On June 7, the Arizona legislature filed a lawsuit in federal court, arguing that the U.S. Constitution’s Article One requires that only state legislatures can draw U.S. House district boundaries. In Arizona, an independent redistricting commission draws the boundaries.
The Arizona legislature has a large Republican majority. A few months ago, Republicans were so displeased with the 2011 U.S. House district boundaries that Republican Governor Jan Brewer and the State Senate removed the chair of the redistricting commission. However, the State Supreme Court then reinstated the Chair.
The case is Arizona State Legislature v Arizona Independent Redistricting Commission, 2:12cv-1211. The Complaint asks for a three-judge court.
Ridiculous. The “legislature” is whatever body legislates. The Arizona Constitution gives legislative authority to the people directly through initiatives. Consequently, in Arizona, “the legislature” includes the people first and has our two legislative houses subordinate to the people. So when the people instituted the independent redistricting commission by initiative, that was a decision of the “legislature” of Arizona.
If our House and Senate want to reassert the right to draw districts, they should put a constitutional amendment on the ballot to that effect.
SCOTUS ruled on the point circa 1911 — regarding popular initiatives.
P.R. and nonpartisan App.V.
If you want to read the lawsuit, I have it linked at the Arizona Eagletarian blog.
http://stevemuratore.blogspot.com/2012/06/redistricting-here-we-go-again-az-lege.html
The Legislature’s argument is difficult to rebut. Article I delegates to state “Legislatures” the power to regulate federal elections, and the Supreme Court has said on a couple of occasions that this is quite different from affording “States” the power. That Arizona’s Constitution authorizes citizen initiatives–which generally override legislative choices–is not controlling in the context of federal elections. In my opinion the Legislature is correct. You can look at my article at http://www.dartmouthlawjournal.org/archives.php (7.3.5) for the details behind this conclusion.
Re: Mark Brown – Read your article. The relevant cases, as you present them, do not seem to support your conclusion. Most relevantly:
State of Ohio ex. rel. Davis v. Hildebrant held that referendum procedures could apply to election law decisions reserved to state “legislatures” specifically because the use of referendum was part of the state’s legislative power and thus any decision made pursuant to it should be considered made by the “legislature” of the state. This clearly supports the Redistricting Commission in this case.
Hawke v. Smith said that a state’s approval of a constitutional amendment could not be subject to referendum because such approval was reserved to the state “legislature.” It’s reason for doing so, however, was that it was a decision representing mere approval of the amendment, NOT LEGISLATION. Thus, Hawke is plainly not on point in the present case.
Your best support comes from Justice Stevens’ dissent in Bush v. Palm Beach County Canvassing Board, in which he specifically states (while citing only very weak authority) that enactments by initiative are not enactments of a state “legislature” under the election clause. That would be pretty damning, except that it’s merely a dissent, not one single other Justice joined in that part of the dissent, and the dissenting Justice is not even on the Court anymore. Indeed, the fact that no other Justice would join (J. Ginsburg joined as to the other part of the dissent, but not that part) suggests that the other Justices specifically do not agree.
Most of your other authority has to do with the extent to which “legislature” can include the decisions of the other branches of state government. The people of Arizona are not a separate branch of government, however. Their authority to legislate is contained in Article IV of the Arizona Constitution, titled “Legislative Department.”
In sum, the weight of Supreme Court authority plainly supports an understanding that, under the Arizona Constitution, an act by the people through the initiative process should be understood as a decision of the “legislature” for the purposes of the election clause.
# 5. I think that AZ could require a referendum; but that is different from yoking from the legislature the authority in the first instance to draw districts. And I think the authorities I cite support this conclusion (ambiguous as they may be). Of course, there is no answer right now, only arguments on both sides. But my impression is that the legislature has the better argument in AZ. Not that I like it. I would rather see commissions do the job. I am simply reporting what the cases logically suggest.
#5 I think you mean Justice Stevens dissent in California Democratic Party v Jones.
The Supreme Court generally avoids issues that it doesn’t have to address. Stevens was in a way contradicting himself – the blanket primary was constitutional, but it might not have been created in a constitutional fashion. He finished up that part of his argument with:
“Because the point was neither raised by the parties nor discussed by the courts below, I reserve judgment on it. I believe, however, that the importance of the point merits further attention.”
He was simply inviting a claim based on that argument. Justice Ginsburg was willing to agree that the blanket primary was constitutional, but saw no reason to support Steven’s conjecture.
The other 5 justices thought the blanket primary was unconstitutional, so it was irrelevant whether it was also created in an unconstitutional manner.
In Branch v Smith, the US Supreme Court ducked the issue of whether a state court could legislate the manner by which US representatives were elected.
In Tashjian v Republican Party, the issue of whether the elective franchise for Congress must be the same as it was for the larger branch of the legislature had been raised in the lower courts.
Justice Stevens, said that they had to be the same, so that political association issues should not have been addressed. That is, the Republican party could not have a broader franchise for congressional primaries than it had for the Connecticut House.
Justice Scalia joined Stevens’ opinion, but he also wrote his own dissent based on the political association issue. Justice Marshal who wrote the opinion for the 5-member majority, acknowledged that the constitution’s rule for the electoral franchise for congressional elections applied to primaries as well – but that may simply because he was the lawyer who argued Smith v Allwright. But because the majority wanted to address the political association issue, he mumbled on without really saying what the constitution provided. The Nebraska Attorney General later issued an opinion based on Tashjian where he admitted he couldn’t really be sure what Marshall was saying.
#5 Congress has authority to require States to elect representatives by district. But Congress may only do so by passing a law. If the President vetoed a bill providing for election by district, then States would not be required to elect by district. That is, the elections clause is understood to incorporate the role of the President in the legislative process.
Similarly, States provide for a role for the governor in the legislative process through the veto power, and in some States control over what legislation that is considered, particularly in special sessions. Some State constitutions provide a referendum, where the People may veto a law passed by the legislature (and governor). The US Supreme Court has ruled that both such actions (gubernatorial and popular veto) are part of the legislative process.
The US Supreme Court has never ruled that popular initiative is part of the legislative process.
And consider in particular the use of the initiative to modify a State constitution. The People are not acting as the legislature of the State when they amend the constitution, since the legislature itself is a creation of the constitution. They are instead exercising their inherent right to erect or modify their form of government. They are certainly free to change the form of their legislature (eg Nebraska’s unicameral legislature), or set the numbers, terms, and qualifications of legislators. They may grant a governor veto power, and proscribe procedural rules for the passing legislation. They may even restrict the subject matter of legislation.
But the regulation of the times, places, and manner of congressional elections is not an inherent power of a State, or the People of a State. It is a power granted to the legislature (legislative power) of a State by the US Constitution.
The States of Arizona and California have completely removed the authority of their legislatures to prescribe certain aspects of the manner by which representatives are elected.