My thoughts on AZ commission SCOTUS case

[Torie]

I just listened to the oral argument before SCOTUS with some intensity. I thought the defenders of the AZ commission were beat up pretty brutally, except with respect to one argument. That was that if the legislature as a body has the sole power to fashion the ways and means of electing congresspersons, then just why are laws passed by referendum governing other aspects of voting, such as voting ID, vote by mail, etc. Constitutional, and would they not all bite the dust if the AZ commission is tossed? The point was brought up by Kagan and Sotomayor again and again. That is really all that they had really that had much punch to it, as it were.

I think the best answer back to Kagan and Sotomayor, not given in oral argument, is that with respect to vote by mail and so forth, it involves election procedures for all offices, including state offices, where with respect to state offices and election districts, there is no dispute that the state can do what it wants even if it cuts the legislature out of the action, and electing Congresspersons, is but one little item on the ballot. In theory, perhaps the legislature could object as to Congressional offices, and fashion its own rules just for that office, while having  separate election procedures from all the other offices, but in the real world that is just not going to happen, and it's wholly impracticable. The AZ commission case is different because the question before the court involves solely redistricting for Congress, and for no other offices, and thus the Constitutional question is real, not theoretical, and the carve out of rules as to redistricting just for Congress, totally practical rather than impracticable.

Odd that point was not brought up, and highlighted by counsel Clement for the plaintiffs. I wonder why. Other than missing this one argument, I thought Clement was a superb advocate for the Plaintiffs. He was just totally prepared on everything, and other than the issue discussed above, gave I thought the best possible answer to each and every question. The lawyers on the other side were good too, but just not in Clement's league.

Roberts I thought showed again, that he is the most facile on the Court in textual interpretation, as if he were a top notch contracts lawyer. He asked all the right questions, and highlighted the key issues, in that aspect of the case.

[Southern Senator North Carolina Yankee]

I realize it is hard to predict how the court will rule based on oral arguments, but would you say it is likely that the commission bites the dust?

[Torie]

I realize it is hard to predict how the court will rule based on oral arguments, but would you say it is likely that the commission bites the dust?

Assuming that somebody on the court defangs the assertion that as the AZ commission goes, so goes all initiative generated election laws, the way I think I did, I would guess that the odds are about 2-1 that the AZ commission will bite the dust, and maybe higher, and the decision might be 6-3 (Breyer joins the "conservative" five - he made clear he thought it was a rather novel and open issue) , or even 7-2 (Ginsburg hops on too - she didn't say much to help the defendants/respondents, and the only thing I remember her saying, was asking for reassurance that none of this impacted legislative redistricting for state legislatures, which assurance she received).

But sometimes what is said in oral argument can be misleading, and sometimes after oral argument, justices change their minds, when they actually see the draft opinions. I know I have in my practice. The written word is a very powerful thing, when it comes to helping one reason through difficult and complex issues. There is no substitute.

[muon2]

I would agree that the AZ Commission's argument seemed weak. If SCOTUS finds for the GA, I'll be looking to see if SCOTUS says they must have sole authority, or just that an initiative must give the legislature some role. If the latter it opens the door to a new initiative that would cure the defect.

[Torie]

I would agree that the AZ Commission's argument seemed weak. If SCOTUS finds for the GA, I'll be looking to see if SCOTUS says they must have sole authority, or just that an initiative must give the legislature some role. If the latter it opens the door to a new initiative that would cure the defect.

I doubt SCOTUS will get that far, to deal with cases where an initiative strips the legislature of some of their discretion, but not all of it, when it comes to Congressional redistricting. That would be dictum, and probably imprudent dictum. Clearly where the legislature voluntarily gives authority to a commission, by statute, that limits their authority, absent them passing a new statute, that is just fine (e.g. Iowa). What the court may well do, and should do, is make clear what they are deciding, and what they are not, that awaits another case on another day, to reach the merits on.

[Skill and Chance]

I would agree that the AZ Commission's argument seemed weak. If SCOTUS finds for the GA, I'll be looking to see if SCOTUS says they must have sole authority, or just that an initiative must give the legislature some role. If the latter it opens the door to a new initiative that would cure the defect.

I doubt SCOTUS will get that far, to deal with cases where an initiative strips the legislature of some of their discretion, but not all of it, when it comes to Congressional redistricting. That would be dictum, and probably imprudent dictum. Clearly where the legislature voluntarily gives authority to a commission, by statute, that limits their authority, absent them passing a new statute, that is just fine (e.g. Iowa). What the court may well do, and should do, is make clear what they are deciding, and what they are not, that awaits another case on another day, to reach the merits on.

