"... it does not (in its original formulation) permit the popular election of senators but does permit popular regulation of the election process. There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide,"
writes lawprof Richard Pildes in a NYT op-ed about the opinion in
Arizona State Legislature v. Arizona Independent Redistricting Commission.
[T]o uphold direct democracy as a constitutionally permissible tool for regulating elections, the court had to conclude that, when the Constitution uses the term “legislature,” it does not (in its original formulation) permit the popular election of senators but does permit popular regulation of the election process. There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide....
The main, and best, justification for direct democracy is precisely the need for this kind of check... on the self-interested temptations of power when legislators regulate the political process itself.... Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.
I haven't read the opinion yet, but I've long thought that direct democracy is unconstitutional, for reasons the Court disposes of in footnote 3:
The people’s sovereign right to incorporate themselves into a State’s lawmaking apparatus, by reserving for themselves the power to adopt laws and to veto measures passed by elected representatives, is one this Court has ranked a nonjusticiable political matter. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting challenge to referendum mounted under Article IV, §4’s undertaking by the United States to “guarantee to every State in th[e] Union a Republican Form of Government”). But see New York v. United States, 505 U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee Clause present nonjusticiable political questions.”).
I'll get back to you when I see how close anybody on the Supreme Court got to what I think is the answer. I hope this Pildes appetizer will tide you over.
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39 comments:
Well, the initiative and referendum were Progressive reforms back in the days so, of course, the Supremes are OK with it. This is the "Age of Progressivism" right up until bankruptcy,
The power to draw congressional districts does not cease being a power, and therefore the temptations that go with it do not disappear, just because you've taken it out of the hands of an accountable legislature and given it to an unaccountable commission.
Puerto Rico and Greece who once voted themselves sweet socialism, now prefer the old Napoleonic form of governing replacing elections with plebiscites of approval of coup D'etats.
And Russia is opening its arms to Greece as Germany refuse to pay their bills.
Pax Americana
Is over.
Frankly, I don't see how district drawing is a time, manner, or place of holding an election. So I'm not finding it that close a call.
This court is simply amazing. It truly speaks out of both ass cheeks. In CA direct democracy as in Prop 8 is a no-no. In AZ it's OK. Situationally good direct democracy as determined by our betters on the court. Incidentally whatever happened to the quaint old notion that legislatures cannot delegate or abrogate their authorities? Or bind future legislatures? Or even just a simple plain text reading of the constitution. Never has been results oriented judicial rulings been that transparently obvious. Since the court is now openly and contemptuously political the time has come for a mass impeachment and removal of these judges and the same for those on the lower courts. It's time they learned their place.
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master—that's all."
"Supreme Court"? You mean that group of clowns who last week destroyed the Rule of Law? They have declared themselves irrelevant. Neither the plain meaning of language in Legislation, nor a bastion of culture from time immemorial bear weight in their decisions.
The loudest voice on Twitter makes the laws now.
It is not "the Roberts Court." It is the "Lewis Carrol Court."
@Paul Zrimsek:The power to draw congressional districts does not cease being a power, and therefore the temptations that go with it do not disappear, just because you've taken it out of the hands of an accountable legislature and given it to an unaccountable commission.
In the two states where this is done, there is no gerrymandering, and districts follow geographical and economic reality.
Before declaring that something can't work, maybe go and look at examples.
"Every 10 years, the bipartisan Washington State Redistricting Commission is established for the purpose of redrawing legislative and congressional district boundaries. Four commissioners are appointed by the Legislature. The Commissioners appoint a fifth, non-voting, non-partisan chairperson. During the Commission’s tenure, members typically meet every second Tuesday of the month in Olympia.
When redistricting is complete—no later than June 2012—the Commission will close its doors. In 2021, a new commission will be appointed to ensure that Washington residents are fairly represented in Congress and the state Legislature."
Are there temptations for that Commission? Possibly, but it's hard to see what they are. They can't personally benefit from the redistricting, and they can't even benefit their party, since each party gets two members and if they deadlock, they deadlock, since there is no casting vote.
In general Washington's districts reflect reality-economic and geographical units, and they tend to follow county lines where possible. It's not accountable, but it certainly solves the gerrymandering problem.
Any state could do the same, unless the Supreme Court forecloses the option, but Washington's been doing it this way since 1983.
Isn't it obvious that the people who wrote the constitution were more concerned about defining the power of the federal government than the means used to select representatives?
