On November 8, 2013, a federal lawsuit was filed against Oregon’s ban on paying petitioners on the basis of how many signatures they collect. Buehler v Brown, 3:13cv-1990.

An earlier lawsuit against that ban failed to achieve any change in the law. That case was Prete v Bradbury, 438 F 3d 949 (2006). However, in that case, the Ninth Circuit wrote, “To be clear, we do not hold that Measure 26 is facially constitutional. Rather, we hold that because the district court did not clearly err in determining plaintiffs failed to establish that Measure 26 significantly diminishes the pool of potential petition circulators, increases the cost of signature gathering, or increases the invalidity rate of signatures gathered, we cannot conclude that Measure 26 imposes a ‘severe burden’ under the First Amendment.”

Plaintiffs in the new lawsuit expect to submit evidence that the restriction does impose a severe burden, and thus their case is not foreclosed by the 2006 opinion.

On February 21, a 3-judge U.S. District Court ruled in Arizona State Legislature v Arizona Independent Redistricting Commission, cv-12-1211, that the U.S. Constitution does not prevent states from setting up independent redistricting commissions to draw boundaries for U.S. House districts. Judge G. Murray Snow, a Bush Jr. appointee, wrote the decision, which was co-signed by Judge Mary M. Schroeder, a Carter appointee. Judge Paul Rosenblatt, a Reagan appointee, dissented.

Arizona has been using an Independent Redistricting Commission since the 2000 census. Article One, Section 4 of the U.S. Constitution says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The question in this case is whether the Constitution’s reference to “legislature” means that only the state legislature can draw the boundaries.

Both the majority opinion and the dissent agree that the Arizona Redistricting Commission exercises legislative power. The dissent says that the federal Constitution’s language means that the legislature itself must have a substantial role in drawing the districts; but the majority says that because the Commission is part of Arizona’s legislative process, the Commission falls within the meaning of “legislature.”

The U.S. Supreme Court ruled in 1916 that the U.S. Constitution was not violated when Ohio let its voters use the referendum process to repeal the Ohio legislature’s redistricting plan. The U.S. Supreme Court also ruled in 1932 that the U.S. Constitution was not violated when Minnesota’s Governor vetoed the 1931 redistricting plan passed by the legislature. The majority rests its decision on those two cases. The dissent says that those two cases do not control the Arizona decision, because in both Ohio and Minnesota, the legislatures still had the authority to draw the lines, or to re-draw them after either the voters or the Governor had thwarted the legislature’s first attempt.

It is somewhat likely that the Arizona legislature will appeal this decision to the U.S. Supreme Court. Because the matter comes from a 3-judge court, the U.S. Supreme Court must either summarily affirm the decision, or accept it for review. Thanks to Rick Hasen for this news. Here is a news story that has a link to the decision. The majority decision is 14 pages and the dissent is 3 pages.

HR 20, the bill for public funding for candidates for U.S. House, now has 133 sponsors, but Walter B. Jones of North Carolina continues to be the only Republican sponsor.