reported that it “made several changes to Draft Maps” to “draw lines using 

visible geographic features” and “political subdivision boundaries.”

¶30 Conway does not dispute that the IRC considered this 

constitutional goal but instead challenges the conclusions that the IRC 

reached. We cannot second-guess the IRC’s judgment. See id. at 597, ¶ 28. 

“We cannot use the constitutional requirement that the [IRC] follow a 

specified procedure . . . as a basis for intruding into the discretionary aspects 

of the legislative process and then . . . base our review on whether we 

conclude that the courts or another entity could offer a ‘better’ redistricting 

plan.” Id. at 596, ¶ 27. Accordingly, the mere “fact that a ‘better’ plan exists 

does not establish that [the IRC’s] plan lacks a reasonable basis.” Id. at 600, 

¶ 46. The superior court correctly found that Conway failed to state a claim 

upon which relief may be granted here.

CONCLUSION

¶31 We affirm the superior court’s dismissal of Conway’s 

complaint for failure to state a claim against the IRC.