GOP war on voting heats up in the U.S. Supreme Court

“May you live in interesting times.” (an apocryphal curse)

On Thursday, the U.S. Supreme Court agreed to hear the appeal of the Tea-Publicans in the Arizona legislature that may settle the future of attempts by voters to take the redrawing of congressional districts out of the hands of legislatures and assign the task to independent redistricting commissions. Arizona State Legislature v. Arizona Independent Redistricting Commission.

This is an appeal the Court should deny based upon its own precedents. That it agreed to hear this appeal portends that the “Felonious Five” are prepared once again to disregard the court’s precedents as they have done in Citizens United, McCutcheon, and Shelby County. The optimistic view is that a majority of the court could still reject this appeal on the grounds of lack of standing.

Lyle Denniston reports at SCOTUSblog, Fate of non-partisan redistricting on the line:

If the Court does reach the core issues in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission, and it gave itself a couple of options not to do so, it could make a major difference in the degree to which future membership in the House of Representatives is politically polarized.  In recent years, state legislatures dominated by one or the other major political party have carved up districts in ways to help their party’s candidates.

In its new appeal, the Arizona legislature urged the Court to rule that the Constitution’s Elections Clause prohibits a state from cutting its legislature mostly, or totally, out of the process of drafting new election districts for its House members, after each new federal Census.

From the time Arizona became a state in 1912, until 2000, its legislature had the authority under the state constitution to draw the lines of congressional districts, subject to possible veto by the governor.  However, in 2000, the voters of the state-approved “Proposition 106,” an amendment to the state constitution assigning that task to an independent, five-member body — four chosen by legislative leaders but only from a list handed to it by another state agency, and a fifth member to act as chairman when chosen from that same list by the other four members.

In 2012, after the commission carried out its duty following the 2010 Census, the state legislature sued, claiming that this took away its power that, it argued, was given to it by the federal Constitution’s Elections Clause.

In taking on the case and planning to hold a hearing on it after full briefing, the Court said that it could rule on two issues on the merits:  does the Elections Clause allow the task to be shifted away from the legislature; and, alternatively, is that forbidden by a federal law that assigns the redistricting task “in the manner provided” by state law?

But the Court, in the end, may not answer either of those questions.  It also told lawyers to argue whether the state legislature had a legal right even to file its lawsuit — a technical question about “legislative standing.”  If a party that sues does not have “standing,” then the Constitution’s Article III will not allow a federal court to rule on that case.

And, because the case reached the Court in the form of a formal appeal, the kind over which the Court has little or no discretion to bypass, there is a separate question of whether the Court did actually have to take on the case (that is, does it have formal jurisdiction).

In deciding that issue, the Court may consider not only the “standing” issue but also claims by the supporters of the independent approach that the dispute is a “political question” not open at all to decision in the federal courts.

In preparing their briefs and in the coming oral argument, lawyers will have to deal with all of the questions the Court posed.

The Court has not yet assigned that case, or the other ten newly granted review, for oral argument.  It still has four slots open in its January hearing schedule, so some are likely to be put in those slots, and the others could go into the February calendar, or later.

Rick Hasen at Election Law Blog fears the worst. Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis:

[T]oday’s Supreme Court grants to hear two new election cases fit into the category of petitions to move the law in more conservative directions. In the Arizona State Legislature case, the Court has the potential to prevent the increasing use of citizen commissions to decide congressional redistricting, taking the issue out of the hands of self-interested legislatures. Here is how the Court phrased the issue in the Arizona redistricting case:

13-1314 AZ STATE LEGISLATURE V. AZ INDEP. REDISTRICTING, ET AL.
Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits limited to the following questions: 1) 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? 2) Does the Arizona Legislature have standing to bring this suit?

 I had expected the Court not to take this case but to summarily affirm.  The key question is whether the state “Legislature’s” power under the elections clause to set the manner for congressional elections includes the power for state voters to set those rules by initiative.

It seems to me the matter is pretty settled that the answer is yes (for reasons given in my Hastings Constitutional Law Quarterly article: When ‘Legislature’ May Mean More than ‘Legislature’: Initiated Electoral College Reform and the Ghost of Bush v. Gore).  But maybe the issue is to be reopened? Perhaps some Justices are interested in a more textualist reading of “Legislature,” even if it is at odds with earlier precedent.  Will Baude suggests that the Arizona case may be distinguishable from earlier precedent in that in those other cases the state legislature retained some role in the process.

Regardless of the arcane nature of the legal issue, it would be a big deal to take away the potential for citizen redistricting reform as to congressional elections.

The Florida judicial speech case concerns the ability of states (or state supreme courts) to limit some of the campaign activities of judicial candidates—in this case, the personal solicitation of campaign contributions by judicial candidates. (Adam Liptak previewed the Williams-Yulee judicial elections case in this recent column.)  . . . The theory is, if you are going to have judicial elections, especially with outside groups weighing in thanks to Citizens United, you cannot stop what judicial candidates say or do.

The question is whether it might be possible to convince a Justice or two (thinking here mainly of the Chief Justice or Justice Kennedy) that judicial elections could be subject to special rules because of the key importance of the impartiality and dignity of the judiciary.

Also in the process of briefing is another redistricting case from Arizona, Harris v. Arizona Independent Redistricting Commission (Docket No. 14-232), which has a deadline to complete briefing by October 29.  It is likely that the Court will schedule the Arizona cases together for oral argument should the Court also agree to hear Harris.

The Court already has on its docket two redistricting cases from the state of Alabama, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, challenging the state’s redistricting plan on the grounds of racial gerrymandering.

There is also the 10th Circuit Court of Appeals decision still pending in Kobach v. U.S. Election Assistance Commission, to which Arizona is a party, which is certain to be immediately appealed to the Supreme Court.

There is already a petition pending from the state of Ohio regarding its restrictive voting legislation, with appeals from Wisconsin, North Carolina, and possibly Texas on the way to the Court.

Late today, Wisconsin and North Carolina filed their petitions to the Court. Lyle Denniston reports at SCOTUSblog, Voter ID law in Wisconsin challenged (UPDATED) :

UPDATE 4:21 p.m.   Justice Elena Kagan has called for a response from the state of Wisconsin to this application.  It is due by 5 p.m. next Tuesday.

FURTHER UPDATE 4:51 p.m.  Meanwhile, state officials in North Carolina asked the Court to reinstate two voting measures that it had dropped but that were reinstated by the U.S. Court of Appeals for the Fourth Circuit — same-day registration and voting, and counting of ballots that voters had cast in the wrong precinct polling place.  That application (North Carolina v. League of Women Voters of North Carolina, docket 14A358) was filed with Chief Justice John G. Roberts, Jr., as Circuit Justice.   The Chief Justice has called for a response by 5 p.m. this Sunday.

The voter ID case from the federal district court in Corpus Christi, Texas, the trial of which ended Monday of last week, is in the hands of the Judge to decide. Any decision the judge renders will be immediately appealed to the 5th Circuit Court of Appeals and/or the U.S. Supreme Court.

It appears the Court’s new term beginning on Monday will be dominated by election law challenges, not the same-sex marriage appeals everyone anticipated.