[EL] Analysis: Supreme Court Looks to Endanger Citizen Redistricting Commissions and MORE
David A. Holtzman
David at HoltzmanLaw.com
Tue Mar 3 18:38:07 PST 2015
Unless I’m missing something, nobody is saying that if Arizona’s elected
legislature passed the exact same redistricting law, that law would be
unconstitutional.(Same for California’s.)Nobody’s saying that an elected
legislature can’t prescribe a process that involves randomness, like
drawing a letter to determine the order candidates appear on a
ballot.Nobody’s saying that the elected legislature would thereby be
delegating a non-delegable duty. Or unconstitutionally abjuring its
power to review and overturn something.
I’m pleased to see Justice Kagan’s questioning below.It may mark a shift
from the Proposition 8 standing case.Perhaps the Court is not actually
poised to disrespect once again the voters’ ability to constitute
themselves as a state “legislature.”
Under California law, the people (voters) are pretty much the state’s
“Supreme Legislature.”A legislative body that can pass an “Initiative
Statute” or an “Initiative Constitutional Amendment.”(And that really
should be allowed to defend same in federal court.)A legislative body
that makes decisions which the elected legislature can’t overturn.A
legislative body that can overrule the decisions of its inferior assembly.
(You might be saying, aha!Redistricting procedures shouldn’t be
enshrined in state *constitutions* because state constitutions bind
future legislatures!Good point.Note, however, that at least in
California, initiative statutes - not just state constitutional
amendments - can bind future elected legislatures.And that California
voters can always re-amend the State Constitution - albeit with the same
very high level of difficulty that it took to get the first amendment on
the ballot and passed.)
I’m very pleased to see Rick’s observation that “the initiative process
is the best way to deal with legislative self-interest in the political
process.”That’s a hugely important observation that [EL] members in
states without the initiative may wish to ponder.
But I am outraged right now about how easy it is for elected legislators
to put things on the ballot that *promote* their self-interest.On the
Los Angeles city ballot today is a city Charter Amendment (the
equivalent of a Constitutional Amendment for the city) that would extend
the next terms of city councilmembers to five-and-a-half years, from
four, effectively letting termed-out politicians stay in office for
extra time without having to face their districts’ voters again.
And most L.A. council districts don’t have any city candidate elections
to vote on today.So it’s particularly inappropriate to have the measure
on today’s ballot.(Of course the architect of the measure has been
running a GOTV campaign in his district for his reelection
campaign....)Rick already linked to my Los Angeles Daily News oped on
the subject, but here
<http://www.dailynews.com/opinion/20150224/la-youre-being-played-by-politicians-guest-commentary>
it is again.
- dah
On 3/2/2015 11:43 AM, Rick Hasen wrote:
> 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.]
>>
>> 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 <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
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> <mailto:Law-election at department-lists.uci.edu>
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>>
>
> --
> 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
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com
Notice: This email (including any files transmitted with it) may be
confidential, for use only by intended recipients. If you are not an
intended recipient or a person responsible for delivering this email to
an intended recipient, be advised that you have received this email in
error and that any use, dissemination, forwarding, printing or copying
of this email is strictly prohibited. If you have received this email
in error, please immediately notify the sender and discard all copies.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150303/6e64dd9a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150303/6e64dd9a/attachment.png>
View list directory