On Second Thought . . .

In this season of forgiveness, I come to confess error.  A few months ago, I wrote some posts arguing that the procedure for drawing congressional districts in Arizona is constitutional.  After working through the materials, though, I have changed my mind and now think that the Supreme Court should (probably) reverse in Arizona Legislature v. Arizona Legislative Redistricting Commission, assuming that the Court reaches the merits.

The dispute (in case you don’t remember) involves Arizona’s adoption of a state constitutional amendment that vests redistricting power in the hands of an independent commission rather than the state legislature.  The Legislature sued claiming that Article One, Section Four, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .” precludes a state constitution from removing that power from the Legislature.  The Court’s precedents in this area hold that “the Legislature” in this context refers to the ordinary lawmaking process under a state constitution, which can involve a Governor’s veto or a referendum that overrides the Legislature’s proposed redistricting.  Proponents of the Arizona plan want to take this a step further to say that whatever the state constitution provides for redistricting satisfies the Federal Constitution so long as the Legislature has some role, which it does under the Arizona plan.

Why did I think the Arizona process was valid?  First, I said that to hold otherwise would leave the voters of a state with no remedy for partisan gerrymandering.  If their only recourse was to go to the Legislature that was the source of the problem, then that was no recourse.  I now see, though, that this answer was too simplistic.  A state could adopt a constitutional provision that says “congressional districts may not be drawn to favor one party over the other” or the equivalent language.  This would leave the districting in the hands of the Legislature as Article I requires, but would limit that authority in a way that can satisfy concerns about partisan gerrymanders.

The second thought that occurred to me after I wrote my posts is that the Court’s precedents under Article I, Section 4 essentially say that congressional districting should be treated just like any other state legislation.  Arizona, though, is not doing this.  It created a special process without the consent of the Legislature for drawing districts.  In that sense, the procedure before the Court really is unprecedented and stands on shaky ground.

The final point that occurred to me belatedly is that proponents are essentially arguing that “the Legislature” in Article One should be read as “legislative authority.”  Legislative authority could be conferred upon anyone by a state constitution, so then whatever the state constitution says on that score goes.  But there’s a problem with this logic.  In Article Four, Section Two, the Constitution uses the term “executive authority of the State” to describe the extradition of alleged criminals.  Thus, the Framers could have said “legislative authority,” in Article One, Section Four, but they instead chose the more specific term “the Legislature.”  I think that weighs in favor of the constitutional challenge.

While these three factors have (tentatively) changed my view on how the merits of the case should be addressed, one significant counterargument remains.  Article One, Section Four lets Congress override a state’s process for drawing congressional districts.  Accordingly, one could say that there is no judicial remedy for a state’s violation of that same provision–only Congress can act.  As Pauline Maier explained in her book on the ratification of the Constitution, folks paid a lot of attention to Article One, Section Four in 1787-1788.  This history needs to be examined more thoroughly to see whether disputes over whether “the Legislature” has acted should be deemed a political question.

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2 Responses

  1. Joe says:

    “This history needs to be examined more thoroughly to see whether disputes over whether “the Legislature” has acted should be deemed a political question.”

    As seen in the recess appointment case, “history” here should be the last 200 years, not merely 1787. Anyway, though I don’t think the opinion below irrational or anything, as I noted at the time, it does seem a strong argument is present the state went too far here.

  2. Gerard says:

    Since the Court adjudicated the two cases brought under this provision, saying that this raises a political question now would be hard.