Forecasting the Court’s opinion in the Arizona redistricting case

It’s a rare day when the media arm of the Arizona Republican Party, The Arizona Republic(an), Our View: Lawmakers vs. the people – who wins? (Our View: The people have spoken. They don’t trust lawmakers to draw election maps. But will the Supreme Court listen?), and the “librul” New York Times, Will the Supreme Court Say No to Gerrymandering? (Americans need to have more direct control over the integrity of the electoral process), can agree with one another: Republicans in the Arizona legislature determining congressional district boundaries is a bad thing.

Unfortunately, both editorial boards are going to be disappointed by what the U.S. Supreme Court appears most likely to do in Arizona State Legislature v. Arizona Independent Redistricting Commission.

I have read most of the national news media reporting on the oral argument yesterday, and the vast majority of reporting is in the vein of this AP headline: Justices Seem Skeptical of Independent map Drawers.

Election law attorney Rick Hasen has his Analysis: Supreme Court Looks to Endanger Citizen Redistricting Commissions and MORE:

I have now had a chance to review the transcript 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 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 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 mail; 1962, Arkansas, use of voting machines. All of things, these things were done by referendum or by initiative with the legislative process completely cut out. So would all of those be unconstitutional as well? And we can go further. I mean, 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.

I believe the Justices have in mind a more narrow reading of the Elections Clause of the U.S. Constitution, Article, I, Section 4: “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, except as to the places of choosing Senators.”

The heart of the lawsuit is the Arizona legislature’s complaint that, by depriving it of any substantive role in the redistricting process, the state’s creation of the Arizona Independent Redistricting Commission (AIRC) violates the U.S. Constitution with respect to federal offices.

This case does not involve the AIRC redistricting of state legislative districts under the Arizona Constitution, a separate appeal before the Court, Wesley W. Harris, et al. v. Arizona Independent Redistricting Commission, et al., which was distributed for conference on January 9, but the Court has yet to enter any order granting or dismissing this appeal.

There is an analogous precedent that everyone seems to have overlooked. In 1992, Arizona voters overwhelmingly approved an initiative for term limits, Prop. 107. Term limits for federal offices was challenged in a case from Arkansas, and the U.S. Supreme Court in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ruled that states cannot impose qualifications for prospective members of the U.S. Congress stricter than those specified in the Constitution. The decision invalidated the Congressional term limit provisions of 23 states, including Arizona. But the ruling left undisturbed term limits for state elected officers under state constitutions.

The same result is most probable to occur here. The “originalists” and “strict constructionists” among the conservative Justices are likely to rule that, with respect to federal offices, the Elections Clause of the U.S. Constitution gives to state legislatures the power to redistrict congressional districts. The Court will not dictate the method that state legislatures must use, because this is a function left to the states under federalism.

The Arizona legislature will have the power to redistrict congressional districts. It can use the AIRC in some manner. if it so chooses, or not. That would largely depend on public pressure brought to bear on the new law to be enacted for congressional redistricting in the wake of the Court’s opinion in this case.

This in no way affects the constitutionality of the AIRC redistricting of state legislative districts under the Arizona Constitution. There is no constitutional conflict here where the power of the people to legislate by initiative and referendum is expressly reserved to the citizens of Arizona in the Arizona Constitution.

In fact, Paul Clement, the attorney for the Arizona legislature, conceded this point early on in his oral argument to Justice Ginsburg:

Mr. Clement: The Elections Clause of the Constitution clearly vests that authority not just in the States, but in the legislatures thereof. Thus, this avowed effort to redelegate that authority to an unelected and unaccountable commission is plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states.

Justice Ginsburg: But it’s all right for the state redistricting. The commission is — is — there’s no constitutional question with the — Arizona being able to use this commission for its State representation.

Mr. Clement: Absolutely, justice Ginsburg. It only applies to the — our argument only applies to the congressional redistricting. And, of course, that means that if these commissions are as effective as my friends on the other side say, then we will have nonpartisan districts that swill elect the State house — the  State houses, the State representatives and the State senate, and then those nonpartisanly gerrymandered, perfectly represented bodies will be the ones to take care of congressional redistricting.

If you noted a hint of dripping sarcasm in Mr. Clement’s statement, you are correct.

The concern expressed by Justice Kagan and by Rick Hasen, above, that this decision could affect “zillions” of election laws enacted by citizen initiatives and referendums may be a bit overstated with a narrow ruling limited to an express provision in the U.S. Constitution affecting federal office holders.

The states do, in fact, have the power to prescribe “the time, place and manner of elections,” which includes everything from qualifications for voter registration,  to the type of primaries, to early voting, to the locations and manner of voting, to the form of the ballot, to how the vote is to be tabulated and certified, etc. None of this impinges upon an express provision in the U.S. Constitution, because elections were left to the states under federalism.

These concerns would only become an issue should Congress decide to exercise its prerogative under the second part of the Elections Clause: “but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”

This is my best forecast of the Court’s opinion in this case. I reserve the right to be wrong.