Supreme Court Justices Skeptical Of Non-Legislative Redistricting

The Supreme Court seems likely to strike down state laws that take redistricting completely out of the hands of state legislatures.

Supreme Court Justices 2

Today, the Supreme Court heard oral argument in an interesting case out of Arizona that could have profound implications for recent efforts by states to take the redistricting process out of the hands of state legislatures and make them less partisan:

The power to draw congressional-district maps cannot be in the hands of an “unelected and unaccountable commission,” lawyers for the Arizona state legislature argued before the Supreme Court on Monday in a case that could not only decide the fate of independent redistricting, but could also upend some election laws ahead of 2016.

The case brought by the GOP-controlled Arizona legislature against the state’s Independent Redistricting Commission claims that isolating the legislature from the redistricting process violates the federal constitution’s Election Clause, which states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”

The commission, on the other hand, maintained before the court that the definition of “legislature” in the clause goes beyond just the legislative body to include laws passed by voters through initiatives and referendums.

Arizona’s Independent Redistricting Commission was created when voters in 2000 passed Proposition 106, an amendment to the state constitution that gives the responsibility of drawing congressional lines to an independent, five-member body. The map the commission drew in 2011 led to Democrats winning five of the state’s nine House seats in 2012.

Listing other election-related laws, such as voter-identification laws passed by ballot initiatives, Justice Elena Kagan repeatedly questioned Paul Clement, attorney for the Arizona legislature, on how the court would limit his argument solely to the redistricting process.

“All of these were done by referendum or initiative, so would all of those be unconstitutional as well?” she asked. “I mean, we could go further. There are a zillion of these laws.”

Kagan went on to grill Clement on the consistency of his argument that election-related laws had to be passed by legislatures, saying to Clement: “You’ve made many, many exemptions to (the argument) in the last 20 minutes.”

“I’m very happy to address hypotheticals, but this is about the most extreme case [of removing the legislature from election-related laws] we’re going to have,” Clement responded to questions from Kagan and Justice Anthony Kennedy.

Meanwhile, Justice Antonin Scalia seemed more sympathetic to the plaintiffs, targeting the commission’s interpretation of the term “legislature” in the Elections Clause to mean legislative process and to include more than just the legislative body.

“Give me one provision in the Constitution that has your read,” Scalia asked Seth Waxman, the lawyer for the Independent Redistricting Commission.

“This may or may not be the only one,” Waxman responded, going on later to quote instances in which the framers had used the word “legislature” more broadly outside of the Constitution.

The question in this case revolves around Article One, Section Four of the Constitution, which provides that the “time, place, and manner” regarding elections to Congress shall be determined by the legislature of each state. The state legislature of Arizona, which has been joined by representatives from state legislatures around the country, contends that this means that any law regarding apportionment of Congressional seats and the drawing of Congressional Districts must be approved by state legislatures and that the Arizona law is unconstitutional because it takes the manner of redistricting completely out of the hands of the legislature. The commission on the other hand essentially seems to be arguing that the Constitution’s requirement that election laws be adopted “by the legislature” is satisfied the fact that the process was approved by the state’s voters. This is an interesting and certainly inventive argument, but it strikes me as being incomplete because it fails to acknowledge the fact that the commission itself is not in fact a legislature of any kind since its membership is not elected by the people and is not answerable to the state legislature. On its face, then, it would seem that the state legislature has the stronger argument here, but the oral argument today makes it clear that the issue is murky in the eyes of the Court, and that the Court could end up ruling on this matter without actually ruling on the merits of the case.

Lyle Denniston notes that there appears to be a majority on the Court that is at the very least skeptical of the constitutionality of Arizona’s law:

Over and over again, the Arizona legislature’s lawyer in the Court on Monday, Washington attorney Paul D. Clement, insisted that “legislature” in constitutional terms has “a certain meaning”: it can only mean a “representative body” that writes a state’s laws.  So, he argued, it is unconstitutional for the people of a state to hand off congressional redistricting to “an unelected and unaccountable” state commission.  The Founding generation would have been appalled by that, he asserted.

