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Independent redistricting commission in jeopardy? Today’s oral argument in Plain English

Fifteen years ago, in the hope of eliminating or at least reducing partisan battles over redistricting, Arizona voters amended the state’s constitution to hand the power to draw boundaries for federal congressional districts over to an independent commission.  The state’s legislature went to court to challenge that transfer of authority, and after an hour of oral arguments that focused almost exclusively on the words of the Constitution, it appeared that the Justices may be poised to return the power to the legislature – which could spell trouble not only for the Arizona commission, but also for California and the handful of other states with similar schemes.  Let’s talk about Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English.

The legislature was represented at the Court today by super-lawyer and former U.S. Solicitor General Paul Clement, who began with the theme that he would emphasize throughout his argument:  the Arizona voter initiative “permanently divests” the legislature of its authority over redistricting, handing it over to an “unelected and unaccountable” state commission.  Such a result, he told the Justices, is “plainly repugnant” to the Constitution, which makes clear that only the legislature itself has the power to draw redistricting maps.

Clement faced some skepticism from Justices Sonia Sotomayor and Ruth Bader Ginsburg, two of the Court’s more liberal Justices.  Sotomayor, for example, suggested that some of the Court’s earlier election cases had read the term “Legislature” to refer to the entire lawmaking process, rather than limiting it to the institution itself.  And at one point she wondered aloud why such a reading wouldn’t be simpler because it would give the states more leeway to experiment with things like redistricting.

But Clement’s primary antagonist was another one of the Court’s more liberal Justices, Justice Elena Kagan.  Picking up on questions from Justice Anthony Kennedy, Kagan pressed Clement over and over again on what a ruling for the legislature might mean for other state election laws – such as allowing voting by mail or imposing voter identification requirements – that, like the initiative that created the Arizona commission, were not enacted by state legislatures.  “There are zillions of those laws,” she told Clement.  Clement responded that such laws might not necessarily also be unconstitutional, depending on their specific facts.  Although Kagan didn’t seem satisfied with that answer, Clement urged the Court to focus on this case, rather than hypothetical laws not before the Justices:  “This,” he reminded the Court, “is about the most extreme case that you’re going to have.”  “If the Elections Clause means anything,” he said, “it means that you can’t cut the legislature out of the process entirely.”

The commission was represented today by another titan of the Washington legal world, Seth Waxman — also a former Solicitor General.  If Kagan was Clement’s toughest questioner, Justice Antonin Scalia quickly revealed himself to be Waxman’s.  He repeatedly (and somewhat rhetorically) asked Waxman to “give me one provision of the Constitution that uses the term ‘Legislature’” to mean something other than the institution, adding that “I can’t find a single one.”  And Justice Samuel Alito echoed this line of questioning, enquiring whether there “is any other provision where legislature means anything other than the conventional meaning?”

More ominously for Waxman, although Justice Anthony Kennedy had earlier expressed to Clement some concern about how broadly a ruling for the legislature might apply, he appeared even more dubious about the commission’s position.  At one point, he told Waxman that “history works very much against you” because until the Constitution was amended to allow voters to elect senators directly, it also provided that senators from each state “shall be chosen by the Legislature thereof” – a phrase that was consistently understood to refer only to the institution.  And Kennedy later questioned how the commission could therefore read “Legislature” to mean one thing in that provision of the Constitution but something very different in the Elections Clause.

The Justices seemed mostly uninterested in the two other issues in the case:  whether the legislature has a right to challenge the transfer of redistricting power to the commission at all; and whether a federal law passed by Congress might authorize the delegation of authority to the commission.  So it looks like the Justices are likely to decide the case based on their reading of the Constitution instead.  And with no obvious fifth vote in sight for the commission’s argument that the word “Legislature” includes the people’s power to make laws – Justice Stephen Breyer did not ask Paul Clement any questions, while the Chief Justice seemed like a fairly solid vote for the legislature – the commission’s days could be numbered.  We’ll know more by the end of June, and when we do we will be back to report on the decision in Plain English.

Recommended Citation: Amy Howe, Independent redistricting commission in jeopardy? Today’s oral argument in Plain English, SCOTUSblog (Mar. 2, 2015, 5:39 PM),