So in your opinion, Iowa and Fair Districts Florida are pretty safe?  What about NJ and WA?  I think the legislature had some role in those e.g. by referring the constitutional amendment?

[jimrtex]

I just listened to the oral argument before SCOTUS with some intensity. I thought the defenders of the AZ commission were beat up pretty brutally, except with respect to one argument. That was that if the legislature as a body has the sole power to fashion the ways and means of electing congresspersons, then just why are laws passed by referendum governing other aspects of voting, such as voting ID, vote by mail, etc. Constitutional, and would they not all bite the dust if the AZ commission is tossed? The point was brought up by Kagan and Sotomayor again and again. That is really all that they had really that had much punch to it, as it were.

I think the best answer back to Kagan and Sotomayor, not given in oral argument, is that with respect to vote by mail and so forth, it involves election procedures for all offices, including state offices, where with respect to state offices and election districts, there is no dispute that the state can do what it wants even if it cuts the legislature out of the action, and electing Congresspersons, is but one little item on the ballot. In theory, perhaps the legislature could object as to Congressional offices, and fashion its own rules just for that office, while having  separate election procedures from all the other offices, but in the real world that is just not going to happen, and it's wholly impracticable. The AZ commission case is different because the question before the court involves solely redistricting for Congress, and for no other offices, and thus the Constitutional question is real, not theoretical, and the carve out of rules as to redistricting just for Congress, totally practical rather than impracticable.

Odd that point was not brought up, and highlighted by counsel Clement for the plaintiffs. I wonder why. Other than missing this one argument, I thought Clement was a superb advocate for the Plaintiffs. He was just totally prepared on everything, and other than the issue discussed above, gave I thought the best possible answer to each and every question. The lawyers on the other side were good too, but just not in Clement's league.

Roberts I thought showed again, that he is the most facile on the Court in textual interpretation, as if he were a top notch contracts lawyer. He asked all the right questions, and highlighted the key issues, in that aspect of the case.

The argument was made that there lots of initiatives dealing with elections and that it was scary if they were constitutionally suspect.  But I think that Kagan, Breyer, and Ginsberg are intellectually rigorous enough to realize that an initiative providing for female suffrage a century ago is not somehow suddenly going to go away for congressional elections.

(1) States do have the authority to define the qualification to vote for legislative elections.  The right to vote in congressional elections is derivative of the right to vote in legislative elections.

If women can vote for the legislature they must be able to vote for Congress.  If women can't vote for the legislature, they can't vote for Congress.

(2) This was all superseded by the 19th Amendment.

And even if they were irrationally concerned about possible fallout, it shouldn't matter.  Otherwise, they would be saying, "Sure its unconstitutional, but it might lead to lots of litigation."   Will they reconsider Miranda on that basis?

The fundamental conflict here is that the the quintessential purpose of a state constitution is to define how the state government is constituted.  With respect to the legislature, there is nothing more basic than how the legislators are elected (eg by district, and how the districts are delineated).  It would be dangerous to permit the legislature to define these at will.  With respect to congressional elections there is always the backup of Congress itself setting the regulations.

The SCOTUS has already ruled that Arizona and Kansas may require additional proof of citizenship beyond the assertion on the Federal postcard form for voting in state and local elections.  Kansas limited some voters to voting in congressional elections in 2014.  Arizona may have done the same.

[jimrtex]

I would agree that the AZ Commission's argument seemed weak. If SCOTUS finds for the GA, I'll be looking to see if SCOTUS says they must have sole authority, or just that an initiative must give the legislature some role. If the latter it opens the door to a new initiative that would cure the defect.

I doubt SCOTUS will get that far, to deal with cases where an initiative strips the legislature of some of their discretion, but not all of it, when it comes to Congressional redistricting. That would be dictum, and probably imprudent dictum. Clearly where the legislature voluntarily gives authority to a commission, by statute, that limits their authority, absent them passing a new statute, that is just fine (e.g. Iowa). What the court may well do, and should do, is make clear what they are deciding, and what they are not, that awaits another case on another day, to reach the merits on.

So in your opinion, Iowa and Fair Districts Florida are pretty safe?  What about NJ and WA?  I think the legislature had some role in those e.g. by referring the constitutional amendment?

Iowa is entirely safe since it is a legislative agency that creates the maps, and the legislature must approve the maps.