While some members of the Court suggested that the reference to “legislature” might actually mean only “the legislative process,” referring to the capacity to pass laws by whomever a state assigned the task, that was not where most of the Justices’ inclinations seemed to point.   And while some Justices enticed Clement into conceding that a state’s people may act to vary the lawmaking process somewhat, he steadfastly refused to accept that the legislature could be forced entirely to the sideline on the redistricting question.

Two things were notably missing from the hearing, and that was telltale.

First, there were no hearty embraces of the kind of “direct democracy” that can lead a state’s voters to pass laws on their own authority, mostly or entirely independently of their legislature.  A Washington lawyer, Seth P. Waxman, who tried to counter the legislature’s arguments by seeking to keep the focus on the sovereignty of the people, had no one on the bench cheering him on.

When Waxman related the role of the people to the wording of the Elections Clause, he was sharply rebutted by Justice Antonin Scalia, who demanded to be told where, anywhere in the Constitution, those who wrote the document referred to a legislature as anything other than a representative body.

Justice Anthony M. Kennedy told Waxman that the history of the method of electing members of the U.S. Senate — by legislatures rather than by the people (before the passage of the Seventeenth Amendment in 1913, giving that power to the voters) — “works very much against you.”

Second, there was no analysis of why a state’s people might take the redistricting process into their own hands: that is, the reality that most legislators will draw district lines for congressional seats to favor their party’s candidates and to disfavor the other party’s.  In recent years, the Court has been more or less indifferent to the phenomenon of “partisan gerrymandering,” and that seemed evident again.

Rick Hasen also agrees that the Arizona law appears to be in trouble:

From my read of the transcript, Chief Justice Roberts, Justice Scalia, Justice Alito, and Justice Kennedy all seemed skeptical that the word “legislature” used in the Elections Clause could refer to an initiated redistricting process in which the legislature is not involved. Part of this turns on what Legislature meant at the time of the Constitution’s drafting, as well as the use of the term Legislature in other parts of the Constitution which seems to more clearly refer to the representative body. Of course, there was no regular initiative process at the time of the founding, but that fact can cut either way.  There are also two precedents which seemed to support the broader reading of “legislature,” but not only the conservatives, but also Justice Breyer, did not believe those cases settled the case.

When you add in Justice Thomas, who is likely to join fellow conservatives in reading Legislature in the narrow textual way, and possibly Justice Breyer, that looks like a majority which will reject a redistricting commission in which the state has no involvement.

What’s worse, Justice Scalia and others suggested that Congress (which has primary power over congressional elections) could not simply authorize redistricting commissions for drawing districts, because doing so would be an end run around the alternative power given to state legislatures.

On the surface, making the redistricting process less partisan is something that sounds like a good idea. As we’ve noted here at OTB many times in recent years, much of the gridlock and hyperpartisanship that we see in Capitol Hill today can be traced to the fact that such a large number of Congressional Districts on both sides of the aisle have been drawn in such as way as to protect the political interests of one party or the other, or simply to protect the interests of incumbents regardless of party. Here in Virginia, for example, Congressional redistricting after the 2010 census resulted in a Congressional map that essentially made every incumbent incredibly difficult to beat. While that plan has, in part, been tossed out by a Federal Court, it’s fairly clear that any future changes between now and 2020 in response to that ruling will do little to change the fact that each of Virginia’s Members of Congress will, most likely, not have to worry very much about a serious challenger in the General Election. The situation is much the same in many other states, and in others the process is even more blatantly partisan, which itself has led to the fact that Republicans are unlikely to lose control of the House  at any point before the first elections after the 2020 Census, which won’t happen for another seven years.

Changes to the law that make the process of redistricting less partisan would, therefore, seem to be a really good idea. However, the fact that something is a good idea doesn’t mean that it is permitted under the Constitution. In this case, the Constitution quite clearly seems to give state legislatures near-exclusive control over election laws, which redistricting most certainly is. The Arizona law is problematic in this respect because it takes the legislature completely out of the process and places it in the hands of an “independent” commission that, creative arguments notwithstanding, cannot fairly be called a legislature of any kind. For that reason alone, it would seem that the Arizona law is unconstitutional. Theoretically at least, the scheme could be saved if the law were changed to give the legislature a role the process — perhaps by giving the commission the authority to draw district lines but requiring that the ultimate plan be approved by the legislature in an up-or-down vote — but it isn’t the Supreme Court’s role to rewrite state laws. Instead, as a majority of the Court seemed to say today, the law itself must be struck down.

