As in many other states, the Arizona Legislature shares legislative power with the people, who since statehood have had the power to pass laws or amend the state constitution through ballot measures. Ariz. Const. art. IV, pt. 1, § 1(1). In 2000, Arizonans used that power to create a new constitutional body, the Independent Redistricting Commission, whose purpose is to “provide for the redistricting of congressional and state legislative districts.” Ariz. Const. art. IV, pt. 2, § 1(3)-(23) (“Prop 106”). Until then, the Legislature had controlled redistricting legislation, subject to the governor’s veto and the people’s power of referendum and initiative.
Apparently dissatisfied with the Commission’s congressional redistricting plan adopted in 2012, the Legislature brought this case on the theory that the voter-created Commission violates Article I’s Elections Clause because it “divests the Legislature of its authority” over redistricting legislation. (See Appellant’s Jurisdictional Statement (“JS”) at 33.) See U.S. Const. art. I, § 4.
This Court should dismiss this appeal for lack of a substantial federal question or summarily affirm the district court’s dismissal of the Legislature’s claim. The three-judge panel’s order is a straightforward application of this Court’s long-standing precedent. In two cases, this Court has already rejected the argument that the Elections Clause grants a state legislature some special institutional control over redistricting legislation. Smiley v. Holm, 285 U.S. 355 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916).
The Elections Clause gives states the authority to regulate federal elections by enacting legislation in the manner “in which the Constitution of the state has provided that laws shall be enacted.” Smiley, 285 U.S. at 368. In Arizona, the state constitution “has provided that” redistricting legislation “shall be enacted” through the Commission. Like the voter referendum in Hildebrant and the gubernatorial veto in Smiley, the existence of the Commission “is a matter of state polity” that does not violate the Elections Clause. Smiley, 285 U.S. at 368. The Court need not take plenary review merely to consider another factual permutation of an issue it resolved long ago.
In the alternative, although the district court decided the merits, this Court should vacate the district court’s judgment and remand with instructions to dismiss for lack of subject matter jurisdiction. The case presents a non-justiciable political question because the Constitution dedicates this question to Congress, which has power to “make or alter” state regulations. And Congress decided a century ago that redistricting should be done pursuant to state law. See 2 U.S.C. § 2a(c).The 39-page AIRC motion concludes:
The appeal should be dismissed for want of a substantial federal question. In the alternative, the judgment should be summarily affirmed or vacated with instructions to dismiss for lack of subject matter jurisdiction.
Today's edition of the Arizona Daily Sun (Flagstaff) carries a story written by Howie Fischer on the subject.