A challenge to Florida's law is still pending.  So far the courts have ruled it is similar to procedures that subjects a redistricting plan to popular or gubernatorial veto.  That is, it leaves redistricting with the legislature, but regulates the process.  I would expect that if the AZ commission goes down, that the Florida case with become more active, and the SCOTUS will accept the case.  If the Florida appeal is still active, the SCOTUS could take the appeal and immediately remand it the lower courts.  That is what they did with the Virginia congressional redistricting case.  As soon as they had ruled on the Alabama case, they threw the Virginia case back to the district court and told them to take into account the Alabama decision.

Of course in the case of Florida, the Arizona decision won't provide any answers, but will let the lower courts to develop a more complete record.

The Washington amendment was proposed by the legislature; it specifically left detailed rules with the legislature; and the legislature may amend a plan.  The current congressional plan was amended by the legislature.

[Skill and Chance]

I would agree that the AZ Commission's argument seemed weak. If SCOTUS finds for the GA, I'll be looking to see if SCOTUS says they must have sole authority, or just that an initiative must give the legislature some role. If the latter it opens the door to a new initiative that would cure the defect.

I doubt SCOTUS will get that far, to deal with cases where an initiative strips the legislature of some of their discretion, but not all of it, when it comes to Congressional redistricting. That would be dictum, and probably imprudent dictum. Clearly where the legislature voluntarily gives authority to a commission, by statute, that limits their authority, absent them passing a new statute, that is just fine (e.g. Iowa). What the court may well do, and should do, is make clear what they are deciding, and what they are not, that awaits another case on another day, to reach the merits on.

So in your opinion, Iowa and Fair Districts Florida are pretty safe?  What about NJ and WA?  I think the legislature had some role in those e.g. by referring the constitutional amendment?

Iowa is entirely safe since it is a legislative agency that creates the maps, and the legislature must approve the maps.

A challenge to Florida's law is still pending.  So far the courts have ruled it is similar to procedures that subjects a redistricting plan to popular or gubernatorial veto.  That is, it leaves redistricting with the legislature, but regulates the process.  I would expect that if the AZ commission goes down, that the Florida case with become more active, and the SCOTUS will accept the case.  If the Florida appeal is still active, the SCOTUS could take the appeal and immediately remand it the lower courts.  That is what they did with the Virginia congressional redistricting case.  As soon as they had ruled on the Alabama case, they threw the Virginia case back to the district court and told them to take into account the Alabama decision.

Of course in the case of Florida, the Arizona decision won't provide any answers, but will let the lower courts to develop a more complete record.

The Washington amendment was proposed by the legislature; it specifically left detailed rules with the legislature; and the legislature may amend a plan.  The current congressional plan was amended by the legislature.

But if it was literally "no popular votes on anything related to congressional redistricting" then wouldn't even WA and NJ fall?  And I don't know how ID and the Michigan rules came to be, but they might go down as well.

[Torie]

For the reasons outlined above, I don't think voting procedures or any redistricting rules that were promulgated by the legislature, are in play here (Michigan's rules about redistricting I believe are a law passed by the legislature, and thus not in play here for example). The only thing in play, is where a referendum overrides legislative law, and restricts its authority to redistrict.  Assuming the AZ commission is tossed, it will require additional cases to flesh out exactly how much, if any, legislative authority to redistrict Congressional seats can be limited via the referendum process, either as to actual rules, or by requiring supra majorities to pass or whatever. 

[jimrtex]

But if it was literally "no popular votes on anything related to congressional redistricting" then wouldn't even WA and NJ fall?  And I don't know how ID and the Michigan rules came to be, but they might go down as well.

The SCOTUS in Hildebrant nearly 100 years ago ruled that popular referendum can be part of congressional redistricting. 

This is the key case.  The SCOTUS made a distinction between the meaning of "legislature" with respect to prescribing the time, place, and manner of electing federal representatives and senators (Article I, Section 4); and "legislature" when choosing senators (Article 1, Section3, prior to the 17th Amendment); and ratifying constitutional amendments (Article V).

There had been attempts to interpret "legislature" broadly to encompass popular election of senators, and popular ratification of amendments.  The distinction that the SCOTUS made was that "prescribing the manner", referred to the legislative process of passing a law, while choosing a senator simply meant that the members of the legislature formed the electorate.   They weren't legislating - even though "choosing" and "ratifying" involve voting by legislators.

In Hildebrandt the SCOTUS said that the popular veto was part of the process by which legislation was made.   They made the same distinction in Smiley v Holm, with respect to a gubernatorial veto of redistricting legislation.  But in Hawke v Smith, regarding popular ratification of constitutional amendments. they said that legislature mean the body itself.   Hawke v Smith and Hildebrant were both from Ohio and were four years apart.

Prediction: The majority opinion will quote Hawke v Smith:

"What did the framers of the Constitution mean in requiring ratification by 'legislatures'? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation."

