Thursday, October 2, 2014

ANALYSIS: U.S. Supreme Court's Decision To Hear Arizona Redistricting Case, Most Likely In January

(Arizona attorney Paul Weich contributed in the preparation of this report.)

The United States Supreme Court announced this morning that it will take up the Arizona Legislature's appeal to Arizona's redistricting process (the Arizona Independent Redistricting Commission) and to the most recent redistricting plan.  The Legislature is arguing that Arizona voters unconstitutionally removed the redistricting process from the legislators when Proposition 106 was passed in 2000.

The case will likely be argued this coming January.  There are no stays in place, so this does not effect the district boundaries (either Congressional or legislative) for the upcoming election.

Interestingly, there is another appeal to Arizona's redistricting that the U.S. Supreme Court Justices will be considering within the next couple of months.  Harris v. AIRC directly challenges the results of the most recent redistricting. (For more details, see Arizona Eagletarian coverage by Steve Muratore.)

(It is possible that the Court might peek ahead and hold off on calendaring the Legislature's appeal so that the two might be argued together.)

Well-known election law Professor Rick Hasen (University of California-Irvine's Law School) expressed some surprise at this morning's decision to hear the Arizona Legislature's appeal, saying he had expected the Court to "summarily affirm" the 9th Circuit's decision:
But today’s Supreme Court grants to hear two new election cases fit into the category of petitions to move the law in more conservative directions. In the Arizona State Legislature case, the Court has the potential to prevent the increasing use of citizen commissions to decide congressional redistricting, taking the issue out of the hands of self-interested legislatures. Here is how the Court phrased the issue in the Arizona redistricting case:...
The key question is whether the state “Legislature’s” power under the elections clause to set the manner for congressional elections includes the power for state voters to set those rules by initiative. It seems to me the matter is pretty settled that the answer is yes (for reasons given in my Hastings Constitutional Law Quarterly article: When ‘Legislature’ May Mean More than ‘Legislature’: Initiated Electoral College Reform and the Ghost of Bush v. Gore).  But maybe the issue is to be reopened? Perhaps some Justices are interested in a more textualist reading of “Legislature,” even if it is at odds with earlier precedent.....  (more analysis at Election Law Blog)
Obviously, if the U.S. Supreme Court declares the 2000 initiative that amended the Arizona Constitution to be unconstitutional, it would also effect other states that have adopted similar redistricting commissions by voter-approved measures.

As Prof. Hasen concludes his post, "These (including the Wisconsin case and the Florida judicial speech case) will be interesting ones to watch!"

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