Per SCOTUS, initiative created redistricting commissions may be l'histoire

[jimrtex]

Here's an overview of the states/laws that would be impacted.

"The Sky is Falling" (not directed at Miles, but the Brennan Center)

Most of the laws are general in nature and apply to all elections.  If a state constitution permits use of voting machines, then even if a wobbly court decided that the use of voting machines for federal elections was not constitutional, the legislature would simply pass a law permitting use (or they probably already have enacted all kinds of legislation with regard to voting machines).

[jimrtex]

Yeah, I'm not even sure why the AZGOP did this in the first place. Are they that pissed off at Colleen Mathis that they'd be willing to throw the entire party under the bus?

Isn't it the case though, that IA-style commissions may still be constitutional, considering that they've still got some legislative input?

Iowa is a legislature created commission (as opposed to initiative created by the voters without legislative input), as to which the Legislature has some input in any case. It's Constitutionally safe. Ditto for all Court drawn maps, ala NY and MN.

It is the legislature's service arm that prepares the plans.  The legislature must approve the plan (they have rejected a plan in the past).  And they are operating under state statute pass by the legislature.

New York's new commission is more interesting, since it requires legislative approval of the plan (2/3 majority), and permits the legislature to replace a map.  So it in a sense it does not bypass the legislature, but does change the procedure by which certain legislation is enacted.

The purpose of a a State Constitution is to dictate how the government is constituted, particularly the Legislature.  It is essential that the constitution dictate the legislative process.

The next tier would be Florida's law, where the legislature still draws the map, but the Constitution dictates the standards that law must comply with.

[jimrtex]

What is the constitutional rationale behind this? It seems utterly nonsensical to me.

The text of the Constitution, that specifically states that it is the state legislatures that draw the lines, rather than merely referring to the states as having that power.

I assume you refer to Article 1, 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 chusing Senators."

First of all, one could make the argument that, in States where popular initiatives are recognized, the people itself constitutes one branch of the "legislature". Since the US Constitution contains no precise definition of the term, the legislature has to mean "those who hold legislative power". If the State Constitution recognizes a right for the people to legislate directly through initiatives or referendums, then the people voting for these initiatives are functionally equivalent to elected representatives voting on a bill.

If the power to alter electoral regulation is vested in the holders of legislative power in a given State, then it follows that citizens have the same right as their representatives to enact electoral regulations. Secondly, the exercise of the power must always come with the possibility to delegate such power to a different body. If the people, in their quality of legislators, resolve to grant their redistricting power to a nonpartisan commission, they are merely exercising their Constitutional right to its full extent.

Is "Legislature" used elsewhere in the US Constitution?   How does that conform to your understanding?

SCOTUSBLOG analysis

Transcript of Oral Arguments

[Antonio the Sixth]

I have always believed that, when two reasonable interpretations of constitutional provisions exist, the Courts should err on the side of judicial restraint. Otherwise, the judicial power oversteps its boundaries and becomes essentially omnipotent. Of course, this has already happened countless times both in history and in recent times.

[jimrtex]

There is a simple fix available to states with independent commissions. Follow IA's lead and send plans to the legislature for an up or down vote. In IA the bureau that drafts the bills is given the task of drawing the legislative and congressional maps following statutory criteria. The bureau sends the plans to the legislature for an up or down vote without amendment. If the plan fails it goes back to bureau for another try, perhaps guided by comments the legislature is permitted to send with their rejection. The process is repeated up to three times. If the third plan is rejected, then the matter goes to the courts.

In commission states, just replace the bill drafting bureau with the commission, but otherwise follow that procedure. The legislature stays in the process with the final say on the map.

But in Iowa, didn't the legislature create the structure in the first instance? I am not sure an initiative based law not passed by the legislature, that just has the legislature involved at the end with a mere veto power to send it to the courts, will pass muster, assuming SCOTUS strikes down the AZ structure.

I think that will be a question many will be looking at the opinion to determine. There are lots of initiative-based election laws in states that could be impacted based on the questions from the liberal justices. If the ruling stays narrow to the act of redistricting and overturns AZ, will it be because it was by initiative or because it was a plan without legislative approval. The legislature need not be the sole approver of the plan since most states require the Gov's signature on the redistricting bill. It seems to me that initiatives may still be able to dictate the manner in which the legislature performs its redistricting function, even if they can't strip that function entirely.