The minority opinion will quibble, or try to reframe the quotation.

"What did the framers of the Constitution mean in delegating the prescription of the manner of election to 'legislatures'?  That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation.  It means the total process by which laws are made by a State."

[Gass3268]

AZ commission survives!

[windjammer]

7-2 Torie haha?

[Torie]

7-2 Torie haha?

Perfection is a high standard to meet. Perhaps in the next life!  At least I put up odds. Lawyers always like to have some sort of exit strategy.

[publicunofficial]

Torie's write-up made me pretty sure the commission would be tossed. Glad it won't be.

[rob in cal]

     In the Arizona situation the ruling helps the Dems, but in California, had our commission also been thrown out through a follow up case, it would have possibly led to a new, more pro Dem map.  Thank you Ginsburg and the liberals for saving us, in the short term anyway, from a potential 44-9 Dem over GOP delegation. It would have been fascinating to see the vote lineup had it been California Dems  trying to abolish our commission in this case.

[jimrtex]

7-2 Torie haha?

How do you figure 7-2?

Scalia signed on to Roberts dissent.

Scalia's dissent said that the legislature didn't have standing, so that lower courts rulings should have been thrown out.  It went on to say that Ginsburg's decision on the merits was such crap that he would vote against it.

[jimrtex]

Prediction: The majority opinion will quote Hawke v Smith:

"What did the framers of the Constitution mean in requiring ratification by 'legislatures'? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation."

The minority opinion will quibble, or try to reframe the quotation.

"What did the framers of the Constitution mean in delegating the prescription of the manner of election to 'legislatures'?  That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for the purpose of interpretation.  It means the total process by which laws are made by a State."

I was correct, except for Justice Kennedy's vote.

[Southern Senator North Carolina Yankee]

What is the next step? A new set of standards for the commission? A new vetting process for its members?

[Skill and Chance]

What is the next step? A new set of standards for the commission? A new vetting process for its members?

Well, it would have to pass as a 2016 or 2018 initiative.  Whether it could be binding retroactively on the 2011-20 districts is probably another lawsuit in itself.

Realistically, this decision means with near certainty that millions will be poured into commission initiatives by both sides in several of the yellow and blue-shaded states over 2016-20:

https://en.wikipedia.org/wiki/Initiatives_and_referendums_in_the_United_States

Prime targets for Democrats should be Ohio, Michigan, Missouri, Utah (because lean D compact SLC seat), and for Republicans, Oregon and Colorado (because even if it's not a trifecta, the state supreme court always picks Dem-leaning maps) for Republicans.  Democrats might also want to try it in NE, OK and AR for compact Omaha and OKC seats and the possibility of a majority-minority Obama seat in AR, but they're long shots.  The state supreme courts in Florida and Illinois have thrown out independent commission amendments in the recent past.  Whether restrictions could be imposed on the legislature in Illinois or further tightened in Florida is unclear, but the opposition parties would have reason to try.  Republicans could also try it in MA, but a non-partisan map would probably still elect only D's.  The worst offenders, NC and MD, don't have the initiative, and the MD map already survived a referendum attempt in 2012.

Ignoring IL and FL, Democrats have the theoretical opportunity to take 50 districts off the table in 2011 GOP trifecta states where they are unlikely to control the process in the future, plus 8 in AR and MS, which they will probably not have a say in again for decades.  Republicans can only target 14 districts in MA and OR.  Either side can try to block a trifecta from drawing swingy NV or CO.

[muon2]

OH already has a redistricting reform amendment scheduled for the ballot on Nov 3, 2015. It proposes a bipartisan (but not independent) commission that will be limited to legislative districts.

There is a bipartisan petition drive to place an independent commission amendment on the 2016 ballot in IL. It would only affect the legislature due to the constitutional restrictions on citizen initiatives.

[Skill and Chance]

OH already has a redistricting reform amendment scheduled for the ballot on Nov 3, 2015. It proposes a bipartisan (but not independent) commission that will be limited to legislative districts.

There is a bipartisan petition drive to place an independent commission amendment on the 2016 ballot in IL. It would only affect the legislature due to the constitutional restrictions on citizen initiatives.

Interesting.  In your judgment, could Republicans contest control of either house under a non-partisan map?  Clearly, they would pick up enough seats to sustain vetoes in normal years.

Also, do you know the full background on what is permissible in Florida?

[muon2]

I read the opinion and dissent and there were two points in the opinion that I thought were interesting observations. They note that the AZ constitution had the initiative in its original document when AZ was admitted as a state in 1912, and that the initiative was clearly identified as coequal as a means of enacting laws. Congress accepted AZ, so it seems that Congress was recognizing the initiative as part of the legislature. Roberts rebuttal of the AZ constitutional language didn't convince me in light of the unique historical circumstance of their constitution.

