Constitutional disputes sometimes turn on technical legal terms: What is “due process of law,” for example, or “double jeopardy”? But most of the Constitution isn’t written in legalese, and some important cases are about the meaning of ordinary language. National Labor Relations Board v. Noel Canning, last year’s “recess appointment” case, had been decided by the court below by citing an 18th century dictionary on the meaning of “the.” (The Supreme Court majority didn’t decide the case on dictionary grounds, though Justice Antonin Scalia in his angry concurrence managed to kick up quite a row about the meaning of “happen.”)
Here’s another constitutional conundrum: What does “legislature” mean?
The answer could determine an issue at the heart of our current poisonous politics. Can the voters of a state take control of drawing House districts out of the hands of their elected legislators and entrust it to a bipartisan commission? That’s what Arizona voters did in 2010. Now the legislature is demanding to be allowed back in.
Article 1, section 4, clause 1 of the Constitution says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” No one questions that state governments can draw their own legislative districts. But what does “legislature” mean? Does it mean “the legislative power of a state,” or “the bunch of politicians with bad haircuts who meet at the state capitol every year or so”?
Briefs filed with the Supreme Court recite this question in the elevated language of original understanding, Madisonian theory, and the Federalist. But like many, if not most, important constitutional cases, Arizona State Legislature v. Arizona Independent Redistricting Commission is really comic-opera politics in knee britches.
In 2000, civic groups in Arizona—including the League of Women Voters, Common Cause, and the Arizona School Boards Association—joined a bipartisan group of political leaders to propose a voter initiative, Proposition 106. Approved by 56 percent of the voters, it created a new, bipartisan panel called the Independent Redistricting Commission. The commission’s job is to create new districts for the legislature and Arizona’s nine members of the U.S. House. It is not permitted to consider protection of incumbents; it is, however, under a duty to make as many districts “competitive” as possible. The legislature may not approve or disapprove the commission’s maps.
The appointment process is labyrinthine: First a commission on appointments proposes names, then officials of the legislature choose two Republicans and two Democrats to serve. These two then select an independent to serve as chair. The governor can remove a member for neglect of duty or misconduct, but otherwise, political control is nonexistent.
Despite its good-government origins, the commission broke into partisan squabbling; the chair, a political independent, often sided with the two Democrats. Governor Jan Brewer, a Republican, fired her. The state supreme court reinstated the chair, saying she hadn’t neglected or abused her office.
The Arizona Republican Party bitterly protested the commission’s 2012 maps. In the most recent legislative elections, the voters picked Republicans by a 17-13 margin in the state Senate and 36-24 in the House. In the U.S. House, the margin flipped from 5-4 Republican to 5-4 Democratic. A partisan districting plan, however, could have given the Republicans a supermajority in the statehouse and kept one or more additional House seats for the GOP.
Now the GOP-controlled legislature has sued, arguing that the Constitution doesn’t allow redistricting of a state by to any official body not controlled by “the legislature thereof.” A three-judge panel below dismissed the suit. The Court will decide, as soon as September 29, whether to affirm the three-judge court or put the case down for a full hearing. The constitutional issue is a close one; the political division underlying it is stark.
Our political system, as we all know, has degenerated into a partisan abattoir; in Congress and in many state capitals, compromise and conciliation are as out of fashion as the straw boater. One major reason is partisan gerrymandering, which produces legislators (on both sides of the aisle) who respond to no one except their wealthy funders and their partisan base. In a 2004 case called Vieth v. Jubelirer, the Supreme Court ducked the chance to put the brakes on this odious practice. Writing for four members of the Court, Scalia scoffed at the idea that partisan thimblerigging was worthy of the Court’s attention: “‘Fairness’ does not seem to us a judicially manageable standard.”
By the time of Vieth, the voters of Arizona had already decided to take politics out of redistricting themselves. The question then becomes whether the Constitution allows them to do so.
The Court has decided a few cases—the most recent nearly 80 years ago—approving the involvement of a state’s governor, courts, and voters in the redistricting process. In a 1916 case called Ohio ex rel. Davis v. Hildebrandt, Ohio voters by referendum disapproved a legislature’s new district map; when the legislature sued, the Court said that “the referendum constituted a part of the state Constitution and laws, and was contained within the legislative power.” Article IV of Arizona’s state constitution sets up the legislative branch with this declaration: “The legislative authority of the state shall be vested in the legislature ... but the people reserve the power ... to approve or reject at the polls any act, or item, section, or part of any act, of the legislature.” Since statehood, the commission argues, the “legislative power” has been vested in the people.”
Lawyers for the legislature respond with Supreme Court caselaw suggesting that “legislature” means “the representative body which made the laws of the people,” not the entire legal apparatus of a state. And they note correctly that none of the previous cases involved a system in which the legislature had no role at all in drawing district maps.
The law in this area, sparse as it is, seems to be relatively settled—the legislature lost below because of these precedents. This case, however, comes to the Court as an “appeal”—that is, directly from a decision by a three-judge district-court panel below. The Court is more likely to hear appeal cases than cases brought to it by petition. In theory, it’s supposed to hear all appeals, but in fact it can reject an appeal for lack of a “substantial question,” meaning in essence that there’s nothing in the case that interests the justices.
The valence of this case from day one has been sharply partisan. Republican conservatives and dark-money groups hate the very idea of “non-political” redistricting. And of course Democrats misuse their legislative majorities to the same end. The ill effects of this scorched-earth strategy are easy to see. The Court has refused to prevent gerrymanders. To insist that the people of a state can’t do it either would be something else again.
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