The claim is made that voter-approved measures such as this one from Illinois would be in jeopardy.

"No person shall be denied the right to register to vote or to cast a ballot in an election based on race, color, ethnicity, status as a member of a language minority, national origin, religion, sex, sexual orientation, or income."

Is someone going to challenge this because it was too broadly drawn and includes federal elections?

Is it even a manner regulation, or is it a voter qualification regulation?  If a person is qualified to be a voter, what are they qualified to do?  The answer is "cast a ballot".  And if Illinois requires registration as a prerequisite to casting a ballot, isn't that simply an extension of how a person qualifies to vote?

But States have exclusive jurisdiction to regulate the franchise, subject to limitations in the US Constitution.

[morgieb]

Does this have a real chance of getting struck down?

[Torie]

Does this have a real chance of getting struck down?

About 2 to 1 odds is my guess. The only hope for the Commission is that Kennedy, after pounding them in oral argument, might reflect and think better of it all. But then Kennedy was a militant when it came to killing off Obamacare. His moderate reputation is waning. Breyer said nothing by the way in oral argument. That is not a good sign either. He's not afraid of talking if he thinks there is a point to be made that serves the cause of his wing of the Court.

[jimrtex]

I have always believed that, when two reasonable interpretations of constitutional provisions exist, the Courts should err on the side of judicial restraint. Otherwise, the judicial power oversteps its boundaries and becomes essentially omnipotent. Of course, this has already happened countless times both in history and in recent times.

What would be a reasonable interpretation of the following?

"Removes redistricting authority from the Arizona Legislature"

 

[Filuwaúrdjan]

Beyond parody.

If you characterize all of this that way, I wonder then how you would characterize this? What words are left to describe it? 

Insane? Its a good old word, seems to fit.

[Sbane]

Read all about it here.

If so, the Pubs get to gerrymander AZ, and bye bye two Dem seats. However, if so inclined, the Dems in CA can retaliate. Sure, they can shore up all the marginal Dem seats, but how many more can they get that seem realistic, without discommoding incumbents, or violating the VRA? I can see Denholm going, and maybe one NorCal seat, and maybe the Antelope Valley seat (tougher that one), but I am not sure how much more is practically possible (that marginal seat around Bakersfield, is already surrounded by very Pub areas, and subject to the VRA), and I suspect Jerry Brown may say just say chill. The current map is already something of a Dem gerrymander, and the Dems have held most of the marginal seats already. The Pubs just struck out in the last election.

I am not sure any other states have independent commissions, in which the legislature had no hand, so those will all survive. Well other than Florida, come to think of it. Probably not too much potential for Pub gains there either.

So this Board may become more active! 

Fajita strips from Orange County to Los Angeles is always an option. A sane gerrymander would pretty much max out where you indicate. As you mention, shoring up the multiple democrats who barely won in 2014 would be the highest priority.

[jimrtex]

Does this have a real chance of getting struck down?

About 2 to 1 odds is my guess. The only hope for the Commission is that Kennedy, after pounding them in oral argument, might reflect and think better of it all. But then Kennedy was a militant when it came to killing off Obamacare. His moderate reputation is waning. Breyer said nothing by the way in oral argument. That is not a good sign either. He's not afraid of talking if he thinks there is a point to be made that serves the cause of his wing of the Court.

Breyer did question the attorney for the Commission, Seth Waxman.  Breyer told him that he didn't think that his arguments were helping his case, but that he was free to continue arguing that way.

[Sbane]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

[Sbane]

Can the Supreme Court rule in such a way so that this only applies to AZ and not CA?

[windjammer]

Can the Supreme Court rule in such a way so that this only applies to AZ and not CA?

I don't think so.
The other situation would be possible I guess?

The AZ independent commission has 4 state legislators members, while the CA independent commission: 0.

[jimrtex]

Can the Supreme Court rule in such a way so that this only applies to AZ and not CA?

I don't think so.
The other situation would be possible I guess?

The AZ independent commission has 4 state legislators members, while the CA independent commission: 0.

This is not true.

