AZ State Legislature v. AZ Indep. Redistricting (13-1314)
As recounted here, the Supreme Court is today hearing the case of Arizona State Legislature vs. the Arizona Independent Redistricting Commission, which consists of two Democrats, two Republicans and an independent agreed upon by both groups. The Republicans, who currently control five of nine congressional districts, claim that the Constitution gives them the total right to draw their own districts, independent of any commissions the voters may establish. The part they quoting, Article 1, Section 4 of the Constitution grants legislatures the power to decide “The Times, Places and Manner of holding Elections.”, but I’m not sure if that would include giving whatever party is in power the right to gerrymander the hell out of the state without recourse.
Except that Congress can put limitations on electing representatives beyond those in the Constitution. Why are states forced to elect by district and not at-large or proportionally? Because USC requires election by districts. In fact, that part is the second part of the clause you quoted
Also, districting needs to follow the equal protection rules set forth by SCOTUS such as roughly equal population and not disenfranchising a protected class.
Also, I think it is pretty well established as a political question (Bush v. Gore is just one example. The current Obama/immigration orders are another) that if a legislature has a certain power given to them by the State or Federal Constitution and they choose by statute to give that power to another body (Executive Branch, independent commission, etc.) then they cannot claim that that body is acting outside of its legal authority.
I don’t know if any of those are involved in this particular case but it certainly shows the state legislature cannot do whatever they want.
Since Congress hasn’t legislated on this matter, that part of the constitution doesn’t really come into play. Seems like it boils down to whether or not a ballot initiative is considered part of the legislative process, and that could well vary by state. And what if the AZ passes a law stating that a ballot initiative is subordinated to the legislative process?
Also. looking at the AZ districting, it doesn’t appear to be particular gerrymandered. At least not on the surface.
This lawsuit is a long shot. Notwithstanding the grant of power to “the Legislature thereof”, the Supreme Court has consistently held redistricting to be an ordinary exercise in state lawmaking, subject to participation by governors (exercising vetoes), voters (acting by initiative), and courts as a state may allow. I don’t see why creation by law of an independent commission should be any different.
Congress actually has legislated on this matter. They said that districts are to be drawn “in the manner provided by the law” of the State. This lawsuit indirectly challenges that statute by saying that the only constitutionally permissible “manner” that state law may allow is one more directly involving the legislature.
None of the precedents are exactly on point, in the sense that none involved an independent commission which removed the legislature entirely from drawing district lines. The Zen of the earlier decisions, however, is that districting is an exercise in lawmaking like any other.
Here is the only way I can think that this lawsuit can work. Bear in mind that I don’t think it will but here’s how I would argue it.
The Arizona Constitution was neither written by or approved by the state legislature. Therefore using the initiative process to assume the Legislature’s right to decide of the method to elect representatives & presidential electors is unconstitutional.
IF the initiative process were implemented by statute or an amendment the Legislature approved of, this would be different but that is not the case here.
Well, right. It’s Congress saying that the state may use any means that it provides for by law. The point is that Congress evidently did not think it necessary to limit redistricting to statutory enactments, or to any other particular process.
True enough…but as the dissent at the district court points out, the two cases that have upheld non-legislature distracting decisions (voter initiative that rejects legislature-drawn boundaries and governor veto of legislature districts) both involved significant legislative involvement.
Still, my view is that words have their ordinary meaning. If a voter initiative is part of “the state legislature” and a governor’s veto is equally part of a “state legislature,” then it’s hard to fathom how a commission created by voter initiative, under state law, is not.
I would think so too, except at the argument (requires PDF), Scalia, Roberts, Alito and Kennedy all seemed dubious that “Legislature” means anything except the legislative body alone. I know it’s a mug’s game to make predictions based on oral argument, but I wouldn’t give good odds on the commission surviving.
No one seemed impressed by the standing argument at all, which does surprise me. It just feels unseemly to me that the legislature of a state is asking a federal court for relief from its own citizens. I’m not a huge fan of initiative myself, but they’re actually in a position to do something about it if they have a mind to.
Let me ask this. No one would disagree that the Constitution gives the state Legislature sole right to determine how to select presidential electors. Suppose a state’s voters pass an initiative to make elector apportionment purely proportional. Let’s make it California so that the Libertarian Party gets 8% of the vote and therefore 5 electors. Is that law constitutional if the Legislature disagrees with it?
“Legislature,” is a word that means (at least based on the scant precedent available) the entirety of the state’s statutory and constitutional law-making apparatus. It includes the elected legislators (obviously), the governor when he uses his veto power (Smiley v. Holm), and the citizen initiative process (Ohio ex. rel. Davis v. Hildebrant).
I agree with this, but it is actually a little different from the point I was making.
Regardless of whether a citizen initiative counts as an act of the “legislature,” there is an independent question of whether Congress has overridden whatever the legislature wants pursuant to the exception to the constitutional clause in question (i.e., “but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”).
If it is the case that Congress has legislated that any mechanism of state law may be used to redistrict, and if that exercise of law-making is done pursuant to the above-quoted clause, then it doesn’t matter if a citizen initiative counts as an act of the legislature or not.
So before the XVIIth Amendment, could a governor veto a Legislatures appointment of a Senator? Could the citizenry have appointed a Senator via the initiative?
Ummm … didn’t Hildebrant only address the referendum and not the initiative? And wasn’t that Clement’s whole point? The ASL’s position is that Hildebrant and Smiley do not apply since we are not talking about veto here (Smiley - governor’s veto & Hildebrant - citizen veto (referendum) ) but rather the initiative taking the elected body out of the process completely?
Another question, Smiley and Hildebrant refer to the state’s law making process as part of the “legislature” and thus vetos are part of that process - and maybe initiatives too [we’ll find out I guess]. But a strict reading of the Constitution would indicate that at least at a federal level, state legislatures do not need to select electors and arrange congressional elections via creating a law. They could just declare that that’s the way it will be (IIRC Florida was considering doing this in 2000 although that would have violated USC) and it would be constitutional. How would SCOTUS feel about that?
