[EL] Analysis: Supreme Court Looks to Endanger Citizen Redistricting Commissions and MORE

[Rick Hasen]

    Analysis: Supreme Court Looks to Endanger Citizen Redistricting
    Commissions and MORE <http://electionlawblog.org/?p=70645>

Posted onMarch 2, 2015 10:41 am 
<http://electionlawblog.org/?p=70645>byRick Hasen 
<http://electionlawblog.org/?author=3>

I have now had a chance to review the transcript 
<http://electionlawblog.org/wp-content/uploads/arizona-transcript.pdf> in Arizona 
State Legislature v. Arizona Independent Redistricting Commission and 
the news is not good. It appears that the conservative Justices may be 
ready to hold that citizen redistricting commissions which have no role 
for state legislatures in drawing congressional districts are 
unconstitutional. What’s worse, such a ruling would endanger other 
election laws passed by voter initiative trying to regulate 
congressional elections, such as open primaries. For those who don’t 
like campaign finance laws because they could protect incumbents, this 
is a ruling that could make incumbency protection all the worse, 
removing the cruciallegislative bypass 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348131>which is the 
initiative process (for congressional elections).

The question in the case arises from the Constitution’s Elections 
Clause, giving each state “legislature” the power to set the rules for 
Congressional elections if Congress does not act. The key question is 
whether the people, acting through a state’s initiative process as 
lawmakers, are acting as the legislature for purpose of this clause. If 
not, redistricting done without the involvement of the legislature would 
be unconstitutional. (Before the Court agreed to take the case, itseemed 
settled <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1065421>that 
Legislature could include the initiative process of a state.)

 From my read of the transcript, Chief Justice Roberts, Justice Scalia, 
Justice Alito, and Justice Kennedy all seemed skeptical that the word 
“legislature” used in the Elections Clause could refer to an initiated 
redistricting process in which the legislature is not involved. Part of 
this turns on what Legislature meant at the time of the Constitution’s 
drafting, as well as the use of the term Legislature in other parts of 
the Constitution which seems to more clearly refer to the representative 
body. Of course, there was no regular initiative process at the time of 
the founding, but that fact can cut either way.  There are also two 
precedents which seemed to support the broader reading of “legislature,” 
but not only the conservatives, but also Justice Breyer, did not believe 
those cases settled the case.

When you add in Justice Thomas, who is likely to join fellow 
conservatives in reading Legislature in the narrow textual way, and 
possibly Justice Breyer, that looks like a majority which will reject a 
redistricting commission in which the state has no involvement.

What’s worse, Justice Scalia and others suggested that Congress (which 
has primary power over congressional elections) could not simply 
authorize redistricting commissions for drawing districts, because doing 
so would be an end run around the alternative power given to state 
legislatures.

And if the Court opens this pandora’s box, it is not clear how far it 
goes.  Can legislatures be partially involved in the process? What if 
there is a veto power for either the legislature or a commission over 
alternative plans.  And how far would this stop other laws affecting 
congressional elections passed by initiative?  Justice Kagan asked:

    Well, Mr. Clement, well how about that, because I thought that the
    legislature was completely cut out as to most of those things. I
    mean, you take the 2011 law in Mississippi adopting voter ID
    requirements; 2007, Oregon, vote by mal; 1962, Arkansas, use of
    voting machines. All of things, these things were done by referendum
    or by initative with the legislative process completely cut out. So
    would all of those be unconstitutional as well? And we can go
    further. Im ean, there are zillions of these laws.

The worst part is that the initiative process is the best way to deal 
with legislative self-interest in the political process. And the Court 
seems poised to take away the one tool to keep down partisan 
gerrymandering, to keep the legislature honest, and to make sure the 
current process protects the will of the people.

What a shame.

[This post has been edited.]

Share 
<https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D70645&title=Analysis%3A%20Supreme%20Court%20Looks%20to%20Endanger%20Citizen%20Redistricting%20Commissions%20and%20MORE&description=>
Posted incitizen commissions 
<http://electionlawblog.org/?cat=7>,Elections Clause 
<http://electionlawblog.org/?cat=70>,redistricting 
<http://electionlawblog.org/?cat=6>,Supreme Court 
<http://electionlawblog.org/?cat=29>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150302/39871fb0/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150302/39871fb0/attachment.png>