[Torie]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

[ag]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

Exactly. And fajita strips there will be all over. I also can easily see quite a few other places where no fajitas are necessary. I mean, Matsui is sitting on 70% of the vote in Sacramento - she has many more votes than necessary to shore up Bera forever. Thompson is hoarding the Wine Country. There is a lot of fruit hanging around there, that should be picked.

Reserving 10 seats for the Republicans with the rest being reliably Dem would not seem very hard. It would be interesting, if that could be brought down to, say, 7, without undue danger of actually creating competition. I wish DRA were not so slow with California - would take me forever to draw it, and it would, probably, crash midway anyway. Could somebody with a better computer try?

[ag]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

There are so many things that could be done. Think very ugly. For instance, 1 and 4 could be merged, the rest cut into pieces and attached to coastal areas. I mean, by shifting 3 a bit south, you could both strengthen it and bring up 5 - tonnes of spare Dems there and in 2.  Meanwhile, Matsui´s district could be used to strengthen Bera - no problem there. So, choose between La Malfa and McClintock, if you like. Denham, of course, would go fast, and getting rid of Valadao will not be difficult either. Knight should be doable, no? So, 4 should work easily. The question is, can one do 7 or 8?

[ag]

BTW, the one I would REALLY like to get rid of is Rohrabacher. Is there a good way of doing that?

[Filuwaúrdjan]

The Kremlin stooge?



I guess you could move minority areas from inland Orange County (or if we're heading into crazytown from points west?) in and remove some safer R bits to a designated vote sink, but I don't know enough about the area to be sure of the practicalities. He lives at the midpoint of the district, roughly.

[Torie]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

There are so many things that could be done. Think very ugly. For instance, 1 and 4 could be merged, the rest cut into pieces and attached to coastal areas. I mean, by shifting 3 a bit south, you could both strengthen it and bring up 5 - tonnes of spare Dems there and in 2.  Meanwhile, Matsui´s district could be used to strengthen Bera - no problem there. So, choose between La Malfa and McClintock, if you like. Denham, of course, would go fast, and getting rid of Valadao will not be difficult either. Knight should be doable, no? So, 4 should work easily. The question is, can one do 7 or 8?

You boys keeping the VRA in mind?  Where are the Dem areas around the Valadao CD? The Matsui CD will need to be used to help ax Denholm, and buttress Bera. And in in order to cut down the the two Pub CD's east and north of Sacto, the map would need to get really ugly I suspect. I don't think it will happen. The Central Coast is not that Dem, and Monterey County is VRA territory. And the Dem incumbents won't stand for it to boot. I suspect 2 Pub seats is the realistic number (some Dem psephological guru quoted at RRH agrees with me). Most of the surplus Dems will be used to buttress Dem marginal seats, and even that will require a lot of subunit chopping, that in and of itself is controversial. The City of Sacto for example will need to be chopped. Time for some maps! 

[ag]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

There are so many things that could be done. Think very ugly. For instance, 1 and 4 could be merged, the rest cut into pieces and attached to coastal areas. I mean, by shifting 3 a bit south, you could both strengthen it and bring up 5 - tonnes of spare Dems there and in 2.  Meanwhile, Matsui´s district could be used to strengthen Bera - no problem there. So, choose between La Malfa and McClintock, if you like. Denham, of course, would go fast, and getting rid of Valadao will not be difficult either. Knight should be doable, no? So, 4 should work easily. The question is, can one do 7 or 8?

You boys keeping the VRA in mind?  Where are the Dem areas around the Valadao CD? The Matsui CD will need to be used to help ax Denholm, and buttress Bera. And in in order to cut down the the two Pub CD's east and north of Sacto, the map would need to get really ugly I suspect. I don't think it will happen. The Central Coast is not that Dem, and Monterey County is VRA territory. And the Dem incumbents won't stand for it to boot. I suspect 2 Pub seats is the realistic number (some Dem psephological guru quoted at RRH agrees with me). Most of the surplus Dems will be used to buttress Dem marginal seats, and even that will require a lot of subunit chopping, that in and of itself is controversial. The City of Sacto for example will need to be chopped. Time for some maps!  

My point is, if this happens, thene demonstartive chopping might, actually, be seen as politically desirable - at least for a while. Sure, Sacramento would be chopped. Hell, they might want to chop San Francisco into a spagghetti salad: just to make a very ugly point.

