One disadvantage of blogging is that it occurs in real time, which can leave behind a string of contradictory posts when you change your mind about a complex issue. (Sometimes I feel like we need a blogging version of shepardizing.) In the upcoming Supreme Court case on Arizona’s constitutional amendment creating an independent commission to undertake congressional redistricting, my first thought was that the State Legislature’s challenge to this reform was without merit. Then I flipped. Then I questioned my flip-flop.
After reading the relevant briefs (especially the Brief of the United States as amicus curiae), I am now persuaded that the Act of Congress governing redistricting sanctions the new Arizona procedure. The Act of Congress in question refers to “state law” rather than “the State Legislature” in talking about redistricting. Since Congress clearly possesses the power under Article One, Section Four to oust state legislatures from making redistricting choices, the statute is valid. Thus, there is no need for the Court to reach the constitutional question of what the term “Legislature” means in Article One, Section Four. This is my final answer.