You know, I really like redistricting commissions. And I think that gerrymandering is awful. But I think Roberts is right, here -- the constitution is what it is, and if you don't like some element of it, you need to amend it, not just declare it to say otherwise.
http://www.patheos.com/blogs/janetheactuary/2015/06/todays-recommended-reading-arizona-state-legislature-v-arizona-independent-redistricting-commission-et-al.html
Now, maybe this just means that the amendment process is too complicated, or that we, as a country, have wrongly convinced ourselves of it.
And certainly the AZ legislature is, collectively, an ass, since they could have agreed to a process of ratifying the commission, and then there wouldn't have been an issue in the first place.
Most people anchor on the "Times, Place and Manners" phrasing, but ignore the big "but" that follows: "... but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators." Congress has passed multiple acts to alter "such Regulations", most recently in the modern era, the voting Rights Act of 1965 and the congressional act of 1967.
While the Constitution doesn't explicitly mention territorial jurisdiction or districts for representatives to the House, the subsequent acts have and a closer look at those pieces of legal work need to be examines to understand this in full.
Who ever said a commission couldn't work? What I said is that it's no more likely to work than legislative redistricting-- which in many cases works as well. Examples of the temptations which can befall an "independent" commission can be found in Roberts' dissent in the Arizona case. Come to think of it, the Supreme Court itself makes a pretty good example of how politicized a supposedly non-political institution can get.
Responding to Terry, who said, "Isn't it obvious that the people who wrote the constitution were more concerned about defining the power of the federal government..." It is obvious that at the time there were two sides to the argument about limiting the power of the federal government. This argument continues to this day, but the side that wants to increase the power of the federal government has won most of the time over our history. Some times in little bits and some times in great leaps. The great leaps usually occur in blunt and emotional reactions to the issues of the times and tend to involve much contentious litigation that ends up at the Supreme Court to rescind the really dangerous ones.
This president understands that he can do much with edicts. He will be opposed and taken to court, but it takes time and the government has much ability to delay it a long time. Particularly in the current administration where honesty, transparency and ethics are bound and gagged in the trunk to be buried in dark of night.
5-to-4 divide
'Tis funny how often at least 44% of the government lawyers are wrong.
If I live in Arizona I expect I'm now entitled to the perks of being a legislator. When will my paycheck start arriving and where do I get my access card to the gym and other facilities? Who can tell me which assigned parking space is mine? And how exactly do I file for re-election? Lots and lots to learn, all of a sudden.
Terry said...
Isn't it obvious that the people who wrote the constitution were more concerned about defining the power of the federal government than the means used to select representatives?
No, that's not obvious. The Constitution is explicit that Congressmen are chosen by the people of the state, while Senators are chosen by the state legislature ( before the 17th amendment changed this ).
While you can certainly question whether they made the right call about any particular clause, there is no reason* to pretend that they didn't explicitly make such distinctions.
*Unless you are a Supreme Court Justice and such pretending is needed in order to rule the way that you really want to rule.
Ignorance is bliss, didn't they leave the qualifications to vote for congressman up to the state?
I have formally ceased to view the SC as a judicial body. It's now a legislative body.
Remember, it's a "living Constitution". Just ignore the fact that it's turning from Dr. Jekyll into Mr. Hyde. Mr. Hyde is living, too.
Independent commissions can be just as corrupted as legislative commissions. California set up an independent commission for redistricting and it was corrupted immediately.
If you really want fair redistricting, the solution is to come up with guidelines that make sense and force the redistricting to follow those guidelines. Following county lines as much as possible: good. Forcing cities into as few districts as possible: good. There are others. Of course the guidelines can be corrupted as well. Good luck!
5-to-4 divide
Anyone got an analysis of how often the four liberal judges vote as a bloc?
How does it compare to the three Conservative judges and Roberts voting together?
How often is Kennedy the deciding vote?
Terry said...
Ignorance is bliss, didn't they leave the qualifications to vote for congressman up to the state?
I don't know explicitly, but would guess that would fall under time, place, and manner.
Saying that a commission will solve gerrymandering is like saying voting makes a country a democracy. Of course it can be set up badly.
But the rules that govern a commission are easier to control than making a legislature draw reasonable districts, because it's a smaller group of people and it has only one job and no authority of its own.
It seems Washington's commission will be unaffected by this ruling, since it was established by the legislature and not through initiative.
"Anyone got an analysis of how often the four liberal judges vote as a bloc?"
100%. Next question.
It's a certainty that any supposedly non-political institution will always trend left. That is why I like gerrymandering, it gives the right a chance every now and then. If only voting were limited to private sector net taxpayers then this wouldn't be much of an issue. Speaking of direct democracy why not have the taxpayers and only net taxpayers fill out their returns which would include a line item budget of what is proposed for spending and let the taxpayers tick off what they want to pay for. If the item can't get a majority to tick off the item it doesn't get funded. People putting their money where their mouth is is as democratic as one can get.