The other interesting part was the debate over the language in 2USC2a(c). The opinion points out that it was specifically changed by Congress in 1911 to reflect the growing use of initiative and referendum by states, and Congress allowed for their use by changing legislature to law. That would be Congress exercising its authority over the states. Roberts' strongest statement against that was that it was Congress adopting a state law not overriding it and that it can't replace one actor with another. He doesn't convince me that Congress can't say that plans derived from initiative procedures used in redistricting are valid redistricting plans. I think that Congress could pass a law establishing a national redistricting commission unless states have their own. This doesn't seem beyond the reach of that. I don't read the use of until the same way Roberts does, so I would find that the change to law from legislature is relevant.

[Torie]

I read the opinion and dissent and there were two points in the opinion that I thought were interesting observations. They note that the AZ constitution had the initiative in its original document when AZ was admitted as a state in 1912, and that the initiative was clearly identified as coequal as a means of enacting laws. Congress accepted AZ, so it seems that Congress was recognizing the initiative as part of the legislature. Roberts rebuttal of the AZ constitutional language didn't convince me in light of the unique historical circumstance of their constitution.

The other interesting part was the debate over the language in 2USC2a(c). The opinion points out that it was specifically changed by Congress in 1911 to reflect the growing use of initiative and referendum by states, and Congress allowed for their use by changing legislature to law. That would be Congress exercising its authority over the states. Roberts' strongest statement against that was that it was Congress adopting a state law not overriding it and that it can't replace one actor with another. He doesn't convince me that Congress can't say that plans derived from initiative procedures used in redistricting are valid redistricting plans. I think that Congress could pass a law establishing a national redistricting commission unless states have their own. This doesn't seem beyond the reach of that. I don't read the use of until the same way Roberts does, so I would find that the change to law from legislature is relevant.

Interesting points, but the ruling was not limited was it to the concept that Congress exercised its authority to authorize Commissions, and did it twice with respect to AZ as it were per your first point), but rather through a questionable interpretation of the term "legislature" (because of the compelling public policy issue in play)? What you are saying above would not have required a redefinition of the term "legislature" would it?

[jimrtex]

What is the next step? A new set of standards for the commission? A new vetting process for its members?

There are two other pending cases.  One in state court challenges procedural flaws in creating the congressional map.  It has been stayed pending the SCOTUS decision (i.e. if the AIRC didn't have authority to redistrict in the first place, it wouldn't matter whether they had followed the law in the first place).  This probably won't go very far. 

When the AIRC was choosing its mapping consultant, Mathis contacted each of the Republican members asking for their support, and suggesting that they might need a 3rd vote in the future.  The mapping consultant, based in Washington D.C., had never done redistricting before, but had done targeting for political marketing.  100% of their clients were Democratic candidates.

There are quorum and public meeting requirements for the AIRC.  Mathis skirted these requirements by talking to each of the Democratic members separately.

The Constitution requires the AIRC during the comment period to consider comments by the legislature in the form of a memorial or minority report.   The Arizona legislature did so.  When the attorney for AIRC explained this provision, one of the Democratic members asked if that mean the commissioners could read the resolution if they chose to, and was told that was OK.  The only formal "consideration" of the resolution was to note receipt in the commission minutes.

The commission is required to produce a "grid plan", and then adjust it to meet other requirements.  There is no evidence of any adjustments to the grid plan.

But the Arizona courts will likely simply determine that all the provisions were simply to guile the voters in passing the measure in the first place.

There is also a federal lawsuit, Harris v Arizona Redistricting Commission, challenging the legislative plan on equal protection grounds.



It is currently on appeal to the SCOTUS.  When the AIRC was proposed it was said that it would reduced the deviation among legislative districts.  A criteria was that congressional districts had to vary as little as practicable.  The identical criteria was applied to legislative districts.  You'd have thunk that they both mean that there was no minimum.

Since the minority opinion suggests that this decision illustrates the failure of the commission process, it would seem quite possible that the court would accept the case, if for no reason other than to let Justice Kennedy explain why this is not political gerrymandering, but that he knows it is out there somewhere.

The likely popular interpretation of the Arizona decision is that SCOTUS approved the procedure used in Arizona.  This is equivalent to saying that the Lopez Torres decision was a ringing endorsement of New York's bizarre scheme of electing judges, or that all judges should be elected.

So the Arizona legislature should propose to replace Arizona's broken scheme with something like that in California.