On October 2, the U.S. Supreme Court agreed to hear Williams-Yulee v Florida Bar, 13-1499. The plaintiff was a candidate for state judge in a Florida election. She sent a mass e-mail to thousands of individuals on lists that she felt might be interested in her campaign, asking for small campaign contributions. She was disciplined because the Florida Bar does not permit candidate for judge to ask anyone for a campaign contribution. Instead, the candidate is supposed to have a campaign manager who makes the request.
Also on October 2, the Court surprisingly agreed to hear Arizona State Legislature v Arizona Independent Redistricting Commission, 13-1314. The Court warned that after the oral argument in this case, it is possible the conclusion will be that the Court should never have taken the case. Article One of the U.S. Constitution says “legislatures” are supposed to write election laws for Congressional elections (unless Congress decides to supercede that power). Arizona has an independent redistricting commission. The Arizona legislature wants the power to draw U.S. House district boundaries, so it sued, arguing that Article One means only legislatures can draw district boundaries.
If the Court rules in favor of the Arizona legislature, that would mean that certain ballot access rules might also be invalid. For example, in Pennsylvania, the state Elections Department set the August 1 petition deadline. The legislature did not set that deadline.
Court had to take it, I think. Arizona Legislature should prevail, in my opinion.
The courts order says:
“Further consideration of the question of jurisdiction is POSTPONED to the hearing of the case on the merits limited to the following question: Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts?”
If you read 2 USC §2a(c) carefully, it says that redistricting should be conducted in the manner provided by the laws of the State. Clearly the People of Arizona have the right to pass laws via the initiative.
So even if the SCOTUS were to determine that the People acting through the initiative are not “the legislature” specified in Section 1, Congress may have overridden the sole authority of the legislature to redistrict.
Article 1, says “the legislature” (singular) should provide manner regulations.
It does not say that a legislature could not delegate certain aspects of the election to other bodies or officials.
If the Pennsylvania legislature set a deadline for the SOS to certify candidates, and also gave her the authority to receive and count signatures, the legislature may have implicitly given the authority to set a deadline for receipt of petitions.
Will the 5 SCOTUS rightwingers wipe out the Voters initiatives in about 30 States ???
i.e. back to the ANTI-Democracy gerrymander DARK AGE of the late 1800s ???
Well that is the question, isn’t it?
I believe that delegation can be proper, under certain circumstances. But it has to be clear, as I have written in my academic works. I don’t think the Arizona legislature delegated authority in this case. Nor did Ohio’s legislature, as found by Judge Sargus, in LPO v. Brunner (S.D. Ohio 2008).
The SCOTUS memo appears to suggest that Congress may have delegated authority to Arizona’s legislative process, including by the initiative, even if the initiative is not comprehended to be within the meaning of “the Legislature” in Article I, Section 4.
This is not totally dissimilar to ‘Davis v Hildebrant’. Note that Part 2 says that the provision for the referendum in the Ohio constitution was consistent with the federal redistricting statute of 1911. Part 3 doesn’t say that what Ohio did was constitutional, but rather what Congress did was constitutional.
Richard Winger appears to be extrapolating from the Arizona case to Pennsylvania. There is a deadline in statute of the 2nd Friday after the primary (May 30, 2014). Since the SOS has set a deadline of August 1, there must have been court intervention. So the case is much closer to that of Ohio.
But state statute in Pennsylvania requires a court hearing an election protest case to do so within time for the SOS to place a candidate on the general election ballot; and sets additional time limits for the various hearing agencies to hold hearings, prior to an appeal to the courts. It may be within the power of the SOS to work backwards from that deadline – and even if a court did intervene, it is unlikely to set a date significantly later than August 1.
SOS Brunner was trying to implement much more extensive changes by executive fiat.
Demo Rep: I hardly think the 5 SCOTUS members you are referring to are “right wingers.” They may be “conservative” but not right wingers. There is a slight difference.