Arizona Redistricting Commission narrows search for legal counsel

The Arizona Independent Redistricting Commission chose four finalists to serve as its legal counsel, and in the process jettisoned the state’s procurement process, giving it wider latitude to choose the attorneys of its choice.

Choosing legal counsel is a potentially divisive step in the commission’s process, one that set the stage for months of partisan infighting and disagreements at the last commission in 2011. The current commission has expressed an interest in choosing Republican and Democratic co-counsel, as its two predecessors did.

At their meeting on Tuesday, the commissioners evaluated the nine firms that submitted proposals to serve as legal counsel and narrowed the list of candidates to four, who will be invited to give presentations to the AIRC at its meeting next week. The four firms are Ballard Spahr, Osborn Maledon, Snell and Wilmer, and Statecraft.

Ballard Spahr and Osborn Maledon served as AIRC co-counsel in 2011, with Ballard representing the Republican side and Osborn the Democratic. The attorney who currently leads Ballard Spahr’s election law practice is a Democrat. Statecraft is a prominent Republican firm, It’s unclear which side of the aisle Snell and Wilmer would represent if it were selected.

Republican Commissioner David Mehl said he wants to ask each firm whether it would be able to adequately represent both sides of the political divide, and how well it would be able to work with the other firms on the list.

“I believe that we are in a position where we have not yet said whether we’ll end up with one law firm or two law firms, so I’d certainly encourage a question, several questions in that regard,” Mehl said.

If the commission chooses Ballard Spahr and Statecraft, it would be a reunion of sorts: Statecraft’s Kory Langhofer and Ballard Spahr’s Roy Herrera are former partners. Last year, Langhofer served as Donald Trump’s Arizona campaign counsel, while Herrera filled the same role in Arizona for Joe Biden’s campaign.

Republican election attorney Timothy La Sota is working with Statecraft as part of its proposal to serve as redistricting counsel.

Before the commission could choose finalists, it had to make a big decision on whether to use the state’s procurement process, overseen by the Arizona Department of Administration, or to use its own procurement authority, which narrowed its choices but gave it far more discretion in choosing its attorneys.

If the commission used the procurement process, it could have hired any of the nine firms that submitted proposals. But it would have had to use an objective scoring metric, which it developed last week, and would have been bound to select the firms with the highest scores. Procurement would have also required the commission to do much of its work behind closed doors in executive session.

By choosing to use its own independent procurement authority, the commission limited its choices to the seven law firms that are already on the attorney general’s pre-existing list of outside counsel that can contract with the state, which have already been vetted through the state’s procurement process. But the AIRC can choose whichever firms it wants, independent of any scoring rubrics.

“We’ll have more control and room to maneuver if we go with option B,” Erika Neuberg, the commission’s independent chair, told her colleagues.

Each commissioner listed the firms it was most interested in, and most favored firms from the attorney general’s list. Democratic Commissioner Derrick Watchman said his top two were the two firms that weren’t on the list — Cantelme & Brown, and a joint proposal by Coppersmith Schermer & Brockelman and Nielsen Merksamer — though he nonetheless agreed to scrap the procurement process after the commission discussed the matter in executive session.

Had the commission opted for the procurement process, there would be no guarantee that any commissioner would get his or her top choice, because decisions would be dictated by the scoring metric the AIRC used to rank the applicants.

The last commission’s deviations from the strictures of the procurement process caused problems a decade ago, when the State Procurement Office, a subdivision of the Arizona Department of Administration, terminated its relationship with the AIRC because it “frequently pursued direction other than that offered by SPO.”

Neuberg warned the other commissioners about the limitations of procurement and the potential blowback if the AIRC selected that option, only to deviate from the requirements.

“We all sit in isolation and rank based on these empirical markers, and the highest score wins. And for us to override that empirical process, legally I’m sure we could fight our way to do that. But the question is, do we want to subject ourselves to that?” she said.

If the commission is unsatisfied after hearing from the four finalists at its meeting next Tuesday, it reserves the option of changing course and switching to the state procurement process.

The selection of legal counsel will be the second big hiring decision the commission makes, and comes as Democrats are grumbling about its decision in the first. The AIRC earlier this month hired Brian Schmitt, the chief of staff to GOP Phoenix City Councilman Jim Waring, to serve as its executive director. The decision was a 3-2 vote, with the commission’s two Democrats voting in opposition, and a number of Democrats have raised concerns due to Schmitt’s work for Waring and some work he did last year for Republican U.S. Sen. Martha McSally’s campaign. It was the first time an Arizona redistricting commission did not unanimously select an executive director.

Neuberg noted that some of the public comments the AIRC received last week expressed concerns about the commission’s hiring of Schmitt and the lack of consensus in the decision. But she emphasized that she is committed to diversity on the commission’s staff, not only racially but also in regard to politics and ideology, a commitment that she said Schmitt shares.

Republican Commissioner Doug York said the commission understands the state’s concerns, but noted that they’re all there to represent different factions. Republican and legislative leaders in the Arizona House of Representatives and Senate each select one commissioner, and those four select a fifth person to serve as the independent chair.

“So, some decisions might not be totally in line with everyone’s belief. But from our standpoint, we are representing the factions that have chosen us. With that, I think we’re trying hard to be independent, but we will continue to sort of march on,” York said.

Several other major hiring decisions are on the horizon for the AIRC.

The AIRC has paused its search for a deputy executive director until Schmitt begins work on April 5. In the interim, the commissioners decided on Tuesday to form a two-person subcommittee consisting of York and Democratic Commissioner Shereen Lerner to vet the 42 applicants for the position, which they’ll do alongside Schmitt.

The commission will soon post a job opening for a public information officer, a position Neuberg said would be a “central cog” in the AIRC’s work and would serve as its liaison to various communities of interest around the state.

Another major hiring decision, and one that caused a great deal of friction on the last commission, is the selection of a mapping consultant that will assist the AIRC in its duties of drawing legislative and congressional districts. Neuberg acknowledged that mapping consulting is a niche service, but said she was disappointed that the commission only received three applications.

The commissioners raised the possibility of closing out the bid and opening a new one in an attempt to attract more proposals, though Mehl voiced skepticism that the move would result in more applicants. The commissioners decided to hold off on making any decisions regarding the mapping consultant.

The three applicants are: HaystaqDNA, which includes members of the firm Strategic Telemetry, which served as the previous commission’s consultant in 2011-12; Timmons Group, which is working with National Demographics Corporation, the consultant for the first commission in 2001-12; and Taylor English Decisions.