Arizona Eagletarian

Arizona Eagletarian

Saturday, February 21, 2015

AZ lege's final brief in lawsuit to be argued in 9 days before SCOTUS

A few days ago, counsel for Andy Biggshot and David Gowan (successor to Andy Toxin) filed the final brief with the Supreme Court.

Maybe it's wishful thinking on my part, but from the list of arguments detailed in the table of contents, it looks like former US solicitor general Paul Clement has conceded that the Independent Redistricting Commission has a winning case.

The main idea I get from the ToC is that the legislature is hoping that SCOTUS will at least allow it to have some role in developing the Congressional district map for Arizona. Not quite the same as a Hail Mary pass, more like a field goal to tie the game at the end of the fourth quarter.

The first sentence of the text for this reply brief:
The Elections Clause deliberately delegates the primary authority for prescribing regulations for congressional elections, including redistricting, to state legislatures.
That's a decidedly different tone than I recall the plaintiff's previous briefs have taken. Addition of the word "primary" changes the meaning. Otherwise, it would sound like they have up to this point. "The Elections Clause deliberately delegates the ... authority for prescribing regulations for congressional elections, including redistricting, to state legislatures."

Of course, I could be entirely mistaken. I hope I'm not. Clement's next sentence begins,
The Arizona law challenged here just as deliberately takes the redistricting authority away from the Legislature...
The mere fact that the Legislature acknowledges that the issue is "The Arizona law..." validates the notion that Arizona's legislative power does NOT reside solely with "The Legislature."

I am comfortable analyzing and taking apart the language from a language perspective. I don't claim to have any legal education or professional background to predict with any degree of certainty what outcome will eventually emerge from the court.

Besides acknowledging that for me, this may boil down to simply wishful thinking, my main concern is that this brief doesn't represent a "rope-a-dope" tactic by the Legislature. Well, as long as it doesn't cause counsel for the IRC to let down its guard, I don't really mind if that was the Legislature's intent.

The brief's conclusion is simply: "The Court should reverse the decision below." That would be the trial court decision, of course. The last two paragraphs preceding the conclusion state:
As the Framers well understood, while alternatives may sound good in theory, it is hard to beat representative democracy in practice. That is why the Framers gave the primary authority to prescribe regulations for congressional elections to the state legislatures and not some unelected and unaccountable commission. Ultimately, appellees’ position is not that this power should be given to the People, but that redistricting is too fraught with difficulties to be entrusted to the normal lawmaking process, and should be given to just such an unelected commission.
This Court has already rejected two efforts to exempt redistricting from the constraints faced by state legislatures in their ordinary lawmaking process. Facing the voters every few years is perhaps the most important of those constraints. Appellees would free redistricting from that constraint and redelegate the authority from an elected and accountable body hand-picked by the Framers to a different group that possesses none of those virtues. As the Court concluded about a different reform-minded initiative in Thornton, the option open for appellees’ proposal lies in Article V, not in ignoring the plain terms of Article I.
So, finally, perhaps because of the breadth and depth of the amicus briefs filed in support of the Redistricting Commission's position, the Legislature has had to come to grips with the arguments against the Legislature's position. This seems to be the first actual acknowledgment by them for that point.

In so doing, the Legislature continues to hammer on the false meme about the IRC being "unelected and unaccountable." They use the phrase quite a few times in the final brief. In what likely IS the Legislature's Hail Mary pass, suggesting the voters only legitimate option would be an Article V convention, seems like a long shot to me.

The Legislature can only even pretend to claim the IRC is unaccountable is because when IT tried to decapitate the IRC in 2011, the Arizona Supreme Court put a stop to it. Instead, the episode demonstrated that it was the LEGISLATURE which was unaccountable to the PEOPLE in what was really a misguided effort to exercise authority it no longer rightfully owned. The people of Arizona put a stop to the hubris-filled GOP/ALEC-owned cabal that consistently does more to subvert the will of voters than to fulfill it.

The fact of the matter is that if there actually had been IRC misconduct in 2011, instead of simply the political squabble the Legislature threw a tantrum over, it could have fired/impeached/removed one or more of the commissioners. So, that argument is complete bullshit.

Again, and I think I've made this point before, if the Legislature was -- in a practical sense -- accountable to the people, we wouldn't have needed to implement independent redistricting in the first place.

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The other recent development in this lawsuit is that SCOTUS, on Friday, granted the motion by the US solicitor general (DOJ) to argue as amicus curiae at the hearing on March 2nd. Other than the parties (Legislature and IRC), DOJ will be the only amici participating in the oral arguments.

1 comment:

  1. The Legislature (or at least its respective leaders) does have a very big responsibility in the Arizona redistricting process and that is the appointment of four of the commissioners. Two Republican and two Democratic.

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