Is Arizona’s use of a commission to adopt congressional districts permissible under the Constitution and 2 U.S.C. § 2a(c), and does the Arizona Legislature have standing to bring suit to challenge such a commission?
In 2000, Arizona passed Proposition 106, which formed the Arizona Independent Redistricting Commission (“AIRC”). The AIRC’s purpose is to manage congressional districts. Prior to the referendum, the Arizona State Legislature (“Legislature”) had the power to determine congressional districts through the traditional legislative process. In 2012, the Legislature filed suit in the U.S. District of Arizona to challenge the legitimacy of the AIRC. A three-judge district court dismissed the suit, holding that the AIRC could remain in charge of redrawing congressional districts. The Legislature appealed to the U.S. Supreme Court to determine whether the Elections Clause and 2 U.S.C. § 2a(c) permit Arizona to use the AIRC to redraw congressional districts.
Questions as Framed for the Court by the Parties
- Do the Elections Clause of the United States Constitution and 2 U.S.C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts?
- Does the Arizona Legislature have standing to bring this suit?
In Arizona prior to 2000, the Arizona State Legislature (“Legislature”) had the authority to alter and decide congressional districts through the ordinary legislative process. Meaning, any proposals to alter the congressional districts were introduced as a bill that, if approved, would be sent to the governor to veto or approve. The Legislature also possessed the authority to override a gubernatorial veto by a two-thirds vote in each chamber.
In 2000, however, the citizens of Arizona passed Proposition 106, which amended the state constitution to take the power of redistricting away from the Legislature and grant it to the Arizona Independent Redistricting Commission (“AIRC”). The AIRC’s sole purpose is to manage congressional districts to ensure compliance with the U.S. Constitution and the Voting Rights Act, as well as to consider geographic characteristics and community interests. The AIRC is comprised of five members who are selected every ten years from a pool of twenty-five individuals selected by the Arizona Commission of Appellate Court Appointments.
The pool is made up of ten individuals from each of the two largest political parties in Arizona, and five who are not registered to either of the major parties. Each chamber’s highest-ranking officer and minority leader then each choose one member from the pool. To complete the selection process, the four officers vote together to select a chairman from the five individuals not registered to either major party. Once elected, the AIRC members may not be removed during their ten-year term, except for by cause. Beyond participating in the selection of members, the Legislature does not participate in redistricting measures and neither the governor nor the Legislature may modify or override the AIRC’s redistricting decisions. The AIRC drafts a proposed congressional map, which is then subject to public comment before the AIRC establishes the final map and certifies it to the Arizona Secretary of State.
Soon after the AIRC submitted its congressional redistricting maps in 2012, the Legislature voted to sue the AIRC in order to regain control of redistricting. The U.S. District Court for the District of Arizona, sitting as a three-judge panel, dismissed the case and held that vesting the power to conduct congressional redistricting in the AIRC did not violate the Election Clause. The Legislature appealed to the U.S. Supreme Court to determine whether the U.S. Constitution and 2 U.S.C. § 2a(c) permit Arizona to use a commission to adopt congressional districts. The Court will also determine if the Legislature has standing to bring suit on this topic.
The Court will consider whether redistricting authority can be delegated to the AIRC pursuant to the Elections Clause and 2 U.S.C. § 2a(c) (“§ 2a(c)”). However, the Court must first decide whether the Legislature has standing to bring suit against the AIRC. The Legislature contends that it has standing to sue because it has suffered a particularized injury in fact, which is traceable to the AIRC’s exercise of redistricting authority and can be remedied by the Court. Conversely, the AIRC argues that the Legislature’s alleged injury is a nonjusticiable question.
Assuming the Legislature has standing, the Court will decide whether the AIRC can exercise redistricting authority. Legislature argues that the Elections Clause explicitly vests redistricting power in state legislatures alone as part of their authority over the manner of elections. Furthermore, the Legislature maintains that § 2a(c) does not authorize the AIRC to exercise redistricting power. The AIRC argues that the Elections Clause’s language permits state citizens to alter the manner of elections through initiative. Likewise, the AIRC contends that Congress took steps to protect this right through § 2a(c).
DOES THE LEGISLATURE HAVE STANDING TO BRING SUIT AGAINST THE AIRC?
