Redistricting -- AZ Legislature's lawsuit goes down in flames

On Friday afternoon, the three-judge panel that had heard oral arguments in January for dismissing the legislature's challenge to the Congressional district maps drawn in 2012 issued a 2-1 decision and 14-page order dismissing the legislature's challenge. Judge Murray Snow wrote the opinion with Judge Mary Schroeder concurring.

Judge Paul Rosenblatt concurred in part and dissented in part.

The Associated Press summed it up thus,

The three-judge panel's majority ruling rejects lawmakers' arguments that the U.S. Constitution gives only the Legislature the authority to draw maps for the federal districts. U.S. District Judge Paul Rosenblatt dissented. [...]

The majority on the panel ruled that Arizona voters' creation of the commission to draw districts was not unconstitutional and that the U.S. Supreme Court has upheld similar efforts by states to remove the drawing of district maps from partisan lawmakers.

"The Arizona Constitution allows multiple avenues for lawmaking, and one of those avenues is the ballot initiative, as employed here through Proposition 106," U.S. District Judge Murray Snow wrote. "Plaintiffs ... cannot dispute that the initiative power is legislative." 

Rosenblatt, however, strongly broke with Snow and Circuit Judge Mary Schroeder. He noted that the way the commission is chosen by the Legislature, from a list drawn up by the state's commission on appellate appointments, and that fact that the commission can reject the Legislature's suggested map changes, undermine the Legislature's constitutional power to oversee elections.

From the court decision:

To the extent, however, that the Legislature makes arguments that the IRC cannot be the repository of legislative authority because it is not a representative body, such arguments arise under the republican guarantee clause of the Constitution and, as such, are not justiciable.

In other words, we don't buy what the legislature is trying to sell us, as any argument the legislature may make that the IRC is not a representative body are not subject to judicial interpretation. So, that's one strike against the legislature. More from the court decision:

What the parties dispute is the meaning of the Elections Clause of the United States Constitution. That clause states that “[t]he 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 chusing Senators.” U.S. Const, art. I, § 4, cl.1. Plaintiff asserts that because the word “legislature” means “the representative body which makes the laws of the people,” (Doc. 12 at ¶ 37), and the Clause allows the legislature to prescribe the time, place and manner of holding elections for congresspersons, the Clause specifically grants the power to realign congressional districts to the legislature. The Supreme Court, however, has at least twice rejected the notion that when it comes to congressional redistricting the Elections Clause vests only in the legislature responsibilities relating to redistricting. Both cases found that states were not prohibited from designing their own lawmaking processes and using those processes for the congressional redistricting authorized by the Clause. In subsequent cases, the Supreme Court has reaffirmed that a state can place the redistricting function in state bodies other than the legislature. [...]

In doing so the Court declined to hold that the Clause granted redistricting authority uniquely to the state legislature as opposed to any other entity, including the people, which the state may have endowed with “legislative power.” Thus the Court observed that the argument that Congress had violated the Elections Clause by authorizing re-districting to be accomplished “in the manner provided by the laws [of the state]” including referendum as it had been used in Ohio to reject the legislature’s redistricting map, “must rest upon the assumption that to include the referendum in the scope of the legislative power is to introduce a virus which destroys that power, which in effect annihilates representative government.” [...] (emphasis mine)

Had the Court interpreted the Elections Clause as requiring that redistricting authority was vested uniquely in the legislature as opposed to giving the states discretion of where to place such authority within the scope of the “state’s legislative power,” there would have been no need for the Court to hold that the question of granting the people of Ohio the right to participate in congressional redistricting through the referendum power was not justiciable. Thus, in affirming the State Supreme Court’s denial of the writ of mandamus in favor of the validity of the referendum, the Court necessarily held that to the extent that the Elections Clause vested some constitutional authority in a state to redistrict national congressional districts, that authority was vested in the operation of a state’s legislative power; not necessarily in the state legislature. [...] (emphasis mine)

It noted that the function to be performed under the Elections Clause is to prescribe the time, place and manner of holding elections. “As the authority is conferred for the purpose of making laws for the state, it follows, in the absence of an indication of a contrary intent, that the exercise of the authority must be in accordance with the method which the state has prescribed for legislative enactments.” Id. at 367. The Court found “no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.” [...]

Hildebrant and Smiley thus demonstrate that the word “Legislature” in the Elections Clause refers to the legislative process used in that state, determined by that state’s own constitution and laws. Other Courts have arrived at the same conclusion. “The Supreme Court has plainly instructed . . . that this phrase [‘the Legislature’] encompasses the entire lawmaking function of the state.” Brown v. Sec’y of State of Fla., 668 F.3d 1271, 1278-79 (11th Cir. 2012). [...]

