[EL] Analysis: Supreme Court Looks to Endanger Citizen Redistricting Commissions and MORE
Rick Hasen
rhasen at law.uci.edu
Mon Mar 2 11:43:20 PST 2015
I read Kennedy as much more skeptical than you do. Especially in
relation to his 17th amendment point.
On 3/2/15 11:40 AM, Marty Lederman wrote:
> No need for alarm just yet, Rick. Yes, I think there are almost
> certainly four votes against Arizona on the constitutional question.
> But Kennedy was very careful this morning not to tip his hand on where
> he stands--he plainly has concerns with the views being offered by
> both sides.
>
> Moreover, although none of the Justices appeared to be very interested
> in the standing and statutory arguments (except for the Chief and
> Alito, who were deeply skeptical), the Court itself asked the parties
> to address them, and they certainly offer a way out -- and a way to
> uphold the commission -- if the Justices don't wish to resolve the
> constitutional question. FWIW, I agree with Justice Breyer that
> Smiley and Hildebrandt do not much help /either /side on the
> constitutional question, except that they foreclose the idea that
> "legislature" has precisely the same meaning wherever it appears in
> the Constitution. On the other hand, I think /Hildebrandt /is very
> strong support for the statutory argument, if the Justices are
> inclined to go that route.
>
> On Mon, Mar 2, 2015 at 2:18 PM, Rick Hasen <rhasen at law.uci.edu
> <mailto:rhasen at law.uci.edu>> wrote:
>
>
> 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.]
>
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> 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 <tel:949.824.3072> - office
> 949.824.0495 <tel:949.824.0495> - fax
> rhasen at law.uci.edu <mailto:rhasen at law.uci.edu>
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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--
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
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