BTW, what would, exactly, be the VRA restrictions here? How many Hispanic-majority districts are needed (and, surely, they do not need supermajorities). This is the list of majority-minority districts now.

6th (Matsui) 38.9% white plurality
9th (McNerney) 37.2% bare Hispanic plurality, do not believe would be proteced
10th (Denham) 46.4% white 40.1%  Hispanic - the beauty, could, probably, be made into majority Hispanic, while making it Dem.
11th (DeSaulnier) 48.6% white plurality
12th (Pelosi), 44% white plurality, 33.4% Asian
13th (Lee) 34.2% white, 22.8% Asian
14th (Speier) 36.9% white, 33.5% Asian
15th (Swalwell)  37.5% white, 30.1% Asian
16th (Costa) 58% Hispanic - ok, protected
17th (Honda) 49.7% Asian - ok, I guess, this could be defended through VRA as well, and not much margin there.
19th (Lofgren) 41.4% Hispanic, the rest split between White and Asian pretty evenly - would one need to retain this? probably not
20th (Farr) 50.7% Hispanic - ok, off limits.
21st (Valadao) 71% Hispanic - funnily, this will be one of the districts that will be gerrymandered away from the Reps, but it would, surely, work as a VRA district, besides other possibilities
22nd (Nunes) 44.8% Hispanic - is this protected? otherwise could be used as a source of Hispanics to shore up the numbers elsewhere.
25th (Knight) 45.8% white, 35.3% Hispanic - adding more Hispanics here to make it a Hispanic district in the process of gerrymandering the incumbent out? Or just split it in some funny way?
26th (Brownley) 46.1% white, 43.2% Hispanic - quite a few Hispanics can be used to shore up whatever is necessary.
27th (Chu) 37% Asian, 29.2% white, 26.9% Hispanic - not protected, is it?
29th (Cardenas) 68.7% Hispanic - excess Hispanics, could be used.
31st (Aguilar) 49.4% Hispanic, and, in any case, will likely be made majority Hispanic, while shoring it up.
32nd (Napolitano) 62.6% Hispanic - Hispanics to spare.
34th (Becerra) 65.4% Hispanic - Hispanics to spare
35th (Torres) 69.4% Hispanic - Hispanics to spare
36th (Ruiz) 46.6% Hispanic and should be made majority Hispanic while shoring it up.
37th (Bass) 38.6% Hispanic, 24.6% black - not really protected, is it?
38th (Sanchez), 61.2% Hispanic - folks to spare, though, perhaps, shouldn´t be.
39th (Royce) 34.1% white, 32.6% Hispanic, the rest Asian
40th (Roybard-Allard) 86.5% Hispanic - do not tell me you cannot share this bounty for fear of VRA.
41st (Takano) 55.9% Hispanic - ok, yeah, this one should be left alone.
42nd (Calvert) 46.6% White, 36.2% Hispanics - get them out of there.
43rd (Waters) 46% Hispanic - ok.
44th (Hahn) 68.4% Hispanic - quite some space.
46h (Sanchez) 66.6% Hispanic, same
47th (Lowenthal), tied white/hispanic at 34.1%
51st (Vargas) 68.5% Hispanic - space to play
53rd (Davis) 43.1% white, 31.8% hispanic, no particular protection

Notice, that in at least couple of cases majority Hispanic districts could be created while hurting the Republicans. And most of the rest are fairly safely majority-Hispanic (and likely will be even more so post 2020).

[Sbane]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

Ed Royce's district. Give him Pomona.

[ag]

On second look, restricting Republicans to just 10 seats in California won't be so hard to do. And even Jerry Brown won't stop the greedy democrats in the legislature if the SCOTUS delivers such a decision on party line.

What's the fourth seat?

Ed Royce's district. Give him Pomona.

Actually, you are right.

[Sbane]

BTW, the one I would REALLY like to get rid of is Rohrabacher. Is there a good way of doing that?

The map I am currently drawing gives him a district that voted for Obama by 11 points in 2008 (and Loretta Sanchez gets a 68% Hispanic district), although Brown lost by 7 in 2010. It's a swing seat, with a slight D lean. Of course he might just jump to the adjacent seat and take on Mimi Walters in the primary.

And I totally forgot about Valadao. There are about 4-5 easy pickups for the Democrats.