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Legislature vs. The People?

HandelontheLaw.com Staff Writer

Monday, July 06, 2015



Legislature vs. The People?
Gerrymanding

A U. S. Supreme Court case turning on the U. S. Constitution’s meaning of “legislature” may doom Arizona’s and California’s independent redistricting commissions and significantly affect similar commissions in Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Jersey, New York, Ohio and Washington.

First, a brief history:
- Article I, §3, Clauses 1 & 2 of the U. S. Constitution provide in part that U. S. senators are elected by state legislatures;
- the “Election Clause” also empowers state LEGISLATURES to set “the times, places and manners of holding elections for senators and representatives”; however, the Clause also empowers Congress to change those plans;
- after numerous calls for election reform, the 17th Amendment, establishing the election of U. S. senators by the people of the states, was adopted in 1913;
- 2 U.S.C. § 2a(c) requires states to redraw congressional and state legislative district maps to accommodate population changes/shifts after each once-per-decade census.

Are you still with me? OK. Widespread gerrymandering ensued. You will recall that “gerrymandering” is manipulation of electoral boundaries to create an advantage for an incumbent, political party and/or class. By redrawing voting districts, a political party can pack “unfriendly” voters into districts the opposition will already win and reduce the number of “unfriendly” voters in districts the party wishes to win.

Fed up with gerrymandering, Arizona voters created an independent redistricting commission in 2000. It is a 5-member commission: 2 Republicans and 2 Democrats chosen by legislative leaders from a list composed by Arizona’s Commission on Appellate Court Appointments; a politically independent chairman chosen by the other 4 commission members. This voter-approved commission removes redistricting from the state legislature’s hot little hands.

The commission’s first redistricting map made Arizona Republicans happy but Arizona Democrats unhappy; the Democrats sued but lost. The commission’s 2nd redistricting map, drawn after the 2010 census, had the opposite effect: unhappy Arizona Republicans; happy Arizona Democrats. The Republicans sued. The Republican suit is the current case.

The two issues before the Court are:
- whether 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;
- whether the Arizona Legislature has standing to bring this suit.

After the March 2, 2015 argument, the life or death of Arizona’s redistricting commission apparently turns on the Constitutional meaning of “LEGISLATURE.” Does “legislature” exclusively mean a state’s representative body that writes its laws (which would doom the voter-created commission and place redistricting back in the state legislature’s hot little hands)? Does “legislature” mean “the legislative process” (allowing whoever was assigned by a state to pass laws, which would save the redistricting commission)?

Oddly enough, California Republicans are now fighting Arizona Republicans in this case. Why? Because the death of California’s independent redistricting commission would mean that California’s heavily Democratic legislature would redraw the district maps. Consequently 3 Republican former governors of California filed amici curiae briefs defending voter-created redistricting commissions!

The Supreme Court’s decision is due in July 2015.


By Kathy Catanzarite


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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