[EL] AZ lawsuit declaring redist. commissions illegal gets a federal panel

[Scarberry, Mark]

I’ve copied below a post I sent to this list and the conlawprof list in 2010 concerning a Florida constitutional amendment dealing with redistricting. It references the discussions on the conlawprof list during the 2000 election dispute. The key point is that Smiley v. Holme seems to resolve this Arizona redistricting issue in favor of the AZ constitutional provision setting up the commission. (Whether Smiley was correctly decided is a different question, but only the Supreme Court can revisit it.) Note that

“Smiley held that redistricting under Art. I, sec. 4, cl. 1 was a lawmaking
function under which the state's apparatus for making law was controlling; thus
a governor's veto of a redistricting bill was effective. The reference in I, 4,
1 to ‘legislature’ was a reference not to the legislative bodies in the state
government but rather to the state's lawmaking apparatus as set up in the state
constitution. Thus the legislature did not have plenary power to redistrict but
only the role assigned by the state in the making of law.”


Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



POST FROM 2010:

I took the position [in 2000] that state legislatures have
plenary power under Art. II, sec. 1, cl. 2 to determine the manner of
appointment of presidential electors, and that the Fla. Const. (and in
particular the Fla. S. Ct.'s view of the requirements of the Fla. Const.) could
not limit the Fla. legislature in the exercise of that plenary power given
directly to the legislature by the US Constitution.

The question ended up to some extent being how to reconcile three S. Ct.
decisions: Smiley v. Holme (1932), Hawke v. Smith (1920), and McPherson v.
Blacker (1892). (I suppose we could include Davis v. Hildebrandt (1916) as
well, as discussed below.)
Smiley held that redistricting under Art. I, sec. 4, cl. 1 was a lawmaking
function under which the state's apparatus for making law was controlling; thus
a governor's veto of a redistricting bill was effective. The reference in I, 4,
1 to "legislature" was a reference not to the legislative bodies in the state
government but rather to the state's lawmaking apparatus as set up in the state
constitution. Thus the legislature did not have plenary power to redistrict but
only the role assigned by the state in the making of law. …

Hawke held that a state constitution could not require that proposed US
constitutional amendments be put to a vote of the people of the state; under
Article V a proposed constitutional amendment could be ratified by a state in
only two ways, either by a vote of the legislature or by a convention.
Legislature means legislature in that context, not the state's lawmaking
apparatus.
McPherson held that a state's legislature has plenary power over the manner of
appointment of presidential electors. (Prof. Bryan Wildenthal and I had a
vigorous debate on the conlawprof list over the interpretation of McPherson,
and I think it's fair to say we ended up agreeing that it recognized the
legislature's plenary power.)
Some of us argued that the Florida Supreme Court (relying on its interpretation
of the Fla. Constitution) was departing from the Fla. legislature's statutory
scheme for choice of presidential electors. A key question then in Bush v. Gore
seemed to be whether choice of presidential electors was more like ratification
of a constitutional amendment (in which case the state constitution could not
limit the legislature's role per Hawke) or more like redistricting (in which,
per Smiley, the state's lawmaking mechanisms were recognized even if the
legislature's role were as a result limited). Smiley involved procedure only;
the state legislatures were not to choose the members of Congress but only set
up the procedures under which voters could choose them, and Congress could even
override the state laws on the subject if it chose to do so. Hawke involved
substance only; to the extent conventions were not used for ratification, the
substantive decision as to whether to ratify or not was granted to the state
legislature. The presidential elector question had elements of both; the state
legislature could set up a process in which someone else would make the
substantive decision (by providing that the manner of appointment of electors
would be by vote of the people), but the state legislature also could make the
substantive choice itself, as the Court in McPherson (and I think also in the
Palm Beach County case during the 2000 election dispute) recognized. McPherson
seemed to put the choice of presidential electors clearly on the Hawke side
rather than the Smiley side.

…



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Douglas Johnson
Sent: Friday, June 15, 2012 12:49 PM
To: 'law-election at UCI.edu'
Subject: Re: [EL] AZ lawsuit declaring redist. commissions illegal gets a federal panel

FYI:

http://azcapitoltimes.com/news/2012/06/15/panel-of-judges-to-hear-arizona-redistricting-case/


A three-judge panel will be appointed to hear the Arizona Legislature’s lawsuit challenging the state’s new congressional districts.

U.S. District Judge Paul Rosenblatt granted a motion requesting the appointment. The motion was filed by lawyers for Republican legislative leaders who acted on behalf of the Legislature.

Rosenblatt will serve on the panel and the chief judge of the U.S. 9th Circuit Court of Appeals will appoint the other two members.
The lawsuit contends Arizona’s use of an appointed commission to draw congressional districts violates a constitutional provision that says state legislatures are to decide election procedures.

This case is a longshot, but if successful it would bring down Commissions in other states too (including CA).

- Doug

Douglas Johnson
Fellow
Rose Institute of State and Local Government
m 310-200-2058
o 909-621-8159
douglas.johnson at cmc.edu




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