‘Legislature' Doesn't Mean ‘Legislature,' So What Does It Mean, Justices Ponder

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By Kimberly Robinson

March 2 — Did the Constitution's drafters mean something other than a state's “legislature” when they granted authority over federal election regulations specifically to “the legislature”? Advocates put this deceptively easy question to the U.S. Supreme Court justices during oral arguments March 2.

The case—which pitted two former solicitors general against one another—focused on a voter initiative passed in 2000 that took the redistricting process out of the hands of the Arizona legislature, and put it with an independent redistricting commission.

Representing the Arizona State Legislature, Paul Clement of Bancroft PLLC, Washington, began simply enough: Of course “the legislature” means only “the legislature.”

But after repeated hypotheticals and numerous concessions, Justice Elena Kagan said Clement was “miles away” from that modest argument.

By the end of the session, it appeared that most justices were struggling with how involved the legislature has to be in redistricting for the process to withstand constitutional scrutiny.

How the justices ultimately come down on this issue could cast doubt on other election laws—like recently enacted voter ID laws—that were passed through the disputed initiative method. That process allows the people of a state to enact statutes or constitutional provisions by ballot measure.

The decision could also stymie attempts to curb political gerrymandering, where the majority in the legislature draws district lines to their party's advantage. According to an amicus brief filing in the case, several states have recently created independent commissions to bypass partisan legislatures.

‘Bloody Murder!'

Arguing for the Arizona Independent Redistricting Commission, Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, acknowledged that the Constitution's elections clause, at U.S. Const. art. I, §4, gives the authority to enact “time, place and manner” restrictions for federal elections with “the legislature” of the state.

But “the legislature” in the elections clause is defined by the state, Waxman said. In Arizona, “the legislature” includes not only the legislative body, but also the people through the initiative process, he argued.

In its brief, the Independent Redistricting Commission notes that the initiative process has been reserved to the people in the state's constitution since its founding.

Waxman said that the whole point of allowing states to regulate federal elections in the first place was to address federalism concerns. You can bet that the anti-Federalists among the Founding Fathers would have been “screaming bloody murder” if the Constitution really said that the states couldn't “choose to allocate their legislative power as they wanted,” he said.

17th Amendment

In other places in the Constitution, the use of the term “the legislature” means only the legislative body, Justice Anthony M. Kennedy said.

For example, the Constitution originally vested the power to elect Senators with the legislature, Justice Antonin Scalia said. While many wanted that changed so that Senators were elected by popular vote, it took a constitutional amendment to make that happen, he noted.

That history seems to work “very much against you,” Kennedy told Waxman.

Originalist Purity

But Justice Sonia Sotomayor said that the court itself “made it very clear” in both Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), and Smiley v. Holm, 285 U.S. 355 (1932), that the term “the legislature” in the elections clause includes not only the legislative body, but also the “legislative process.”

In those cases the court rejected the idea that the legislature was the only entity that could participate in the redistricting process, blessing participation by the governor via veto and the public via referendum.

Those cases simply recognize that the state's ordinary legislative restrictions can be used in redistricting, Clement responded. But the state can't make up a whole new, separate set of rules for redistricting that completely cut the legislature out of the process, he said.

Well, what about judicial redistricting? Kennedy wanted to know. Aren't there situations where a court can establish redistricting maps?

It “seems to me that that's as much of a displacement as what you're talking about here,” Kennedy said.

Clement responded that if a redistricting plan is struck down and there isn't sufficient time to resubmit it to the legislature before an election, then yes, a court can enact a redistricting plan.

But if there is sufficient time before an election, the court must allow the legislature to have another crack at it “because it's their primary task,” Clement said.

That “suggests a very pure rule,” that “legislature” means “legislature,” Kagan said. “But you've made many, many exemptions to that over the course of” this argument, so “the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?”

Clement hinted that is was really a matter of degrees.

The problem here is not “that somebody else got into the legislature's lane and purported to do something about elections. Our problem is once they got in that lane, they decided to wrest the legislature from that process entirely on a permanent basis.”

Clement noted that even in Hildebrant and Smiley, the legislature had a major role to play in the redistricting process, even if others had a cameo part.

Several justices then posed detailed hypotheticals with varying degrees of legislative intervention. Are we going to have to look at these case-by-case, Kagan wanted to know.

Clement acknowledged that some of the hypotheticals were close calls and posed hard questions.

But “there's no hard question here” Clement said. “This isn't any of your hypotheticals. If the Election Clause means anything, it means that you can't completely cut out of the process the State legislature entirely on a permanent basis.”

To contact the reporter on this story: Kimberly Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Full text at http://pub.bna.com/lw/AZLegTranscript.pdf.


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