The House and Senate Wednesday approved a Republican motion authorizing Speaker Andy Tobin and Senate President Steve Pierce to file or join legal redistricting-related litigation.
The lawsuit authorized would challenge the authority of the Independent Redistricting Commission, based on a section of the U.S. Constitution, which states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature therof…”
That language, plaintiffs are expected to argue, means that only the Legislature has the authority to redraw congressional districts.
Paul Bender, a constitutional law professor at Arizona State University who also unsuccessfully applied to be the IRC’s chairman, said he doesn’t think such a lawsuit has much merit.
The “times, places and manner” referred to in the Constitution refer to the actual machinations of elections, Bender said.
Further, Bender said “the Legislature” referenced in that section means the state government more broadly. Examples of this can be found in the several parts of the Arizona Constitution where election processes are described.
“It means whatever processes the state has established for elections,” Bender said. “It includes the state constitution and citizen initiatives.”
Republicans in both chambers defended their authorization of the lawsuit by saying the issue has not been legally tested.
“The Legislature never did delegate this duty,” said Rep. Ted Vogt, R-Tucson. “It needs to be litigated. It needs to be tested.”
Bender said that such a lawsuit, if it were successful, would also have far-reaching effects for redistricting, and not just in Arizona. Five other states, California, Hawaii, Idaho, New Jersey and Washington, also have independent redistricting commissions.
The authority of those states’ commissions would also be called into question under the lawsuit proposed.
Further, Bender said, the next part of the same section of the Constitution states that “Congress may at any time by law make or alter such regulations…” Bender said that if the suit were successful in arguing that the section of the Constitution applies to redistricting, that Congress would be able to redraw states’ congressional districts, throwing the commonly held basics of redistricting practice into chaos.
Two Republican-backed lawsuits challenging both maps have already been filed. They ask courts to drawing of new maps and one requests an interim legislative map for use in this year’s elections.
The Associated Press contributed to this report