Plaintiff notes that the ballot initiative is not one of the four constitutionally-defined processes by which the Legislature itself may enact laws (Doc. 17 at 11), but it cannot dispute that the Arizona Constitution specifies that the initiative power is legislative. Ariz. Const. art. IV, pt. 1, § 1, ¶ 1 (“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”). (emphasis mine)

Clearly, the majority members of the panel recognized that the U.S. Constitution is about representation of the PEOPLE rather than the rights of a partisan body which more often than not thumbs its collective nose(s) at the will of the people of Arizona.

But then there was Judge Rosenblatt's dissent. House Speaker Andy Tobin was pleased with that part of today's findings. But Tobin also had a note of resignation in his voice when he spoke with the AP.

House Speaker Andy Tobin [sic] the result was not unexpected but was pleased to see the strong dissent from Rosenblatt. He said the Legislature expected all along that the case would head to the U.S. Supreme Court and he expects that effort to begin soon. That appeal bypasses lower courts.

"If they think its frivolous we want to know that too, and then the argument will be over," Tobin said. 

Again from the court decision:

There is no dispute that the IRC was created through the legislative power reserved in the people through the initiative with the specific purpose of conducting the redistricting within the state, and that in exercising its functions the IRC exercises the state’s legislative power. [...]

Plaintiff apparently recognizes, in light of Hildebrant and Smiley, that the Elections Clause does not give unique authority to state legislatures to conduct redistricting.

Hence, we see why Tobin tacitly acknowledges his lawsuit was frivolous. But I don't hear anyone clamoring for Tobin or Senate President Andy Biggs(hot) to justify the money THEY frittered away with this lawsuit. More from the court decision:

As the Supreme Court stated in Smiley, the Elections Clause includes no “attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.”...

...the Supreme Court’s decisions in Hildebrant and Smiley “provided a clear and unambiguous answer . . . twice explaining that the term ‘Legislature’ in the Elections Clause refers not just to a state’s legislative body but more broadly to the entire lawmaking process of the state.” 668 F.3d at 1276.4 In Arizona the lawmaking power plainly includes the power to enact laws through initiative, and thus the Elections Clause permits the establishment and use of the IRC.

Therefore,
IT IS ORDERED THAT Defendants’ Motion to Dismiss for Failure to State a Claim (Doc. 16) is granted. (emphasis in original)

Rosenblatt's dissent follows and can be read at the link provided above. As the AP notes, Rosenblatt "strongly" dissented. But the strength of his dissent is only in the emphatic choice of words he used to describe his displeasure. The strength is definitely NOT in a strong argument.

It cannot be disputed that the Elections Clause's reference to "the Legislature," as that term has been interpreted by the Supreme Court, refers to the totality of a state's lawmaking function as defined by state law, and that in Arizona a citizen initiative, such as that used to enact Proposition 106 to amend the state constitution, is an integral part of the state's legislative process. But the fact that Arizona has appropriately used its initiative process to establish the IRC cannot be the end of the inquiry under the Elections Clause, as found by the majority, because it also cannot be disputed that any law passed by a state, whether through an initiative or referendum or directly by the legislature, must abide by the United States Constitution.

He just didn't make a case for how the establishment of the AIRC fails to abide by the U.S. Constitution. The sole point he makes, and he states only that he finds it "instructive," is that in the three cases cited showing where and when Congressional redistricting was conducted other than by a state legislature, "all involved situations in which the state legislature participated in the redistricting decision-making process in some very significant and meaningful capacity."

In one, a governor vetoed a legislatively drawn map, in another the voters vetoed a map by referendum and in the other, the legislature drew the map based on strict rules imposed by a citizen initiative.

This is where I invoke the "I'm not a lawyer, but..." scenario. Rosenblatt's argument revolves around the notion of the "rights" of the legislature, rather than the rights and responsibilities of the PEOPLE. To me, that argument seems incredibly weak. He closed his dissent with this,

What Plaintiff does not have under Proposition 106 is the ability to have any outcome-defining effect on the congressional redistricting process. I believe that Proposition 106's evisceration of that ability is repugnant to the Elections Clause's grant of legislative authority.

Well, La-dee frickin' DAH! Who, other than enemies of genuine representative government in Arizona, cares what you believe, Judge Rosenblatt? I believe you didn't make a valid argument.

We will see just how weak or strong when, ultimately, the U.S. Supreme Court either overrules or affirms the majority decision. That's not likely to come before the 2014 election.