Big Week at the Supreme Court!

March 1, 2015

It’s a big week at the Supreme Court. The Court here’s oral arguments on March 2 in Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314. (I was a finalist for the Redistricting Commission; often, we are blessed in failure!) The Court has framed the issues as follows:  (1) Whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.

The “Elections Clause” provision is located in Article I, Section 4. It states:  “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” The federal statute provides for reapportionment of Congressional districts in accordance with state law, but state law must comply with the U.S. Constitution.

In Arizona, voters, acting in accordance with Arizona’s constitutionally mandated initiative process, approved a independent process for decennial redistricting. The process has not been without challenges, but it worked in 2000 and again in 2010. Nevertheless, in June 2012 the Arizona State Legislature filed suit to determine the constitutionality of the process. (Arizona residents: Your tax dollars are paying for this suit.)

Procedurally, this matter came before a panel of three District Court judges. Judge Murray Snow wrote the opinion upholding the Arizona process. There was a dissent on the merits, written by Judge Paul G. Rosenblatt.

Both opinions address two old U.S. Supreme Court cases, one from Ohio in 1916, and the other from Minnesota in 1932. In the Ohio case the Court upheld a referendum disapproving a legislative redistricting, while the Minnesota statutory scheme provided for a gubernatorial veto of a redistricting plan. The Court approved that process, too.

The majority read “legislature” broadly, to mean a state-approved system for redistricting. Judge Rosenblatt acknowledges the Court precedents, but thinks a system in which the legislature only picks four out of the five members of the commission is a bridge too far, in that there is really no meaningful legislative involvement. (In prior Court cases, the process returned to the legislature after the referendum and veto, respectively.)

Several justices on the Court—in particular, those on the Right side—abandon precedent with some ease. Further, the Arizona plan was not adopted by the legislature and later approved by voters, and the initiative process comes from the Arizona Constitution, not the legislature.

States will take a giant leap backwards if the Court sides with the legislature. That said, I suspect that is the likely outcome and, from a constitutional perspective, probably the right one. That we are addressing the question, however, reflects poorly on our sacrosanct U.S. Constitution and its ability to provide a substrata for a society living more than 225 years after it was written.

On Wednesday the Court will hear King v. Burwell, No. 14-114, the challenge to Affordable Care Act subsidies in states using the federal exchange. For prior MRW posts about this important case, go to King v. Burwell: The Affordable Care Act and the Supreme Court Meet Again and King v. Burwell; Can’t Quite Let It Go! The New York Times Sunday March 1 lead editorial, The Phony Legal Attack on Health Care also provides an excellent overview of the situation. Finally, and not for the first time, I call to your attention The Supreme Court at Stake by Linda Greenhouse for the New York Times on February 5.

Finally, I wrote Spiderman Goes to the Supreme Court on December 22, about the patent suit involving friends Steve Kimble and Bob Grabb, and Marvel Enterprises. Oral argument is now scheduled for March 31; stay tuned!

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