Arizona Eagletarian

Arizona Eagletarian

Monday, September 23, 2013

More GOP Legislative Contempt for Arizona Voters...

Last Friday, attorneys acting on behalf of majority Republicans in the Arizona Legislature filed a brief asking a federal court to essentially immediately and permanently nullify the Congressional district map currently in use.
...Arizona State Legislature hereby moves this Court to preliminarily enjoin the enforcement of Article VI, part 2, section 1 of the Arizona Constitution insofar as it takes the power to establish congressional districts away from the Legislature and conveys it to the Arizona Independent Redistricting Commission; as well as the use of any federal redistricting maps created by the Commission; and additionally moves to consolidate the hearing on this motion with the trial on the merits.
You know, those dastardly Tenth Amendment Republicans* who eschew federal intervention in the affairs of the State of Arizona... except when it's convenient for them to thwart the will of the People of Arizona.

In explaining their rationale (as irrational as it may be), the GOP counsel states:
In 2000, a voter-generated referendum, Proposition 106 (hereinafter “Prop. 106”), removed the Legislature’s constitutional role in that process and granted it instead to the Arizona Independent Redistricting Commission (hereinafter “IRC”), an unelected, nonrepresentative body.
"Voter-generated referendum" is the code they want to use to hide -- or at least minimize -- the fact that it was really an actual legislative act** conducted by citizen initiative. Technically, yes, the citizens acting in a legislative capacity DID relieve the Legislature of its role in redistricting. I've been over that issue hundreds of times. Case law as cited in the AIRC briefs in this lawsuit makes it crystal clear.

By the way, it might be entirely reasonable to submit the following language to editors of every English language dictionary now in print for use as the definition of hubris.
Based on the Legislature’s likely success on the merits, as well as the likelihood of irreparable harm to the Legislature and to the public interest, this Court should preliminarily and permanently enjoin enforcement of Prop. 106 as to congressional district lines, the operation of the IRC for congressional redistricting, and the use of any congressional district maps established by the IRC. The Legislature and its constituents, the People of Arizona, have already suffered the harm of congressional elections that diverge from the process guaranteed by the Elections Clause. No remedy exists to cure the enforcement of this unconstitutional law. Now, the 2014 general election cycle is underway, and the Legislature once again faces the prospect of being denied its constitutionally-delegated authority to determine the “times, places and manner” of federal elections. To avoid irreparable harm and in accordance with the public interest, the Court should preliminarily enjoin enforcement of Prop. 106 and the use of the IRC’s congressional apportionment maps, and upon consolidation of the hearing with the trial on the merits pursuant to Rule 65, enter declaratory judgment that Prop. 106 is unconstitutional and issue a permanent injunction restraining its enforcement.
Of course, the legislature's attorneys PROCLAIM the likely success of their motion and the lawsuit. Yet, can that be anything more than them trying to talk THEMSELVES into believing it first?

The key point upon which this entire case will turn appears to be how the court will define "legislature" as used in the Elections Clause.
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof;
The AIRC, in one of its briefs in this case said:
The Legislature misuses the Elections Clause to elevate its own authority at the expense of Arizona’s Constitution and voters... the Supreme Court long ago, however, established that the Elections Clause does not impose restrictions on a state’s lawmaking process. Smiley v. Holm, 285 U.S. 355, 367-68 (1932)***. Because the Elections Clause does not favor a state legislature over decisions of its citizens, or other lawmaking processes established in a state constitution, the Legislature’s claim should be dismissed.
Clearly, Greg Jernigan and Peter Gentala know that they will lose this case at the trial level and probably at the 9th Circuit Court of Appeals. It's only a guess on my part, but I have to figure this is about one thing only -- a Hail Mary pass at getting the Citizens United Supreme Court to overturn the settled law of Smiley v Holm.

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NOTES:
* The ebb and flow of Tenth Amendment Jurisprudence reflects the delicate constitutional balance created by the Founding Fathers. The states ratified the Constitution because the Articles of Confederation created a national government that was too weak to defend itself and could not raise or collect revenue. Although the federal Constitution created a much stronger centralized government, the Founders did not want the states to lose all of their power to the federal government, as the colonies had lost their powers to Parliament. The Tenth Amendment continues to be defined as courts and legislatures address the balance of federal and state power. 
The Tenth Amendment also is conveniently and conspicuously ignored when the issue is something Arizona's ruling class Republicans dislike, especially when it comes to legislative acts conducted by way of Direct Democracy. Independent Redistricting is certainly one such issue. Legalization of Medical Marijuana is another. As is the case with this particular lawsuit, the will of the PEOPLE of Arizona be damned, as far as the GOP is concerned. They will, of course, try to frame the issue as that THEY are the only legitimate representation of the will of the people of Arizona. Such claims, however, are nothing but hogwash.
**The initiative is usually defined as the people's power to approve or reject legislation initiated or proposed by someone other than the legislature. [...]
The usual form of the initiative is as a citizens' initiative or as a voters' initiative. (The two terms have the same meaning). This is legislation (whether ordinary statutes or fiscal issues) proposed by a group of citizens through a petition.
In Arizona (and some other states), changes to the state constitution can be made by this process of citizen initiative. Which is how we ended up with the Arizona Independent Redistricting Commission.

***...In the first place, the Florida voters’ act of lawmaking according to the state’s expressly enumerated lawmaking process is fully consistent with the commands of the federal Constitution’s Elections Clause, and consonant with the understanding given to the Elections Clause by the Supreme Court in two cases...
From a Michigan Law Review article:
Partisan gerrymandering is a serious contemporary concern, but it is not a new problem. Since at least 1811, when a newspaper editor invented the term to refer to a redistricting scheme by Massachusetts Governor Elbridge Gerry, political parties have used clever line-drawing to protect their incumbents and ensure that they are over represented in legislative bodies relative to their support in the electorate. In this way, parties attempt to maximize their power and retain it, even when a majority of the electorate turns against them. [...]
In Smiley v. Holm the Supreme Court of the United States rejected the Minnesota Legislature’s incumbent-insulating strategy and instead allowed the new party preferences of the state’s voters to find immediate and dramatic expression. 
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My good friend Mary Jo Pitzl has mentioned that Arizona Republic reporters covering the state capitol (she is one of them) keep track or have kept track (or something like that) of the amount of taxpayer money the legislature has been spending on these (frivolous -- my characterization, not hers) lawsuits. I hope she gets those numbers updated very soon so Arizona citizens can stay informed about how our lawmakers are stewarding the funds entrusted to them.

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