My thoughts on AZ commission SCOTUS case

[jimrtex]

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.

Florida only permits a constitutional amendment to cover one topic.  They had to choose between setting criteria for legislative and congressional districts, or procedural.

Florida already had procedural requirements for legislative districts, which require immediate SCOFLA review of the districts.  That is why Florida had to redo some legislative districts, and it also gave the SCOFLA the opportunity to interpret the new criteria.

With regard to congressional redistricting, there were no procedures in place.  This meant that the congressional districts had to be challenged in state court.  The state court then applied the interpretation of the SCOFLA with regard to legislative districts to the congressional districts, and the legislature has since modified them.

So it seems plausible that the procedural requirements will be made consistent.

Or alternatively the legislature could be replaced by a commission.

[jimrtex]

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.

Ohio has had a legislative redistricting commission for over 150 years.

[Torie]

"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, ... "

Yup.  I think this challenge is fairly serious. When you combine degrading the concept of one person, one vote, with gerrymandering purposes, you get a rather toxic cocktail. You depart from one person, one vote, for good government reasons, not gerrymandering or other naughty reasons. And SCOTUS has now made clear that you don't skirt other rules for Section 5 purposes, inasmuch as Section 5 is dead, and even if it weren't, retrogression is fine as long as the ability to elect a candidate of a minority's choice is retained.

[jimrtex]

"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, ... "

Yup.  I think this challenge is fairly serious. When you combine degrading the concept of one person, one vote, with gerrymandering purposes, you get a rather toxic cocktail. You depart from one person, one vote, for good government reasons, not gerrymandering or other naughty reasons. And SCOTUS has now made clear that you don't skirt other rules for Section 5 purposes, inasmuch as Section 5 is dead, and even if it weren't, retrogression is fine as long as the ability to elect a candidate of a minority's choice is retained.

Roberts was coy in his discussion of the case saying "the case is pending on appeal before this Court, and I take no position on the merits question."  Meanwhile, Scalia and Thomas rejected the SCOTUS taking the case, knowing that there was another case coming.



1.Does the desire to gain partisan advantage for one political party justify intentionally
creating over-populated legislative districts that result in tens of thousands of individual voters
being denied Equal Protection because their individual votes are devalued, violating the one-person, one-vote principle?

2.Does the desire to obtain favorable preclearance review by the Justice Department
permit the creation of legislative districts that deviate from the one-person, one-vote principle?
And, even if creating unequal districts to obtain preclearance approval was once justified, is
this still a legitimate justification after Shelby County v. Holder, 133 S.Ct. 2612 (2013)?

3.Was the Arizona redistricting commission correct to disregard the majority--minority rule and rely on race and political party affiliation to create Hispanic "influence" districts?

[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.

Ohio has had a legislative redistricting commission for over 150 years.

Yes I should have been clearer that the proposed amendment expanded the existing commission and change voting requirement on it to force support from both major parties.

[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.

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?

I think the best decision would have supported a fairly narrow ruling that perhaps only applied to AZ and avoided the messy question about the schizoid nature of legislature in SCOTUS' Constitution.

[Torie]

Politico has a good summary of the redistricting legal action in NC, VA, AL, TX and FL. It's still odd to me that nobody sued in MD about screwing blacks out of a seat, even though I don't think fixing that would have generated another Pub seat.

TX of course has the potential to blow everything up across the Fruited Plain (well maybe not until after the next census), although I tend to doubt that will happen in the end. But then I blew it on predicting AZ now didn't I?

[CountryClassSF]

We worked very hard on the ballot initiatives in 2010 to have independent redistricting in California. The problem is, I don't think it was very independent when there was limited Republican representation on the board.

Do I think that on principle, that there should be some way, federally, to do something other than gerrymander? Yeah.  But, I'm not sure I can agree with the court ruling.  It is hard for legislature to be redefined as initiative.