Arizona Eagletarian

Arizona Eagletarian

Thursday, November 7, 2013

GOP Hubris -- the latest filing in AIRC challenge

It's pretty much a given, especially in Arizona, that the Republican controlled legislature thinks of itself as God.

Well, at least that it sees itself a superior to the will of the voters of Arizona. Need I count the ways?

Okay, so you know this is the case. But do you REALLY know? How vivid is your understanding of the problem?

Consider the latest brief in the ongoing saga of that not-so-august body seeking federal court permission to kill the Arizona Independent Redistricting Commission. From a strictly legal vantage point, the brief and the language therein might be mundane. However, when a person reads what the GOP actually sets forth, it's shockingly eye-opening.
First, Defendants’ appeal to federalism to evade the Elections Clause as a limit on state legislative power clashes with the actual federal structure embodied in the Clause itself. Moreover, in the Elections Clause context, states act by express delegation and have no inherent or reserved authority over federal election procedures.
Second, Defendants seek to minimize the historical evidence marshaled by the Legislature without even offering an alternative reading of that history to support their attempted departure from the plain text of the Constitution.
Third, Defendants falsely claim that Arizona’s current scheme still allows the Legislature to participate with meaningful authority under the Elections Clause. The AIRC, however, is known as the Independent Redistricting Commission precisely because it has exclusive authority to conduct redistricting independently from the Legislature.
Fourth, Defendants pin their final hopes on avoiding the merits altogether; first by divining a nonjusticiability argument; and second by arguing laches. The former ignores a century of federal court decisions allowing challenges to the states’ legislative power under the Elections Clause. The latter may not be applied to a government body bringing a constitutional claim to vindicate the paramount public interest in maintaining the Constitution as the supreme law of the land.
The first paragraph appears to say virtually nothing other than that the AIRC invoked the Arizona Constitution -- which reserved the right of the PEOPLE to exercise legislative (lawmaking) authority -- and that the GOP gods in the legislature don't like that one bit.

Second, the GOP gods are pissed* because they had hoped to bait the AIRC into rebutting what the GOP claims is "historical evidence marshalled by the Legislature..." Obviously, whatever historical evidence they claim to have "marshalled," isn't so obviously potent.  The word "marshalled" is a military word. They apparently hope it conveys a sense of strength to the GOP argument that the argument itself apparently does not have.

Third, the GOP gods mischaracterize briefing submitted to the court by the AIRC concerning the role of the Legislature in the redistricting process. The GOP suggests the AIRC has claimed that the Lege somehow still has AUTHORITY with regard to district maps. The AIRC claimed no such thing. The pertinent wording in the state constitution is,
Either or both bodies of the legislature may act within this period to make recommendations to the independent redistricting commission by memorial or by minority report, which recommendations shall be considered by the independent redistricting commission. The independent redistricting commission shall then establish final district boundaries.
Fourth, pretending to have been righteously offended, these GOP gods make known how they want themselves to be viewed by their sycophants and by historians.
...a government body bringing a constitutional claim to vindicate the paramount public interest in maintaining the Constitution as the supreme law of the land.
I'll concede that the AIRC has ZERO chance of having its motion to dismiss granted. But such a grandiose claim that THEY are trying to vindicate any public interest, let alone an issue of "paramount" public interest? Oh, puhleeze.

Let's set the context. First, the context of the purpose of the US Constitution:
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
It pretty much goes without saying that when this constitution was first officially adopted, there was a whole lot of distance between the purpose/intent and the actual laws enacted by Congress and state legislatures. But the arc of history has bent toward justice, even though the bending process takes time.

Now, the context of the Arizona Legislature and whether it complies with either the spirit or the letter of the constitution.

The GOP dominated Arizona Legislature's last act before shutting down the 2013 regular session was to pass a brazen effort to disenfranchise college students and minority voters (HB2305, the Voter Suppression Act). The citizen referendum, by which the PEOPLE of Arizona will veto HB2305, has been certified by Secretary of State Ken Bennett to appear on the November 2014 general election ballot.

Earlier in the session, a great deal of effort was focused on killing the Citizens Clean Elections Commission, and further chipping away -- as it has since CCEC was first passed by voters -- at provisions in the voter approved measure designed to minimize corruption.

That effort culminated in the Lobbyist Shakedown Bill (HB2593), which is now also subject to litigation and has been put on hold by the Arizona Court of Appeals. Just this week, the Legislature appealed further, to the state Supreme Court.

If people didn't know better, they might get the idea that the main focus of the Arizona Legislature has been an full on assault on the rights of Arizona citizens. Then again, what evidence is there to the contrary?

By the way, I still have not seen reports in the Arizona Republic on the amount of taxpayer money the GOP leaders have been spending on litigation fighting the will of the people of our state.

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Back to the brief in support of the Legislature's motion for an injunction to prevent the current Congressional district map from being used for 2014. Here's what they say about federalism.
...both state and federal authority are at risk if “by the Legislature” distorts to “by any process of a state’s legislative power.” (emphasis mine, reference this expression in the Elections Clause, quoted below)
Isn't that special? These guys are starting to sound like they are afraid of disruptive innovation that moving more and more toward Direct Democracy. Here's the language of 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; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
Actually, they go further in spelling out just how much contempt they have for the people.
The structure of the Elections Clause (Article I, Section 4) displays the crucial republican principle of the states’ representative bodies acting to affect the election of the federal representative body – this is the very essence of federalism. Defendants may prefer a structure of a different stripe, but that would require a Federal constitutional amendment. Reformulating the plain meaning of the Elections Clause is what jeopardizes the constitutional balance of power between the representative bodies.
Speaking of the CENTURY of history they claim the AIRC ignores, I offer the following, not that it will burst the GOP's hubristic bubble.

While it may or may not be directly related to this argument about the Elections Clause, there actually WAS a constitutional amendment that took significant power, as enumerated in that Clause, away from state legislatures. The 17th Amendment, passed by the US House in 1912 and enacted when ratified in 1913, cancelled state legislatures' authority to appoint US Senators. Since 1913, the PEOPLE have elected each state's senators.

What makes these guys think the citizens of Arizona will tolerate usurpation, by the legislature, of authority that the PEOPLE have taken away from them?

How much taxpayer money will Arizona's Republican lawmakers spend on frivolous lawsuits before they get the message that they are most assuredly on the wrong side of history on this issue?

Martin Luther King Jr. and others have famously said that the moral arc of the universe bends toward justice. Dr. Larry Brilliant, president of the Skoll Global Threats fund, recently wrote that the arc will not bend on its own. Of course, Dr. Brilliant was alluding to both cultural inertia (which I have written about) and that it takes civically engaged citizens to act in order to bend that arc.

My point here and now is that there is ample evidence the GOP-controlled legislature is on the wrong side of that arc.

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* NOTE: Actually I'm reminded of a scene from the 1980 movie The Gods Must be Crazy. In that scene and in the linked clip, we see a poignant depiction of relative deprivation. Relative Deprivation is a theory of collective action that explains a great deal of the social psychosis under which the Tea Party has been manipulated and worked into frothy mobs the last few years.

While manipulation of angry people generated a movement that got some people of questionable intellect and/or character elected to Congress over the last few years, this theory also relates to the arc of history concept mentioned by King and others. Arizona voters now are able to exercise authority over specific actions of the Arizona Legislature. Can you imagine that the people will give up that authority? I can't.

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