The Legislature contends that it satisfies the three prongs of the Court’s Article III standing analysis: injury in fact, causation, and redressability. First, the Legislature argues that it suffered an injury in fact because it has been divested of its redistricting power. The Legislature maintains that the Elections Clause explicitly grants each state legislature redistricting power as a constitutional right. Accordingly, the Legislature argues that deprivation of its redistricting power is a concrete and particular injury to its constitutionally protected powers. Second, the Legislature contends that the AIRC caused the Legislature’s injury in fact by “exercising [the Legislature’s] redistricting authority.” The Legislature explains that the AIRC’s only purpose is to redistrict; therefore, the AIRC’s exercise of redistricting authority directly injures the Legislature. Third, the Legislature contends that its injury will be redressed if the Court holds that the AIRC cannot exercise redistricting authority. The Legislature notes that the Court has granted standing to litigants, such as school boards, with similar institutional injuries. The Legislature concedes that its standing would be questionable had the Legislature created the AIRC. In that case, the Legislature could rectify its “injury” by eliminating the AIRC. However, the Legislature argues that Proposition 106, a popular referendum, deprived it of its federal constitutional powers. Hence, the Legislature maintains that its injury was not self-inflicted, and it has no means of self-help.
However, the AIRC counters that the Legislature does not have standing because its challenge presents a nonjusticiable question of the delegation of lawmaking authority in Arizona. The AIRC explains that Arizona’s Constitution gives Arizona citizens the right to amend the state’s constitution and thereby allocate legislative power at their discretion. In this case, the AIRC argues that the citizens saw fit to grant redistricting power to the AIRC. Even if the delegation issue was justiciable, the AIRC argues that the Legislature has failed to raise a “[c]oncrete [a]nd [p]articularized [i]njury.” To show a particularized injury, the AIRC asserts that the Legislature at least needs to demonstrate that it was prevented from enacting a piece of legislation because of Proposition 106. The AIRC explains that the Legislature has not “point[ed] to any specific legislative act that would have taken effect but for Proposition 106.” The AIRC maintains that the Legislature’s loss of redistricting power is a generalized attack on the legality of Proposition 106. Accordingly, the AIRC contends that the Legislature’s injury is “hypothetical.” The AIRC also suggests that the Legislature has means of self-help, such as submitting a constitutional amendment to the citizens to regain its redistricting authority.
CAN REDISTRICTING POWER BE DELEGATED TO THE AIRC?
Assuming that it has standing to sue, the Legislature contends that redistricting authority cannot be delegated to the AIRC pursuant to the Elections Clause. The Legislature argues that the text of the Elections Clause unambiguously vests each state “legislature” with the sole authority to regulate the manner of congressional elections in its state, which includes redistricting. The Legislature asserts that the Framers appreciated the difference between a “general delegation” of authority to states and delegations made to specific bodies, such as the legislature. The Legislature maintains that this understanding is reflected in the varied delegations of power made in the text of the Constitution. Hence, the Legislature argues that the Framers consciously vested state legislatures with authority over the manner of elections, and did so to ensure that citizens could exercise some control over how their representatives were elected. Accordingly, the Legislature maintains that the AIRC is not “the legislature” envisioned by the language of Elections Clause. The Legislature explains that the AIRC, unlike a legislative body, “has no general lawmaking power,” is comprised of unelected officials, and is largely outside the control of the Legislature itself. Although the Legislature may propose redistricting maps to the AIRC, the Legislature explains that the AIRC is under no obligation to adopt the Legislature’s proposals.
The Legislature further argues that upholding the constitutionality of the AIRC would contradict the plain meaning of the Elections Clause by permitting any entity that acts legislatively to exercise redistricting power. The Legislature argues that no court has ever upheld an allocation of redistricting power that eliminates the legislature’s role entirely. Furthermore, the Legislature contends that § 2a(c) does not authorize the AIRC to exercise redistricting power. The Legislature explains that § 2a(c) is a “gap-filling statute,” which sets default procedures “if the state legislatures could not produce a timely redistricting map . . . [after] a decennial census.” The Legislature argues that the Court has struck down most of these default procedures.
The AIRC concedes that state legislatures can exercise authority over the manner of elections. However, the AIRC maintains that the Framers granted state legislatures this authority as a means of ensuring that state citizens could “structure [elections] as they see fit.” Hence, the AIRC contends that Arizona citizens were within their rights to alter the manner of elections by delegating redistricting power to the AIRC. Contrary to the Legislature’s assertion, the AIRC argues that the Court has interpreted the term “legislature” as encompassing a broad range of functions. The AIRC contends that the term as it appears in the Elections Clause is properly understood as relating to the exercise of lawmaking authority. The AIRC argues that “[h]ow States structure that lawmaking process” is not dictated by the Elections Clause, and is left to the citizens of each state.
Furthermore, the AIRC argues that the Framers were concerned that state legislatures might exercise improper influence over the manner of elections. Accordingly, the AIRC maintains that the Elections Clause empowers Congress to create laws to protect the citizens’ right to alter the manner of elections. The AIRC argues that Congress did so in § 2a(c) by authorizing citizens to alter election law through means available under state law, including popular referendum or initiative. The AIRC explains that legislative history shows that Congress passed § 2a(c)’s predecessor, the Apportionment Act of 1911 (“Act”), to protect this right. For example, when the Act was amended, the AIRC contends that Congress retained language protecting “popular lawmaking to regulate redistricting.” The AIRC argues that § 2a(c)’s current language is traceable to the Act, because Congress has not adopted language restricting the citizens’ right to alter redistricting procedures through means established by state law. As such, the AIRC contends that § 2a(c), like the Act, authorizes citizens to alter the manner of elections through means available to them under state law.
