AIRC Update: AIRC files its response


Posted by AzBlueMeanie:

On Friday, the AIRC filed its Response to Platiff's Motion for Preliminary Injunction in Arizona State Legislature v. Arizona Independent Redistricitng Commission. This is the case in which our Tea-Publican legislators want to overturn Proposition 106 (2000), the citizens initiative creating the AIRC enacted by the voters of Arizona, asserting that the citizens of Arizona have no authority to deprive the state legislature of the "exclusive" power to redistrict.

The Response cites the controlling case precedents demonstrating why the case filed by our Tea-Publican legislators is without merit, and they are not entitled to any relief.

It is important to remember that during the Progressive Era, a number of states enacted the reforms of citizens initiative, referendum and recall. The state of Arizona was admitted to the Union in 1912 with a progressive state constitution which expressly provided for citizens initiative, referendum and recall, reserving to the people the power to propose laws and amendments to the Constitution.

The controlling case precedent is Ohio ex rel Davis v. Hidebrant, 241 US 565, 569 (1916):

By an amendment to the Constitution of Ohio, adopted September 3d, 1912,
the legislative power was expressly declared to be vested not only in
the senate and house of representatives of the state, constituting the
general assembly, but in the people, in whom a right was reserved by way
of referendum to approve or disapprove by popular vote any law enacted
by the general assembly. And by other constitutional provisions the
machinery to carry out the referendum was created.

* * *

In May, 1915, the general assembly of Ohio passed an act redistricting the state for the purpose of congressional elections, by which act twenty-two congressional districts were created, in some
respects differing from the previously established districts, and this
act, after approval by the governor, was filed in the office of the
secretary of state. The requisite number of electors under the
referendum provision having petitioned for a submission of the law to a
popular vote, such vote was taken and the law was disapproved.

[T]he suit before us was begun against state election officers for the
purpose of procuring a mandamus, directing them to disregard the vote of
the people on the referendum [and] disapproving the law . . . The right to this relief was based upon the charge that the referendum
vote was not and could not be a part of the legislative authority of the
state, and therefore could have no influence on the subject of the law
creating congressional districts for the purpose of representation in

The court reasoned that "we think it is apparent that the whole case and every real question in
it will be disposed of by looking at it from three points of view, the
state power, the power of Congress, and the operation of the provision
of the Constitution of the United States":

As to the state power, . . . it [is] clear that, so far as the state had the power to do it, the
referendum constituted a part of the state Constitution and laws, and
was contained within the legislative power; and therefore . . . [was] valid and operative is conclusively established to be wanting in merit.

So far as the subject may be influenced by the power of Congress,
that is, to the extent that the will of Congress has been expressed on
the subject, we think the case is equally without merit. We say this because we think it is clear that Congress, in 1911, in
enacting the controlling law concerning the duties of the states,
through their legislative authority, to deal with the subject of the
creation of congressional districts, expressly modified the phraseology
of the previous acts relating to that subject by inserting a clause
plainly intended to provide that where, by the state Constitution and
laws, the referendum was treated as part of the legislative power, the
power as thus constituted should be held and treated to be the state
legislative power for the purpose of creating congressional districts by
law . . . in the act of 1911 there was substituted a provision that the
redistricting should be made by a state 'in the manner provided by the
laws thereof.' And the legislative history of this last act leaves no
room for doubt that the prior words were stricken out and the new words
inserted for the express purpose, in so far as Congress had power to do it, of excluding the possibility of making the contention as to referendum which is now urged.

3. To the extent that the contention urges that to include the
referendum within state legislative power for the purpose of
apportionment is repugnant to 4 of article 1 of the Constitution and
hence void, even if sanctioned by Congress, because beyond the
constitutional authority of that body, and hence that it is the duty of
the judicial power so to declare, we again think the contention is
plainly without substance, for the following reasons: It must rest upon
the assumption that to include the referendum in the scope of the
legislative power is to introduce a virus which destroys that power,
which in effect annihilates representative government, and causes a
state where such condition exists to be not republican in form, in
violation of the guaranty of the Constitution. Const. 4, art. 4. But
the proposition and the argument disregard the settled rule that the
question of whether that guaranty of the Constitution has been
disregarded presents no justiciable controversy, but involves the
exercise by Congress of the authority vested in it by the Constitution.

* * *

It is apparent from these reasons that there must either be a dismissal
for want of jurisdiction, because there is no power to re- examine the
state questions foreclosed by the decision below, and because of the
want of merit in the Federal questions relied upon, or a judgment of
affirmance, it being absolutely indifferent, as to the result, which of
the two be applied.

In Smiley v. Holm – 285 US 355 (1932) the governor of Minnesota vetoed a redistricting plan of the state legislature.Disregarding the governor's veto, the redistricitng plan was filed with the Secretary of State.

This suit was brought by the petitioner as a
"citizen, elector and taxpayer" of the state to obtain a judgment
declaring invalid all fillings for nomination for the office of
representative in Congress[.]

