Arizona Lawsuit, Challenging Independent Redistricting Commission on Election Clause Grounds, is Delayed

As noted earlier, on June 7 the Arizona legislature filed an interesting federal case, arguing that Independent Redistricting Commissions are unconstitutional as applied to U.S. House elections, because the Elections Clause in Article One of the U.S. Constitution requires that legislatures themselves must pass all state laws relating to congressional elections. That case is Arizona State Legislature v Arizona Independent Redistricting Commission, 2:12-cv-1211.

The legislature probably made a legal error when it asked for a 3-judge U.S. District Court. The redistricting commission is arguing that this case is not appropriate for a 3-judge U.S. District Court. Federal law says cases challenging redistricting of congressional elections goes to a 3-judge court, but the redistricting commission says this case isn’t about whether the redistricting plan itself is unlawful, but instead is a case about the method by which Arizona carries out redistricting. This side dispute is eating up valuable time, if the legislature wanted to get the case settled quickly.

One comment

  1. Jim Riley · · Reply

    The initial filing asked for an injunction starting the day after the 2012 election. That is, the legislature is not seeking to forestall use of the unconstitutionally promulgated congressional districts for 2012.

    There is really no way to resolve the underlying interpretation of the Elections Clause short of the US Supreme Court. We already know what the briefs are going to say. The redistricting commission is going to argue that Hilldebrandt and Smiley apply, and the legislature is going argue that is too broad an interpretation.

    I don’t think that they were wrong to request a 3-judge panel.

    The issue is over interpretation of 28 U.S.C. § 2284(a):

    “A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”

    The Arizona Legislature is arguing that the process by which the map was created was unconstitutional. The redistricting commission is trying to split hairs over process vs. product. But a product of an unconstitutional process is an unconstitutional product, especially when the sole purpose of that process is creation of a particular product.

    About the fundamental issue:

    States and legislatures do not have an inherent right to regulate congressional elections that derives from their sovereignty. If there was not a federal constitution, there would be no Congress, and therefore no need for a State to regulate congressional elections.

    The federal constitution grants the authority to regulate the manner of congressional elections to the legislatures of the states, subject to override by Congress. But Congress hasn’t gone much beyond requiring election from single member districts (Congress could require that districts not be used; and it would be quite obvious that the People of Arizona do not have some intrinsic right to create a redistricting commission for congressional purposes).

    The People of Arizona may use their constitution-making power to distribute political power, for example providing for a bicameral legislature, setting session lengths, providing for a gubernatorial or popular veto, etc. That is they may define how the process of legislation is executed.

    But it is dubious that they can take legislative authority with regard to the time, place, manner regulation of congressional elections away from the legislature – such that the legislature may not act.

    Note: The California legislature is required by the California Constitution to provide for Top 2 Open Primary Elections for statewide offices (other than the Superintendent of Public Instruction), for the state board of equalization, and the legislature.

    Any constitutional provisions with regard to congressional elections are void. But the legislature is free to provide for Top 2 Open Primary for congressional elections, as they have done in Elections Code 359.5(a).

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