[S]upporters of the commission warn the Court that, if voters aren’t allowed to hand responsibility for redistricting over to independent commissions like the ones in Arizona and California, there will be no real way to combat political gerrymandering, which results in “partisanship and dysfunction” in Congress.Obviously, there's another side to that. The "real way to combat political gerrymandering" could be the way provided for in the text of the Constitution: the legislative process.
March 2, 2015
"Let’s talk about today’s argument in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English."
Amy Howe has a readable summary of the complicated problem of independent redistricting commissions and the Constitution's Elections Clause("Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof"). Howe's penultimate sentence:
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"If you're not cheating, you're not trying" is pretty plain English.
Making courts a referee of political fairness within State redistricting sounds so easy. But even in the NBA the referees still give calls to the Super Stars every time.
Way down South we can never re-district any thing without a Federal Judge.
I like to think of "gerrymandering" as a sexual term.
Example: "I gerrymandered that ass."
Maybe that example is not enough of an explanation.
I am Laslo.
But we all know Plain English is boring. And as we all know, boring is bad. Leave it to AA's favorite Justice and his fellow libs to make an easy case less boring. Active liberty is the liberty to ignore Plain English. There is no Plain English requirement in the Constitution, after all.
The legislative process is what gave us Gerrymandering.
Plain English - is that a movement against Spanish as a second language or what?
Partisanship? You don't want a monolithic state, do you? Outlawing political parties is a necessary step towards totalitarianism. People have partisan differences. Government should reflect that. If people had no differences of opinion based on geography you wouldn't need 435 congressional districts.
The "independent" commissions, at least in Iowa where I served, are filled with with progressive wonks.
I hesitate to comment on a case when I haven't read the briefs, but I do have something to contribute. I wrote a piece a few years ago that was quite receptive to the notion. I pointed out that the Constitution sometimes refers generically to the states (Article I § 10, for example), and sometimes to particular state instrumentalities (Article I § 2, for example). Thus, I said, we should take those assignments seriously: If Article I § 2 authorizes and requires "the executive authority ... [of a state to] issue writs of election to fill such vacancies" as arise in that state's House delegation, no state may assign that function to, say, the Chief Justice of its Supreme Court. "Executive authority" means "executive authority."
For the same reason, I suggested, Article V does not permit a governor to veto any action of a state legislature pursuant to Article V. If Article V authorizes and empowers "the legislatures of three fourths of the several states" to affirm a Constitutional amendment, that assignment should be taken seriously, and no state may interpose the veto of a governor in that act. The same thing would have applied when the legislatures appointed federal Senators (Article I § 3) prior to the ratification of the Seventeenth Amendment. When the legislature acts on these powers, its power and duty comes from the federal constitution, and acts outside of its ordinary state-law functions and restraints, and it neither requires any warrant to act in state law nor is bound by any restriction in state law.
So that's my background in this area. My doubts about this case are largely because I'm not sure that state legislatures act pursuant to the Elections clause when they district. Setting district boundaries is not setting "times" of elections, nor even "place" of elections ("place" meant then and means now the location of the voting). Is it a regulation of the "manner"? I am doubtful of that.
The entire US is a gerrymandered district. Obama gets 53% of the vote, the other guy gets 47%, and Obama gets 100% of presidential power. Obama then imposes the policy preferences of the 53% on the powerless 47%.
Terry said...
"The entire US is a gerrymandered district. Obama gets 53% of the vote, the other guy gets 47%, and Obama gets 100% of presidential power. Obama then imposes the policy preferences of the 53% on the powerless 47%."
What percentage of the population does the U.S. Senate represent? We aren't a democracy but a federal republic. "Gerrymandering" is a concern in the House because it is supposed to be the nation in miniature; it is the democratic organ of government. But the President is not elected by the people at all, and the Senate is composed of representatives of the states, yes elected yon this last century by the people of those states, but divided by state.
Congress delegates its authority all the time. No one takes the Constitution seriously, least of all the Supreme Court. The whole point of creating administrative agencies was to have technocrats save us from the legislative process. Why should Congress get to do it but not Arizona?
"Unknown" is correct. And being a "Progressive wonks" is also a political party, even if they believe themselves to be above "politics."