I assume states can have as many branches of a legislature as they please. If election commission is a new third elected branch of the Arizona legislature, more power to em.
My issue might be with the way redistricting commissioners are appointed rather than elected.
this used to be a country. now it's a fucking joke.
Q: When does "the legislature" not mean the legislature?
A. When the libs on the SCOTUS decide it doesn't because the interests of the Democrat Party are not served thereby.
The Notorious RBG deconstructed the term "legislature" in the Elections Clause by distinguishing its use there from the other contexts where the same term appears in the Constitution (she says its meaning changes based on context), and by taking a functional approach ("legislature" means whatever group or entity exercises the legislative, law-making power under each state's constitution). There are enough mushy opinions from the past to support both parts of that analysis.
That seems a bit too cute by half, but frankly who cares.
I thought the standing argument was more interesting. RBG found standing -- agreeing with the Arizona Legislature, the petitioners in the case, rather than the Independent Commission (and the Solicitor General) who argued against standing. Of course, lefties don't like to close the courthouse door since they imagine that an assertive judicial branch, enforcing a living constitution, is essential to achieving what they view as a just society. Scalia and Thomas dissented on the standing issue, saying it was an affront to state sovereignty to find standing here. (RBG's rejoinder, that the supposedly affronted 'state sovereign' here (i.e., the Arizona Legislature) was the party urging the court to find standing, was a pretty good jab back.) The Arizona Constitution apparently has a provision saying that the elected Legislature lacks power to take action that would contradict a voter-adopted initiative. Suing to invalidate an initiative certainly falls into that category, and might have been a ground to find lack of standing (or lack of legal capacity to sue, or something similar along those lines). But whether the Arizona Constitution actually goes that far, I don't know. It would have been an easy ground on which to conclude that cert was improvidently granted however, since it's hard to see why the Court wanted to wade into this controversy.
Nice to see the Judge Humpty Dumpty meme taking hold. Too bad we have to live with the consequences of a lawless government. The U.S. constitution, it was nice while it lasted.
Oregon and Nebraska had direct elections of Senators before the 17th Amendment, and 10 other states had "primaries" to instruct the legislature how to vote.
You could just as easily say that only the Electoral College can choose a President and that the votes in the several states are immaterial to the result. You would be right, but just try it.
@caseym54:You could just as easily say that only the Electoral College can choose a President and that the votes in the several states are immaterial to the result. You would be right, but just try it.
It has been tried. It's happened 157 times.
"The Supreme Court has ruled that, as electors are chosen via state elections, they act as a function of the state, not the federal government. Therefore states have the right to govern electors. The constitutionality of state laws punishing electors for actually casting a faithless vote—rather than merely refusing to pledge—has never been decided by the Supreme Court."
"There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide...."
There is nothing hard about the answer, except that it is not consistent with the result that modern liberals want.
So Roberts is a constitutional literalist but a contextualist when it comes to acts of congress.
"Nice to see the Judge Humpty Dumpty meme taking hold. Too bad we have to live with the consequences of a lawless government. The U.S. Constitution, it was nice while it lasted."
There is a story, often told, that upon exiting the Constitutional Convention Benjamin Franklin was approached by a group of citizens asking what sort of government the delegates had created. His answer was: "A republic, if you can keep it."
I think here, first of all, district lines are NOT "the Times, Place and Manners" of conducting elections.
I think the constitution is silent on how Congressional district lines within a state are to be drawn. It might be considered an election regulation but it is not ine that has to be done by the legislature.
If the constitution requires a state legislature to draw lines, that would mean, that, after 1787, a state could not write into its constitution (a constitutionb was approved by the voters or by people elected to aspecial convention) anything about federal elections and especially district lines.
I am not sure that would turn out to be true.
Static Ping said...
Independent commissions can be just as corrupted as legislative commissions. California set up an independent commission for redistricting and it was corrupted immediately.
If you really want fair redistricting, the solution is to come up with guidelines that make sense and force the redistricting to follow those guidelines
This is correct, althouygh I am not sure you could come up with good guidelines.
This is yet another example of why direct democracy in the form of initiatives is a terrible idea.
The solution, though, as has been suggested is for the legislature to propose their own vote initiative and push for it to pass. A compromise would be to retain the commission but allow an up or down vote, with no changes or amendments by the legislature with no governor veto (if for no other reasons than Arizona has a long history of crackpot governors.)
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