The petition alleged that [the redistricting plan]
was a nullity in that, after the governor's veto, it was not repassed by
the legislature as required by law[.]

The court rejected the state's argument that "the power of the state legislature to
prescribe congressional districts rests exclusively and solely in the
language of article I, section 4, of the United States Constitution."

It clearly follows that there is nothing in Article I, § 4, which precludes a state from providing that legislative action in districting the state for congressional elections shall be subject to the veto power of the governor as in other cases of the exercise of the lawmaking power. Accordingly, in this instance, the [redistricting plan] cannot be sustained by virtue of any authority conferred by the Federal Constitution upon the Legislature of Minnesota to create congressional
districts independently of the participation of the governor as required
by the state constitution with respect to the enactment of laws.

In Brown v. Secretary of State of Florida, 668 F.3d 1271 (2012), the issue was whether a state constitutional provision establishing
standards for congressional redistricting that was approved by the
people by initiative is contrary to the Elections Clause of the United
States Constitution.

The appellants claim that Amendment Six is unconstitutional because it
was enacted by citizen initiative rather than by the state's legislature
in the ordinary "legislative process."

* * *

The appellants' basic argument boils down to this: Amendment Six
violates the Elections Clause because the amendment was not enacted
through the state's legislative process. Rather, the governing provision
was unlawfully enacted by citizen initiative (albeit pursuant to the
constitution of the state), and the codification process was therefore
not prescribed "by the Legislature thereof." In fact, they claim,
allowing the people to proceed in this way would effectively read the
"Legislature" out of the Elections Clause, denuding the legislature of
its textual authority. Thus, the key question we face is how to read the
phrase "by the Legislature thereof."

* * *

The Supreme Court, however, has provided a clear and unambiguous answer
to this question, twice explaining that the term "Legislature" in the
Elections Clause refers not just to a state's legislative body but more
broadly to the entire lawmaking process of the state. The Court had
occasion to construe the term "Legislature" in the Elections Clause in
two principal cases—Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916), and Smiley v. Holm, 285 U.S. 355,
52 S.Ct. 397, 76 L.Ed. 795 (1932). On one occasion, the Court held that
the people (through a referendum process) could use a state's
constitutionally provided veto power to reject the state legislature's
congressional redistricting plan, and, then on another, that the
governor could lawfully do so as well.

* * *

In the face of this precedent, we have little difficulty in rejecting
the appellants' claim that the phrase "by the Legislature thereof" in
the Elections Clause somehow refers only to a state's legislative body.
The Supreme Court has plainly instructed us that this phrase encompasses
the entire lawmaking
function of the state. That a law was enacted by the people themselves,
pursuant to state law, rather than by the state legislative body, is not
enough to invalidate that action under the Elections Clause. The focus
remains on the state's lawmaking process, whether the governor of the
state participates in the making of state laws by exercising his veto
power, or the people participate in the making of state laws through the
state's referendum process.

We are hard-pressed to understand how the term "Legislature" as used
in the Elections Clause could properly include within its ambit the
governor's and people's ability to flatly reject redistricting
legislation, but would not also include the people's lawfully prescribed
initiative power to provide some guidance for how the legislature may
exercise its discretion in drawing congressional districts. We can see
no material difference between the state veto provisions upheld in Hildebrant and Smiley
and Florida's Amendment Six, which was constitutionally enacted by
initiative according to Florida law. Again, the Elections Clause
"neither requires nor excludes such participation" in state lawmaking. Smiley,
285 U.S. at 368, 52 S.Ct. 397. And this check on the legislative
process "cannot be regarded as repugnant to the grant of legislative
authority," any more than the other limitations can be.

* * *

Quite simply, since the phrase "by the Legislature thereof" in the
Elections Clause refers to the state's entire lawmaking function, and
the power of the people to amend their state constitution by initiative
is an integral part of Florida's lawmaking power, Amendment Six does not
run afoul of the U.S. Constitution.

Tea-Publicans in our lawless legislature have brought a claim without merit that is unsupported at law. For all their sophistry and parsing of language to try to distinguish this case from controlling case precedents, they fail. Once again our lawless legislature is pissing away your taxpayer money on attorneys fees and court costs on litigation in pursuit of their attempt to deprive you of your constitutional rights to citizens initiative, referendum and recall. You have the opportunity to deliver a punishing rebuke to them in November 2014.

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AZ BlueMeanie
The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.


  1. For us legal & Constitutional geeks, the IRC’s response is fascinating reading with clear & cogent arguments. Here are my 2 favorite quotes from the IRC brief both of which deal the motives of the GOP dominated state Legislature in bringing the lawsuit:

    “Concerned more with a loss of power than the will of the people who elected its members,the Legislature now contends Proposition 106 [i.e., the voter approved Arizona Independent Redistricting Commission] is unconstitutional. . . .”

    “The Legislature cynically waited to see what political influence it could exert, letting the entire process conclude before bringing this claim and now rushes to court asking for an injunction of the redistricting plan.”

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