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

Mon Mar 2 11:40:24 PST 2015

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> wrote:

>    Analysis: Supreme Court Looks to Endanger Citizen Redistricting
> Commissions and MORE <http://electionlawblog.org/?p=70645>
> Posted on March 2, 2015 10:41 am <http://electionlawblog.org/?p=70645> by Rick
> 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 crucial legislative 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, it seemed
> 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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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
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