Fish don't realize water is wet, etc.
mccullough said...
"Congress delegates its authority all the time. No one takes the Constitution seriously, least of all the Supreme Court. The whole point of creating administrative agencies was to have technocrats save us from the legislative process. Why should Congress get to do it but not Arizona?"
The question here is not whether the Arizona legislature could delegate its authority but whether it may be divested of that authority by an ballot initiative pursuant to state law.
"assign that function to, say, the Chief Justice of its Supreme Court. "Executive authority" means "executive authority."
I didn't get much sleep last night, so what am I missing here? Since when has a judge been part of the executive branch?
Simon,
Good point. The Arizona Constitution allows for referenda, and this was passed pursuant to that authority.
Since the Supreme Court already said that the Republican form of government clause is not justiciable, the state already has a leg up in this case.
Since government by referendum is not going to be stopped by the Court, then the Constitution grants Congress the power to alter the times, places, and manner that states have set. Maybe Congress should step in here and exercise its power to ensure a republican form of government and then ensure the state legislature chooses the time place and manner
Think said...
"Since when has a judge been part of the executive branch?"
It isn't. That's the point: When the federal Constitution says that a state may not do X, we know that no state may have a law or constitutional provision doing X. When the federal Constitution says that a state's "executive authority" will do Y, we know that no state may have a law or constitutional provision that says that a judge, or the speaker of the house, or whatever, name a non-executive officer, will do Y rather than the executive. So it seems to me that by parity of reasoning, when the federal constitution says that a state's legislature will do Z, no state may have a law or constitutional provision that says that the governor, or a state judge, or whatever, name a non-legislative officer, will do Z rather than the legislature.
If the federal constitution said that the state legislature shall set district boundaries, I would agree that the ballot initiative were invalid. If it said that and the question was, as mccullough suggests, whether the legislature could delegate that authority, I would immediately think of Nixon v. United States and be uncertain. But in this case, the federal constitution says that state legislatures will prescribe the "times, places and manner of holding elections," and it's just not clear to me that districting falls within that, and if the elections clause is not the fons et origo of the legislature's authority to district, its exclusivity is unavailing.
was invalid, excuse me.
mccullough said...
"Since government by referendum is not going to be stopped by the Court, then the Constitution grants Congress the power to alter the times, places, and manner that states have set. Maybe Congress should step in here and exercise its power to ensure a republican form of government and then ensure the state legislature chooses the time place and manner"
Well, but I'm still stuck on the threshold question: Is districting a part of the regulation of times, places, and manners? If it isn't, then Congress has no power to exercise, any more than the state legislature has warrant to claim exclusive authority. If it is, of what is it a regulation, the times of elections, the places of elections, or the manner of elections? A lot of the commentary simply takes this point for granted, but for me that's the threshold question.
The "independent" commissions, at least in Iowa where I served, are filled with with progressive wonks.
True story. In Minnesota we had a “tripartisan” commission that was set up to investigate complaints made about candidates in the area of election law. The commission was made up of one Democrat, one Republican and one member of the “Independence Party” (Jesse Ventura’s party which used to have major party status). There was a complaint made against the 2000 Republican Senate candidate for his campaign’s use of a news article in a campaign flier. The commission that was chosen to investigate him consisted of a Democrat, the Republican he had beaten in the primary and the Independence Party candidate he had beaten in the general election in 1994.
Simon- See what lack of sleep will do? I completely skipped the "no" in "...no state may assign..."
These redistricting commissions could be treated like the Base Realignment and Closure commissions for the military. After the commission has made its decision, the legislature votes it up or down with no chance to modify it one way or the other. That keeps the final decision making in the legislature.
Of course, if the legislative process is gerrymandered, it becomes impossible to fix by the legislative process.
She wrote "Only one other state uses a commission similar to Arizona’s for redistricting. But it’s a big one – California – and the commission there has been widely regarded as successful in increasing competition in elections and reducing partisanship."
Bullshit. The thing the CA commission is most know for is being gamed by the Democrats to put in a strongly pro-Democrat gerrymander.
That sort of casual dishonesty is why I don't really trust anything I read on ScotusBlog.
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