Arizona Eagletarian

Arizona Eagletarian

Thursday, June 7, 2012

Redistricting -- Here we go again: AZ lege sues IRC UPDATED 10:10pm MST 6-7-12

Before the spring session ended, both chambers of the Arizona Legislature passed motions* specifically aimed at challenging the decision of voters (Prop 106, year 2000) hoping to strike down the entire concept of independent redistricting.

Today, lawyers for the GOP supermajority in each chamber filed the legal action in federal court.

The essence of the lawsuit is captured in the opening text:
The Elections Clause of the United States Constitution delegates the authority over the redistricting of congressional districts to the Legislatures of the States. Contrary to this constitutional delegation, Proposition 106 (adopted in 2000) amended the Arizona Constitution – removing that authority from the Arizona State Legislature (“Legislature”) and vesting it instead with the “Independent Redistricting Commission” (“IRC”). The Legislature brings this action requesting the Court to a) declare that Proposition 106 is unconstitutional to the extent it removes congressional redistricting authority from the Legislature, and b) enjoin the Defendants from enforcing or implementing any congressional redistricting plan from the IRC beginning the day after the 2012 congressional election is held in Arizona. Though the Legislature seeks permanent injunctive relief, it does not seek immediate relief as to the 2012 congressional election because the current IRC plan has already been certified and the
2012 election cycle is already well underway. 

It also demonstrates the fundamental hubris of these buzzards (the GOP supermajority) in declaring that THEY, the GOP supermajority, are the ones the US Constitution delegates all authority not specifically reserved to the federal government, the individual citizen be damned.

Of course, James Madison would vociferously argue that point. And he would use much of the same language that the GOP supermajority regularly uses to denigrate the federal government, claiming the tyranny of big government, for example:

All men having power ought to be distrusted to a certain degree.

There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.

Nevertheless, Arizona Independent Redistricting Commission counsel Joe Kanefield's immediate response (answer in court to the lawsuit to come in the near future) was thus:
The Arizona Constitution provides that all political power is inherent in the people and the people are provided the same lawmaking power and authority enjoyed by the Legislature. The U.S. Supreme Court long ago recognized this joint legislative authority and refused to draw a distinction between the people and the legislature under the Election Clause. Any such challenge raised today is likely to quickly be dismissed under this longstanding precedent.
Here's the Election Clause:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

When AIRC counsel files the official response to the lawsuit, I will post it to the blog.


* journal of each chamber for May 2, 2012 included as an exhibit to the lawsuit. In the journal, the specific language of each motion is recorded and can be read therein.

UPDATE 10:10pm MST 6-7-12

The 10-page complaint filed on behalf of House Speaker Andy Tobin and Senate President Steve Pierce asks for relief as follows:

An actual controversy exists within this Court’s jurisdiction that would be resolved by a declaration of the rights and other legal relations of the parties in this action – namely, that Prop. 106 violates the Elections Clause of the United States Constitution.
The authority to prescribe the times, places, and manner of congressional elections arises exclusively under the Elections Clause of the United States Constitution. The States do not have the inherent authority to regulate federal elections. 
The Constitution delegates and conveys the authority to prescribe the times, places, and manner of congressional elections only to “the Legislature” of “each state.” U.S. Const. art. I, § 4, cl. 1. This delegation is a broad grant of power to the Legislature to prescribe the means by which congressional elections are held.

The word “Legislature” in the Elections Clause means the representative body which makes the laws of the people.
No State can constitutionally divest its Legislature entirely of the redistricting authority conveyed by Article I, Section 4.

Yet Prop. 106 removes entirely the constitutionally-delegated authority over prescribing the boundaries of congressional districts from the Arizona Legislature. In so doing, Prop. 106 conflicts directly with the United States Constitution and is therefore preempted, null and void.
Plaintiff is therefore entitled to judgment declaring that the provisions of Proposition 106 concerning congressional redistricting are null and void.

The Legislature respectfully requests that the Court award it the following relief against all Defendants by:
A. Declaring that Proposition 106 violates the Elections Clause of the United States Constitution insofar as it removes the authority to prescribe the times, places, and manner of congressional elections from the Arizona Legislature, and therefore is preempted, null and void;
B. Enjoining Defendants and each of them permanently from adopting, implementing or enforcing any congressional map created under Proposition 106 beginning the day after the 2012 congressional election in Arizona, and
C. Awarding Plaintiff such other relief as is just, proper, or equitable under the facts and circumstances of this case.

Now, I ask you, is this NOT the height of hubris?

Not one place in this lawsuit is there ANY citation of any case law showing prior court consideration of this question or any court having set a direct, indirect or parallel precedent whereby any provision in the U.S. Constitution delegating any duty, responsibility, authority or privilege to a state legislature must ONLY be handled by the officially convened legislature as opposed to by direct decision of the citizenry/electorate by ballot measure.

Not ONE citation of case law. None. Zilch. Zip. Nada. No case law discussing the definition of "Legislature." And really, set aside the underlying question of what Tobin and Pierce are really wanting to accomplish by getting redistricting authority back and the whole lawsuit turns on what the definition is for this one word.

Stepping back to get some perspective, the entire lawsuit simply says, essentially, we don't like it that the PEOPLE of Arizona have usurped OUR authority. Heaven forbid they suggest that the sovereignty belongs to the voter. If the electorate has delegated its public policy setting authority to the legislature, can the electorate NOT take back that authority?

The bottom line question that Arizonans need to ask, and demand that Andy Tobin and Steve Pierce answer is, what stake do YOU have -- as Arizona lawmakers, in where the lines for Congressional districts are drawn?

What is it that I am missing? I could see members of the Arizona Legislature being concerned about where the legislative district lines are drawn. That question answers itself intuitively. But that's not what this lawsuit is about.

There is no indication in this lawsuit of what Tobin and Pierce feel that the People of Arizona took away from them by removal of redistricting the Congressional lines.

Do they want the power to command Arizona's Congressional delegation be obligated to them? Other than that, what could it be?


  1. Steve,

    Is this June 7 report still up to date? I've been traveling and not keeping up. However, I seem to recall that the Leg dropped or put the law suit on hold some how.



  2. Thanks for the question, Pete. This lawsuit, by which the GOP supermajority in the Arizona Legislature seeks to declare that the IRC is completely unconstitutional (according to the US Constitution) is still pending. The AIRC, to my knowledge has not yet filed its response in court.

    The Republican/tea party challenge to the legislative map, a separate lawsuit, not having been brought by the legislature, previously had asked the court to block use of the AIRC legislative map for this year's election, was updated to specify that those plaintiffs will drop their request to block use for the 2012 election.

    Obviously, it's easy to get which lawsuit is asking the court to do what mixed up. I have been remiss in keeping the blog updated and apologize for that.