[EL] Arizona Legislature v. AOIC, No. 13-1314

[Marty Lederman]

Cross-posting to CONLAWPROF, Lawcourts, and Election Law, as this is a case
at the intersection of all three:



As many of you may know, the Supreme Court will soon consider the
above-captioned case, in which the Arizona legislature is suing in federal
court to enjoin state officials from implementing a congressional
redistricting map drawn by the Arizona Independent Redistricting
Commission--a process prescribed by the Arizona Constitution, pursuant to a
recent voter initiative.  The Legislature claims that the Arizona
constitutional scheme unconstitutionally strips the state legislature of an
authority that the Elections Clause guarantees to the legislature.



The merits of the question are very interesting -- so much so that I'm
using it as a principal case in my CONLAW class this semester.  Steve
Vladeck and I were wondering as well, however, about an antecedent question
that some of you might be able to answer:



Have there been any other cases, in the history of the Constitution, in
which a state legislature (or group of legislators) has sued state
executive officials in federal court, arguing that a state law violates the
federal Constitution?  (*Coleman v. Miller *is the closest analogy that
comes to mind; but even that case, distinguishable on several grounds,
originated in state court.)



FYI, the Court has asked the parties to brief whether the Arizona
legislature has Article III standing.  We'd be interested in hearing any
thoughts of yours on that question, as well.  We were wondering, in
particular, whether what the Court might be getting at is better viewed
more as a matter of sovereign immunity than of standing.  (It's possible
the Court framed the question in terms of standing because the defendants
apparently have not raised a sovereign immunity defense.)



In *Virginia Office of Protection Agency v. Stewart* (2011), in the context
of a preserved sovereign immunity claim, several of the Justices appeared
to be quite concerned about recognizing a suit -- even an Ex parte Young
action for prospective relief -- by an agency of the state against the
state itself.  Dictum in Part C-3 of the Scalia majority, reflecting
concerns raised in a Kennedy/Thomas concurrence, suggested that such a suit
might be justiciable only where, inter alia, state law authorizes the
agency to sue the state, "free from any internal veto wielded by the state
government," which cannot occur "without the consent of the State that
created the agency and defined its powers."  (The Roberts/Alito dissent
would have actually foreclosed the Ex parte Young suit by the state agency
in *VOPA* itself, because "a state agency su[ing] officials acting on
behalf of the State in federal court . . . has never happened before.".)



Might there be a similar such restriction vis-a-vis state legislatures that
wish to sue the state?  And, if so, is that better viewed as a sovereign
immunity issue (which might have been waived), or possibly as an article
III question?



Thanks in advance for any thoughts.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150107/28ea2425/attachment.html>