It’s possible that the Court will find some middle ground here, but it’s hard to see what that might be. In either case, we should expect the opinion on this one some time around the end of June along with the Court’s other high profile opinions. No matter which way the Court decides, though, it’s likely to have a huge impact on election laws at the state level going forward.

SCOTUSBlog has links to the pleadings in this case at their site, and the transcript of today’s argument is embedded below:

Arizona State Legislature v. Arizona Independent Redistricting Commission et al by Doug Mataconis

FILED UNDER: Campaign 2016, Congress, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. wr says:

    Five members of this court have declared time and time and time again that the only votes that count are those cast by billionaires. And since taking redistricting out of their hands gives a tiny amount of power back to the citizenry, it must be unconstitutional.




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  2. In this case, the fact that the Constitution clearly states that only state legislatures can make state election laws means the Arizona law is unconstitutional.

    And your analysis seems to leave out the fact that Justice Breyer, a Clinton appointee, also expressed serious skepticism about the constitutionality of the law during oral argument today.




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  3. al-Ameda says:

    To me, this is the interesting part:

    Listing other election-related laws, such as voter-identification laws passed by ballot initiatives, Justice Elena Kagan repeatedly questioned Paul Clement, attorney for the Arizona legislature, on how the court would limit his argument solely to the redistricting process.

    “All of these were done by referendum or initiative, so would all of those be unconstitutional as well?” she asked. “I mean, we could go further. There are a zillion of these laws.”

    The public quite often votes for popular referenda that have a questionable legal relationship to either the state or the federal constitutions. Also, unless the legality is egregiously wrong the courts are reluctant to overturn a popular public initiative.

    In California, the initiative process is very popular and very strong, as a result justices are quite sensitive to the fact that they could well be recalled or voted out of office if they find a popular voter-approved initiative to be unconstitutional.




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  4. @al-Ameda:

    The issue here isn’t really the manner in which the law was enacted, though, but the fact that it takes the redistricting process completely out of the hands of the legislature, which in and of itself seems to contradict the mandate in Article I, Section Three.




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  5. Scott says:

    “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.

    In this case, the fact that the Constitution clearly states that only state legislatures can make state election laws means the Arizona law is unconstitutional.

    Strictly speaking, it appears that the Constitution is only referring to Senators and Representatives. It says nothing of Judges, other state elected officials, propositions, etc. Nothing about all state election laws.




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  6. @Scott:

    The only thing at issue in this case are the commission’s authority to draw Congressional Districts.




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  7. al-Ameda says:

    @Doug Mataconis:

    The issue here isn’t really the manner in which the law was enacted, though, but the fact that it takes the redistricting process completely out of the hands of the legislature, which in and of itself seems to contradict the mandate in Article I, Section Three.

    Thanks Doug. I understand that.
    I was thinking along Kagan’s lines, in that I don’t doubt that there are election laws in some states that contradict Article 1 Section 3 of the Constitution. I suppose that they’re (those laws) fine until they’re challenged, right?




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  8. Dave Schuler says:

    This is not surprising. As Doug has noted, the U. S. Constitution could hardly be clearer on this subject.

    However, there are ways and means. For example and depending on state constitutional requirements, states could set up commissions to propose district boundaries which would be accepted or rejected by straight up or down votes. But that’s where the wheel hits the road. State legislators don’t want to do that. That’s been the problem all along.




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  9. OzarkHillbilly says:

    Arizona’s Independent Redistricting Commission was created when voters in 2000 passed Proposition 106, an amendment to the state constitution that gives the responsibility of drawing congressional lines to an independent, five-member body.

    Wow. The Constitution of the United States of America is anti-democracy. Got it. The things I learn here.




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  10. edmondo says:

    @OzarkHillbilly:

    If you didn’t learn that after Gore v. Bush then you are pretty obtuse.




