Fate of non-partisan redistricting on the line
on Oct 2, 2014 at 1:04 pm
The Supreme Court, taking on new controversy on the eve of opening a new Term, on Thursday stepped into an Arizona case that may settle the future of attempts to take the redrawing of congressional districts out of the hands of legislatures to make that effort non-partisan.
If the Court does reach the core issues in the case of Arizona State Legislature v. Arizona Independent Redistricting Commission, and it gave itself a couple of options not to do so, it could make a major difference in the degree to which future membership in the House of Representatives is politically polarized. In recent years, state legislatures dominated by one or the other major political party have carved up districts in ways to help their party’s candidates.
The Arizona case was one of eleven that the Justices added to their docket for decision in the Term that formally opens next Monday. Despite very wide and deep public interest in the new cases awaiting the Court on same-sex marriage, the Court took no action on any of those Thursday. If they are going to be denied review, that might become known next Monday. Otherwise, they are likely to be taken up by the Court at its next Conference, on October 10.
In its new appeal, the Arizona legislature urged the Court to rule that the Constitution’s Elections Clause prohibits a state from cutting its legislature mostly, or totally, out of the process of drafting new election districts for its House members, after each new federal Census.
From the time Arizona became a state in 1912, until 2000, its legislature had the authority under the state constitution to draw the lines of congressional districts, subject to possible veto by the governor. However, in 2000, the voters of the state-approved “Proposition 106,” an amendment to the state constitution assigning that task to an independent, five-member body — four chosen by legislative leaders but only from a list handed to it by another state agency, and a fifth member to act as chairman when chosen from that same list by the other four members.
In 2012, after the commission carried out its duty following the 2010 Census, the state legislature sued, claiming that this took away its power that, it argued, was given to it by the federal Constitution’s Elections Clause.
In taking on the case and planning to hold a hearing on it after full briefing, the Court said that it could rule on two issues on the merits: does the Elections Clause allow the task to be shifted away from the legislature; and, alternatively, is that forbidden by a federal law that assigns the redistricting task “in the manner provided” by state law?
But the Court, in the end, may not answer either of those questions. It also told lawyers to argue whether the state legislature had a legal right even to file its lawsuit — a technical question about “legislative standing.” If a party that sues does not have “standing,” then the Constitution’s Article III will not allow a federal court to rule on that case.
And, because the case reached the Court in the form of a formal appeal, the kind over which the Court has little or no discretion to bypass, there is a separate question of whether the Court did actually have to take on the case (that is, does it have formal jurisdiction). In deciding that issue, the Court may consider not only the “standing” issue but also claims by the supporters of the independent approach that the dispute is a “political question” not open at all to decision in the federal courts.
In preparing their briefs and in the coming oral argument, lawyers will have to deal with all of the questions the Court posed.
The Court has not yet assigned that case, or the other ten newly granted review, for oral argument. It still has four slots open in its January hearing schedule, so some are likely to be put in those slots, and the others could go into the February calendar, or later.
Here, in summary form only, are the issues at stake in each of the other newly granted cases:
Tibble v. Edison International — time limit for suing the manager of an employee benefit plan for faulty decisions on investing plan assets (review limited to question written by the Court)
Coleman-Bey v. Tollefson — scope of federal law barring a prison inmate from filing a new lawsuit over prison conditions in federal court if three prior lawsuits had failed because they had no merit
Ohio v. Clark — constitutional limits under the Confrontation Clause on the use in a criminal trial of out-of-court statements made by a child about being sexually or physically abused
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project — whether federal law against racial bias in home sales and rentals allows lawsuits based on the theory that a policy treats minorities less favorably (This case involves an issue the Court has agreed to decide twice before, in cases that ultimately ended without rulings on it.)
Kerry v. Din — scope of the authority of State Department consular officers to deny visas to individuals seeking to enter the United States — in this case, the non-citizen spouse of a citizen
Williams-Yulee v. The Florida Bar — constitutionality under the First Amendment of a state ethical rule barring candidates for state judicial posts to personally solicit campaign funds
Rodriguez v. United States — justification needed by police officer, after he has pulled over a vehicle for a traffic violation, to go beyond minimally intrusive searching of questioning
Armstrong v. Exceptional Child Center — right of providers of Medicare services to sue under the Constitution for a state’s failure to provide adequate funds for such services (The Court had agreed to rule on this issue in 2011, but wound up not doing so then.)
EEOC v. Abercrombie & Fitch Stores — scope of the legal duty of a company under the federal law banning workplace discrimination based on a worker or job applicant’s religion
Baker Botts, L.L.P. v. ASARCO L.L.C. — power of a judge in a bankruptcy case to award to a law firm the recovery of professional fees for the time and effort spent in defending an application for such fees