Who holds the redistricting power? Supreme Court will decide

 

With the case of Arizona State Legislature v. Arizona Independent Redistricting Commission currently before the U.S. Supreme Court, the Arizona legislature’s struggle to regain congressional redistricting power may soon be over.

 

Legislators filed suit against the AIRC in June 2012. Following a loss in district court, they appealed directly to the Supreme Court.

 

The legislature claims that Proposition 106, passed by Arizona voters in 2000, is unconstitutional under the Elections Clause of the U.S. Constitution. The initiative took congressional redistricting authority, previously given to the legislature, and vested it in the AIRC.

 

This new body has the power to redraw the congressional map, though there are limitations on how AIRC members are appointed and what procedures must be followed. The commission is also required to allow for a public comment period after releasing its proposed congressional map.

 

Under the Elections Clause (Article I, Section 4), the “Times, Places and Manner of holding Elections” in each state is determined by that state’s legislature. The Arizona legislature therefore claims that Proposition 106 violates this constitutional provision by completely removing the legislature from the redistricting process.

 

Moreover, Arizona legislators argue that the meaning of “Legislature” in the Elections Clause is clear, as is the Framers’ intent to vest this power in the state’s law-making body. The Election Clause is an express delegation of that power, they say, so there is no need to interpret whether “Legislature” refers to the law-making body or the state more generally.

 

The legislature also claims that it is excluded entirely from the redistricting process, since it cannot repeal any maps drawn by the AIRC or create new legislation to alter those maps. It does retain the power to appoint AIRC members, but those appointments can only be made from a pre-determined list, so this power has minimal impact.

 

For its part, the AIRC argues that, according to Supreme Court precedent (namely, Smiley v. Holm and Ohio ex rel. Davis v. Hildebrant), “Legislature” can refer to the legislative process more generally and not only to the body itself.

 

The initiative passed by Arizona voters was a legitimate part of that legislative process, as prescribed by the Arizona state constitution. The AIRC therefore claims that the resulting law, the entity created by that law, and the congressional maps drawn by that entity, are all constitutional under this common interpretation.

 

The AIRC also argues that there is still a clear role for the Arizona legislature in the overall process. After all, it has the ability to pass a redistricting plan that can then be referred to voters for approval. With this potential influence, state legislators are not, as they claim, wholly excluded from the process.

 

The prevailing argument is yet to be determined, but amicus briefs have been filed in support of the AIRC from multiple non-profit organizations, current and former politicians, and states themselves. Indeed, several states with similar independent redistricting entities, including California, New Jersey and Washington, will be left with the task of changing their redistricting laws if the Arizona legislature is victorious.

 

Many states and government officials have also weighed in with concerns about the fairness in redistricting procedures and the resulting impact on congressional elections should the Court rule against the AIRC.

 

Oral arguments are scheduled for March 2.

 

Juliana Stiles is a pro bono intern at the National Constitution Center. She is also a second-year student at the University of Pennsylvania Law School.