Update on pending election cases

Time to catch up on some pending election cases.

Redistricting

Howard Fischer reports that the Arizona Independent Redistricting Commission has filed its response to the Arizona Legislature’s appeal to the U.S. Supreme Court from the dismissal of its case by the U.S. District Court for Arizona. Arizona IRC attorney defends legislative redistricting by citizen commission.

As always, Steve Muratore from the Arizona Eagletarian (and Blog for Arizona) does a far better job of reporting the facts. In late April, Redistricting — Legislature files brief in US Supreme Court:

Soon after learning of the district court ruling against them, the legislature filed a notice of appeal. Today, counsel for the lawmakers filed an Arizona Jurisdictional Statement with the Supreme Court of the United States. That document represents the legislature’s briefing of its appeal.

The 121 page PDF is mostly appendices, providing background on the case.

The AIRC has now filed its response brief. AIRC to SCOTUS: Dismiss legislature’s appeal:

On Monday, June 30, the Arizona Independent Redistricting Commission filed a motion to dismiss or affirm with the Supreme Court of the United States in the Arizona Legislature v AIRC case. The legislature had previously appealed the ruling of the three-judge panel that had dismissed the lawsuit that had attempted to invalidate the vote of the People of Arizona to enact independent redistricting.

As in many other states, the Arizona Legislature shares legislative power with the people, who since statehood have had the power to pass laws or amend the state constitution through ballot measures. Ariz. Const. art. IV, pt. 1, § 1(1). In 2000, Arizonans used that power to create a new constitutional body, the Independent Redistricting Commission, whose purpose is to “provide for the redistricting of congressional and state legislative districts.” Ariz. Const. art. IV, pt. 2, § 1(3)-(23) (“Prop 106”). Until then, the Legislature had controlled redistricting legislation, subject to the governor’s veto and the people’s power of referendum and initiative.

Apparently dissatisfied with the Commission’s congressional redistricting plan adopted in 2012, the Legislature brought this case on the theory that the voter-created Commission violates Article I’s Elections Clause because it “divests the Legislature of its authority” over redistricting legislation. (See Appellant’s Jurisdictional Statement (“JS”) at 33.) See U.S. Const. art. I, § 4.

This Court should dismiss this appeal for lack of a substantial federal question or summarily affirm the district court’s dismissal of the Legislature’s claim. The three-judge panel’s order is a straightforward application of this Court’s long-standing precedent. In two cases, this Court has already rejected the argument that the Elections Clause grants a state legislature some special institutional control over redistricting legislation. Smiley v. Holm, 285 U.S. 355 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916).

The Elections Clause gives states the authority to regulate federal elections by enacting legislation in the manner “in which the Constitution of the state has provided that laws shall be enacted.” Smiley, 285 U.S. at 368. In Arizona, the state constitution “has provided that” redistricting legislation “shall be enacted” through the Commission. Like the voter referendum in Hildebrant and the gubernatorial veto in Smiley, the existence of the Commission “is a matter of state polity” that does not violate the Elections Clause. Smiley, 285 U.S. at 368. The Court need not take plenary review merely to consider another factual permutation of an issue it resolved long ago.

In the alternative, although the district court decided the merits, this Court should vacate the district court’s judgment and remand with instructions to dismiss for lack of subject matter jurisdiction. The case presents a non-justiciable political question because the Constitution dedicates this question to Congress, which has power to “make or alter” state regulations. And Congress decided a century ago that redistricting should be done pursuant to state law. See 2 U.S.C. § 2a(c).

The 39-page AIRC motion concludes:

The appeal should be dismissed for want of a substantial federal question. In the alternative, the judgment should be summarily affirmed or vacated with instructions to dismiss for lack of subject matter jurisdiction.

The District Court and the AIRC are correct. However, given the degree of partisanship of the conservative activist Justices of the U.S. Supreme Court, nothing is certain. The Court has already granted two redistricting cases, Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama, that the Court will hear next Term. Lisa Soronen at the blog of the National Conference of State Legislatures has a review of those cases. (h/t SCOTUSblog.com). I will follow the Court’s list of cases for conferences and orders for this case.

The Sierra Vista Herald today has an editorial opinion taking the Arizona Legislature to task for pissing away your tax dollars on this frivolous litigation. Our View: Suing for politics.

Prop. 200 Proof-of-Citizenship Voter Registration

Kansas Secretary of State Kris Kobach, coauthor of Prop. 200 and SB 1070, writes in his June 2014 Newsletter, Canvassing Kansas – Kansas Secretary of State (.pdf) that the 10th Circuit Court of Appeals will hear oral arguments in Kobach v. U.S. Election Assistance Commission on August 25, 2014:

Kris W. Kobach, Kansas Secretary of State;and Ken Bennett, Arizona Secretary of State; v. United States Election Assistance Commission. After the U.S. District Court in Wichita ruled in the plaintiffs’ favor on March 19, 2014, the defendants filed for a stay and appealed to the 10th Circuit. The district court denied the motion, but the 10th Circuit Court of Appeals has issued a stay of the District Court’s order that will remain in effect until the appeal is concluded. The Court of Appeals will hear oral arguments on August 25, after the primary election. The Secretary of State’s office is hopeful that a decision will be issued by the Court of Appeals before Kansas’s general election in November.

In a related legal matter, the ACLU has moved for a preliminary injunction to stop Kansas’ proposed two-tier voting system in Belenky v. Kobach:

The U.S. Supreme Court ruled in June 2013 that states could not impose a documentary proof-of-citizenship requirement for those who register to vote using the federal form. Voters declare under penalty of perjury that they are citizens when they register using the federal form.

Kansas [and Arizona] has implemented a dual registration system to prevent people who use the federal form from voting in state and local elections unless they show additional documentary proof of citizenship. Voter registration for thousands of Kansans is already being held in “suspense” – essentially limbo – because of the new documentation requirements. Under the two-tiered system, people who complied with all legal requirements for voter registration are denied the right to vote in state and local elections because of the registration form they used.

The ACLU complaint charges that state officials have, without statutory authority, “unilaterally established an unprecedented and unlawful voter registration system that divides registered voters in Kansas into two separate and unequal classes, with vastly different rights and privileges…based on nothing more than the method of registration that a voter uses.”

The lawsuit was filed in the Third Judicial Circuit in Topeka on behalf of Equality Kansas and individual voters. The complaint charges the dual system not only deprives Kansans of voting in state and local elections, but also denies them election-related rights such as signing petitions.

On June 27, 2014, the ACLU and ACLU of Kansas asked the court for a preliminary injunction to stop these changes from going into effect before Kansas’ August 5, 2014 primary election.

Read the Motion (.pdf) and supporting Memorandum (.pdf).

I am not aware that the Arizona ACLU has found a suitable plaintiff to file a similar court action here in Arizona to stop Secretary of State Ken “Birther” Bennett’s planned two-tier voting system in Arizona. The Arizona political media seem to be largely ignoring this voting rights issue.