The issues before the Supreme Court are whether use of a commission to adopt congressional districts is permissible under the U.S. Constitution and 2 U.S.C. § 2a(c), and whether the Legislature has standing to bring suit to challenge the existence of such a commission. The Legislature argues that the AIRC violates the Legislature’s constitutionally delegated power to control congressional redistricting. Conversely, the AIRC contends that the founders of the Constitution (“Framers”) intended for the U.S. Constitution’s grant of authority over the “times, places, and manner” of congressional elections as flexible enough to allow a commission. The outcome of this case could impact the way in which courts interpret the Framers’ intended scope of state legislatures’ power, in addition to affecting efforts to prevent politicized or unfair congressional district maps.
The AIRC and supporting amici contend that barring redistricting commissions like the AIRC would hinder election reform efforts. Several non-profit organizations, including the Campaign Legal Center (“CLC”), maintain that gerrymandering is destructive to democracy and can increase political polarization. They further argue that gerrymandering is best prevented by an independent commission, such as the AIRC, because the people of Arizona themselves chose the manner in which congressional districts would be adopted. The United States similarly contends that the AIRC represents the will of the state because the AIRC came into existence through a referendum, making the AIRC the most “natural, legitimate” body to create the congressional district map.
Conversely, the Legislature and supporting amici argue that delegating the power over redistricting to an independent commission would dampen efforts to ensure fair elections and prevent gerrymandering. The National Conference of State Legislatures (“NCSL”) contends that legislatures are best positioned to defend against the conflicts of interest inherent to the process of redistricting, arguing that elected representatives possess “political judgment” that appointed officials do not. The Legislature similarly maintains that legislatures should control congressional redistricting because the political process allows citizens to have a voice by being able to hold their representatives accountable, and by virtue of having directly selected the representatives themselves.
THE DEMOCRATIC PROCESS
The Legislature contends that allowing redistricting commissions like the AIRC would violate the democratic process envisioned by the Framers by impermissibly divesting the Legislature of the power to determine the “times, places, and manner” of congressional elections. The Legislature argues that since the Framers “lauded representative democracy and viewed it as an important improve over direct democracy,” the Framers clearly did not wish for the United States to fall into a direct democracy. Additionally, amicus the National Conference of State Legislatures (“NCSL”) distinguishes the AIRC from commissions in other states because the process of adopting districts leaves no role for the Legislature except helping to select AIRC members. The NCSL further contends that the AIRC is worse than California’s similar commission because the Arizona Legislature can only select AIRC members from a pre-selected pool, unlike the California Legislature who can choose whomever they desire to be on the commission.
Conversely, the AIRC and supporting amici maintain that delegating the power over redistricting would not be contrary to the Framers’ desired democratic process. The AIRC argues that “whereas the Framers designed Congress as a representative assembly to avoid the impracticalities of direct democracy on so large a scale, they did not require that the method of electing Representatives to be shielded from popular influence.” The CLC and other non-partisan organizations further argue that returning the power to adopt congressional districts to the Legislature would undermine the democratic process because increasingly partisan state legislatures cannot be trusted to remain impartial when drawing district maps, which would prevent the public from effectively holding their representatives accountable.
The Court will decide whether the AIRC may constitutionally exercise redistricting authority. Assuming it has standing, the Legislature contends that neither the Elections Clause nor § 2a(c) authorize the AIRC to exercise redistricting authority. The AIRC counters that the Elections Clause authorizes state citizens to alter the manner of elections through initiative, and that Congress chose to codify this right in § 2a(c). Additionally, the Legislature and supporting amici contend that divesting the power to adopt congressional districts runs contrary to the Framers’ intent, and will open the door to gerrymandering. The AIRC and supporting amici, however, maintain that delegating authority to adopt congressional districts is within the Framers’ intent, and that an independent commission is more effective than the state legislature in preventing gerrymandering. Ultimately, the Court’s decision will affect the scope of state legislatures’ authority over adopting congressional districts and election reform initiatives.
- Irin Camron & Ned Resnikoff: Supreme Court’s New Session Could Bring Decisions on Huge Issues, MSNBC.com (Oct. 7, 2014).
- Howard Fischer: Commission Urges Supreme Court to Preserve Arizona Legislative Boundaries, Arizona Capitol Times (Nov. 18, 2014).
- David G. Savage: Supreme Court to Review Independent Redistricting Commissions, LA Times (Oct. 2, 2014).