Redistricting -- Harris plaintiffs and AZ Legislature filed SCOTUS briefs

In Harris v Arizona Independent Redistricting Commission, an 18-page brief -- Opposition to Motion to Dismiss or Affirm -- was filed recently. The gist of the brief is a complete rewrite of the outcome of the week-long March 2013 trial. Rewriting history. That's probably the best way to characterize the hissy fit convicted felon Wes Harris and his fellow plaintiffs authorized their counsel, now led by "Thor" Hearne to put in writing.

Besides rewriting history, it appears Thor is beseeching the nine Justices to try the case de novo.

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In Arizona Legislature v Arizona Independent Redistricting Commission, lead counsel Paul Clement's 86-page brief argues, with regard to the People having approved Prop 106, that the Legislature has been injured. From page 11 of the brief, in the first section of the summary of argument:

Here, the Legislature has been completely deprived of that power, which is now in the hands of the IRC. The divestment of the Legislature’s constitutionally-conferred redistricting authority clearly constitutes an actual, concrete, and particularized injury to the Legislature. The Legislature’s injury is directly traceable to the IRC’s usurpation of the Legislature’s redistricting authority, and a favorable decision by this Court will plainly redress the Legislature’s injury by restoring its constitutional authority.

States and other State-level entities routinely seek redress in federal court when deprived of rights or powers conferred or protected by the federal Constitution. There is no reason to treat a state legislature differently when it has been deprived of a power specifically conferred upon it by the federal Constitution. That is especially so when, as here, the unconstitutional usurpation is worked by an initiative, rather than through the ordinary legislative process. Whatever issues might be implicated by a scenario where a legislative party complains of a “self-inflicted wound,” here there is no possibility of repeal or resort to political remedies to redress the injury worked by Proposition 106 and the IRC-drawn maps. The Legislature’s injury was not caused by the Legislature, and it cannot be remedied by the Legislature. Recourse in the federal courts is both permissible and appropriate.

The absurdity of this summary is astounding. "Divestment of the... redistricting authority clearly constitutes an actual, concrete, and particularized injury to the Legislature." Those poor babies. If only their mothers were around to give them hugs and hot chocolate!

"That is especially so when, as here, the unconstitutional usurpation is worked by an initiative, rather than through the ordinary legislative process."

Wouldn't that statement more properly and fairly have been stated thus? "That is especially so when, as here, the "unconstitutional" usurpation is worked by the People, rather than through the ordinary legislative process?" This is rhetorical legerdemain.

Upon perusing the caption, table of contents and table of authorities I briefly felt somewhat intimidated. But that subsided when I read the summary of the Legislature's argument.

There's not much more I can do to digest and regurgitate the contents of these two briefs tonight (this morning). So, I leave you with this excerpt from Foreword: Out from Under the Shadow of the Federal Constitution: An Overlooked American Constitutionalism (page 24). (Notes for source citations included at the linked article)

In drafting and revising nineteenth century constitutions, American constitution-makers repeatedly acknowledged that "alter or abolish" provisions were "practical" principles that gave American republics their "distinctive character." In Virginia's 1829 convention, James Monroe observed,

"Ours is a government of the people: it may properly be called self-government. I wish it may be preserved forever in the hands of the people. Our revolution was prosecuted on those principles, and all the Constitutions which have been adopted in this country are founded on the same basis."  

Speaking of "alter or abolish," here's what Monroe was referring to in the quote above. You might recognize these words, an excerpt from arguably the most sacred political document in the history of our republic.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I don't know how many millions of Americans have read or pondered these words over the course of the last 238 or so years, but I understand that many in contemporary times have expressed deep frustration with various aspects of American government. In the 1860s, some states even went so far as to attempt succession from the Union. We know that didn't work out well for those states and for many soldiers on both sides. Anyone conversant in current affairs knows that civil disobedience and armed rebellion are in the minds of many Americans today.

Many others, including perhaps dozens of members of the Arizona Legislature today, have openly called for an Article V convention to amend the US Constitution even now. Just last spring, House Concurrent Resolution 2027, proposing that very thing, was approved by the Arizona House of Representatives but died in the Senate. Further, voters just last month approved Prop 122 as an expression of frustration with American government.

Was not Prop. 106, which established the Arizona Independent Redistricting Commission, a conscious act of the People of Arizona to alter the federal AND state government because of longstanding and continuing oppressive acts by both Congress and the state legislature?

Is the long history of abusive partisan gerrymandering, wherein legislative officeholders choose the voters most likely to protect their incumbency, a "light and transient cause?" Or is that longstanding pattern rather a "long train of abuses and usurpations?"

As I see it, the Legislature's own argument demonstrates the very same "absolute Despotism" which drove the Founding Fathers to revolt against King George in 1776.