‘Legislature' Doesn't Just Mean ‘Legislature;' High Court Says Yes to Gerrymandering Fix

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By Kimberly Robinson

June 29 — States can use an independent redistricting commission to draw redistricting maps, the U.S. Supreme Court said June 29.

In a divided decision, the court said redistricting is a “legislative function” that can be accomplished through any mechanism authorized by the state, including—as here—citizen initiative.

The Arizona initiative—taking redistricting out of the hands of the legislature and putting it with an independent commission—was aimed at curbing political gerrymandering, according to Justice Ruth Bader Ginsburg, who wrote for the court's 5-4 majority.

Writing for the four dissenters, Chief Justice John G. Roberts Jr. said, “No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution.”

Although the issue is not a clear win for Democrats or Republicans—as political gerrymandering can play out to the benefit of either party—the court nevertheless split along ideological lines.

The partisan split in this case “concerns the proper method of constitutional interpretation, rather than the actual outcome of any election,” an attorney familiar with the case told Bloomberg BNA.

‘The Legislature.'

Former Solicitor General Seth P. Waxman, now of Wilmer Cutler Pickering Hale & Dorr LLP, Washington, said there is no Democratic or Republican reason to vote a particular way in this case.

All you have to do is look at California and Arizona—the two states that have adopted these independent commissions—to see that, he told Bloomberg BNA June 29.

The commission in California was a sustained effort on the part of Republicans, who are in the minority in the California legislature, he said. But the Arizona legislature is largely controlled by Republicans, Waxman noted.

So a decision allowing these commissions could hurt or harm both major political parties, he said.

Waxman argued on behalf of the independent commission. Paul Clement of Bancroft PLLC, Washington, who argued for the state legislature, did not respond to a request for comment June 29.

Still, the court broke down along familiar lines, with frequent swing vote Justice Anthony M. Kennedy joining the court's liberal bloc—Justices Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan—leaving the more conservative justices—Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.—in the minority.

“The case resulted in a 5-4 breakdown because it ultimately turned on the Justices' respective approaches to constitutional interpretation,” Michael T. Morley of Coolidge-Reagan Foundation, Washington, told Bloomberg BNA.

Morley filed an amicus brief in support of the state legislature challenging the use of the independent commissions.

In this case, the justices were interpreting the Constitution's elections clause, at U.S. Const. Art. I, §4, which grants authority over federal election regulations specifically to “the legislature.”

All were interested in the plain meaning of the term “Legislature,” Waxman said.

But the four most conservative justices wanted to give the term its narrowest possible reading, he said.

Roberts said the term “the Legislature” can only mean the state's representative body—an interpretation Ginsburg called “wooden.”

On the other hand, the court's majority said the term could include any of the state's mechanisms for undertaking lawmaking, including citizen initiatives. That process allows the people of a state to enact statutes or constitutional provisions by ballot measure.

Ginsburg acknowledged that the “Framers may not have imagined the modern initiative process.”

“But the invention of the initiative was in full harmony with the Constitution's conception of the people as the font of governmental power,” she said.

Chumps!

The liberal justices, joined by Kennedy, were “persuaded by the fact that independent commissions appear attractive as a policy matter, and were therefore willing to accord the term ‘legislature' as it appears in the Elections Clause a unique and unusual definition,” Morley said.

Ginsburg said the meaning of the term depends on what function “the Legislature” is exercising. For example, she said the power to choose U.S. Senators was an “electoral” function that belonged exclusively to the representative body prior to the 17th Amendment.

Redistricting is a “legislative” function, she said, which must be “performed in accordance with the State's prescriptions for lawmaking.” In Arizona, that includes the initiative process.

In contrast, the conservative justices emphasized “the meaning of the term as it appeared in other places throughout the [Constitution],” Morley said.

Roberts noted the “decades-long campaign” to adopt the 17th Amendment, which “transferred power to choose United States Senators from ‘the Legislature' of each State, Art. I, §3, to ‘the people thereof.' ”

“What chumps!” Roberts concluded. “Didn't they realize that all they had to do was interpret the constitutional term ‘the Legislature' to mean ‘the people'? ”

The majority performs a “magic trick” and “erase[s] the words ‘by the Legislature thereof' from the Elections Clause,” Roberts said.

What About King?

Roberts's “strong dissent” is somewhat of an anomaly given his recent decision to uphold Affordable Care Act subsidies in King v. Burwell, 2015 BL 202630 (June 25, 2015) (see related story), Waxman said.

That case involved tax subsidies available to individuals who purchase their insurance on exchanges “established by the State.”

Roberts wrote the 6–3 majority opinion finding that subsidies were available to those who purchased their heath insurance on exchanges that were established by the states or the federal government.

But the anomaly is only “superficial,” Waxman said.

In both instances, Roberts was simply trying to divine the meaning of particular phrases in context, he said.

Morley—whose law review article was cited in Roberts's dissent—said both decisions “reveal his dedication to consistently implementing his theory of interpreting legal texts, without regard to the partisan fallout.”

“In today's case, his dissent forcefully and persuasively advocated a plain-meaning interpretation of the word ‘legislature,' ” Morley said.

“His opinion in King likewise recognized the importance of a plain-meaning approach to interpreting the Affordable Care Act, but held that this approach was subject to an exception for absurd or self-defeating consequences,” Morley said.

Roberts “declined to read the Affordable Care Act in such a way that would allow the entire system that Congress created to be defeated,” he said.

“Because there was nothing absurd about construing ‘legislature' to refer solely to what most people think of as the state legislature—a multi-member body of elected representatives that periodically convenes to exercise general lawmaking authority within the state—the exception he relied upon in King did not apply here,” Morley said.

He added that “whatever one thinks of Chief Justice Roberts's opinion in King on its own, the body of his opinions reflects a clear, consistent approach to interpreting legal texts that he applies in a nonpartisan manner.”

But Rick Hasen, a professor at UC Irvine School of Law, Irvine, Calif., who holds a chair in law and political science, saw it differently.

Hasen said he thinks the two decisions show “that Chief Justice Roberts, like the rest of the Justices, is not completely consistent in application of rules related to interpretation.”

“Much depends upon what is at stake and the underlying ideological valence of the case,” Hasen told Bloomberg BNA in a June 29 e-mail.

Hands Off

Hasen and Morley also disagreed over whether the court's hands-off policy toward political gerrymandering seeped into the decision here.

In Vieth v. Jubelirer, 541 U.S. 267 (2004), the court said there were no judicially manageable standards to govern political gerrymandering challenges under the equal protection clause, and so such claims were nonjusticiable.

Morley said the Arizona redistricting case had “nothing to do with the court's general refusal to entertain political gerrymandering cases.”

Hasen, on the other hand, said “the fact that it is all but impossible to win a partisan gerrymandering case figures into the court's thinking.”

“The fact that there's no way for courts to police this directly might have made the majority more willing to let voters enact rules to police the process,” he said.

The court noted that a decision holding that legislatures could not be cut out of the redistricting process would have stymied attempts to head off partisan gerrymandering.

Waxman said he did his best to try to underscore the “civic consequences” for the justices, Waxman said. The people of the state would be incapable of allocating power in a way that took redistricting “out of the hands of a legislature that had failed, decade after decade, to deliver a fair” redistricting map, he said.

But, he said, it's impossible to tell if the court's inability to find judicially manageable standards for policing political gerrymandering influenced the justices. “It shouldn't have,” Waxman concluded.

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://www.bloomberglaw.com/public/document/Ariz_State_Legislature_v_Ariz_Indep_Redistricting_Commn_No_131314 and 83 U.S.L.W. 4633.