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  11. OzarkHillbilly says:

    @edmondo: Restating the obvious. But go ahead, insult your allies, see how that works for you.




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  12. HarvardLaw92 says:

    @Doug Mataconis:

    Not buying it. The Constitution reserves to the state legislatures the power to determine election laws, but those legislators are also bound by the terms of their respective state constitutions with regard to the laws that they may pass addressing state bailiwicks. It’s well within the power of the voters in a state which permits amendment by popular vote to limit their legislature in this manner.

    Besides, Article 1 refers to the time, place and manner of HOLDING ELECTIONS. It does not speak to the determination of electoral districts, which is a distinctly separate function from actually holding elections (since parsing language seems to be the order of the day).




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  13. @Dave Schuler:

    However, there are ways and means. For example and depending on state constitutional requirements, states could set up commissions to propose district boundaries which would be accepted or rejected by straight up or down votes.

    If that were what the Arizona law established, then I think the process would be likely to survive a Constitutional challenge.




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  14. Franklin says:

    @HarvardLaw92:

    Besides, Article 1 refers to the time, place and manner of HOLDING ELECTIONS. It does not speak to the determination of electoral districts, which is a distinctly separate function from actually holding elections (since parsing language seems to be the order of the day).

    That’s what I was curious about. Doug, do you agree or disagree that it is a separate function?




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  15. @HarvardLaw92:

    Perhaps, but I think the argument made by the commission here is rather weak. The language of Article I, Section 3 clearly places authority to determine election laws in the hands of the state legislatures and, in some cases, Congress. Not an unelected state commission. As I stated above, if the Arizona law included a provision that required legislative approval via an up-or-down vote, without the ability of the legislature to alter the lines drawn by the Commission, then I don’t think there’d be a case here.

    As it stands, I think the commission is on weak grounds, and the tenor of the oral argument seems to indicate that there’s a majority that agrees. We shall see




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  16. HarvardLaw92 says:

    @Doug Mataconis:

    Um, no, the Constitution places the power to determine how to hold elections in the hands of state legislatures. That’s all that it grants. You’re adding words to Article I that aren’t in it.

    A strict reading of Article I gives legislatures the power to decide WHEN elections will be held, WHERE those elections will be held (i.e the locations of voting precincts) and the MANNER of those elections (i.e paper ballot? Electronic ballot? ID? No ID? et al ad infinitum). It also gives Congress the power to overrule those state regulations by force of legislation (hence the uniform dates for presidential and congressional elections).

    The power to determine electoral districts must be viewed as being one of the residual powers reserved to the states by virtue of the 10th Amendment, and as such the highest determining factor with regard to how that power will be executed by each state must be each state’s own constitution.

    Now – will that stop SCOTUS from ruling in a manner that suits its ideological majority? Not by a long shot, but as a matter of law this seems pretty clear to me. What I will find amusing, though, is how ostensible strict constructionists like Scalia and Alito suddenly become broad interpretationists when it suits them. The ruling – which I suspect Scalia will write – should be breathtaking to behold, if only for how artfully it sidesteps the language of Article I.




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  17. Turgid Jacobian says:

    @HarvardLaw92: these were the arguments that came to my mind as well




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  18. MarkedMan says:

    @HarvardLaw92: Exactly. But the reality is that this is a Republican Supreme Court that in Bush vs. Gore spelled out just how far they would go to favor the Republican party. Doug, you can parse all you want, and I’ll even concede that in this case the pro-Republican case is slightly stronger than usual (although by no means a slam dunk). But none of that matters. This court has shown over and over that it will come up with some reason to rule in favor of their party, no matter what. Exception: Bush v. Gore, when they all but said that they couldn’t think of a reason and therefore no one was ever allowed to cite the case as a precedent.




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  19. SC_Birdflyte says:

    @Doug Mataconis: As much as it pains me to find myself sympathetic to the thinking of Roberts, Scalia, and Alito, I think the plaintiffs have the stronger case. I think what might make the law unconstitutional is that it (if my reading is correct) completely cuts the state legislature out of the process. I think the Founding Fathers placed far too much faith in the probity and competence of legislators (as a group), but that’s not the issue before the court.




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