A bid by state lawmakers to take back the power to draw congressional lines is legally flawed and should be rejected, the lead attorney for the Independent Redistricting Commission told the nation’s high court.
Mary O’Grady acknowledged that the U.S. Constitution does say that the “times, places and manner” of electing members of Congress “shall be prescribed in each state by the Legislature thereof.” But in legal papers filed with the Supreme Court, O’Grady said that doesn’t necessarily mean the 90 people who serve in the Arizona House and Senate.
O’Grady pointed out that the Arizona Constitution, while setting up the two legislative bodies, spells out that the people “reserve the power to propose laws and amendment to the (Arizona) constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”
She said that’s exactly what happened in 2000, when voters created the redistricting commission: They constitutionally took away the power that lawmakers had had since statehood to draw both congressional and legislative lines.
Those legislative lines are the subject of a separate federal court challenge by Republican interests on different grounds. This case, filed by the leaders of the Republican-controlled Legislature, goes solely to that federal constitutional language of who gets to craft congressional districts.
The fight is more than academic.
If the Supreme Court sides with the Legislature, it would allow lawmakers to scrap the lines the commission has drawn for the state’s nine congressional districts ahead of the 2016 election, lines that in the 2012 election resulted in the election of five Democrats and four Republicans. And that would pave the way for members of the GOP majority to alter the districts in a way to give their party’s candidates an electoral edge.
Central to the fight is what that federal constitutional language actually means.
Attorneys for the Legislature have urged a literal reading.
“‘Legislature’ means lawmaking body,” argued Peter Gentala, legal counsel for the state House and one of the attorneys seeking Supreme Court review. “There’s only one lawmaking body in Arizona that fashions the laws of the people.”
But O’Grady said that the framers of the U.S. Constitution used that language only because it was the only kind of “legislature” they understood and the only kind that existed in the late 18th century.
She said the idea of citizen initiatives did not become popular until the early 20th century, with it becoming part of Arizona’s own original constitution adopted at the time of statehood in 1912. And O’Grady told the justices it “makes little sense” to freeze the idea of what is the “legislature” to exclude a method of legislating that did not exist at the time of the framers.
Beyond that, she said the argument by the legislative leaders conflicts with the very idea of “federalism” and the idea that, absent preemption, the states themselves – and in this case, the voters – get to decide exactly how laws are made and legislating occurs.
Challengers also have argued that the 2000 voter-approved initiative pretty much has left the Legislature no “meaningful role” in the redistricting process. O’Grady said even if that is true, the argument is “irrelevant.”
Lawmakers lost the first round of the battle when U.S. District Court Judge Murray Snow sided with the commission.
Snow, writing for the majority of the three-judge panel that heard the case, said he reads nothing in the Constitution that precludes the voters, as the ultimate lawmakers, from deciding that legislative chore and instead giving it to the commission. He said that makes the lines the commission drew for the state’s nine congressional districts legal and enforceable.
But the ruling was not unanimous. Judge Paul Rosenblatt wrote in a dissenting opinion that the 2000 ballot measure empowering the commission to draw those lines amounts to an “evisceration” of the sole legal right of the Legislature to make that decision.
The Supreme Court is required to review the findings of the three-judge panel. But that does not require the justices to actually hear arguments, as they could rule strictly on the legal pleadings.C