Redistricting -- Resolved: Hire a heavyweight for SCOTUS arguments

Pursuant to a resolution made in an open session meeting of the Arizona Independent Redistricting Commission late this afternoon, Commission staff will now enter into a contract with former US Solicitor General Seth P. Waxman to represent the people's (AIRC) interest in oral arguments in Arizona Legislature v AIRC, tentatively scheduled to take place before SCOTUS the last week of February 2015.

The resolution passed by a mostly non-contentious vote of 3-2, with Republican Commissioners Scott Freeman and Rick Stertz the reliable NAY votes.

Both of them explained their votes. Freeman indicated his support for the decision and for the particular attorney chosen. However, he added a caveat that he chose to vote NAY because he did not want it to be construed as him supporting the current Congressional district map in use in Arizona. After the meeting adjourned, Freeman clarified that his concern goes back to the Harris trial. He believes that during depositions for Harris, he did his best to be cooperative but felt that AIRC trial counsel used it against him.

Stertz agreed with all of what Freeman said and added a snarky comment about not getting all of the briefing documents for this meeting. I later spoke with AIRC director Ray Bladine about the comment.

He told me that current counsel Mary O'Grady and Joe Kanefield had conducted preliminary screening of several attorneys prior to deciding to recommend Waxman. Bladine said that all of the commissioners were given background information on Waxman but that AIRC chair Colleen Mathis had specifically asked to have resumes sent to her for each of the candidates considered. She was the only commissioner who asked for the background information on each candidate.

The terms of the contract to be offered to Waxman will be for him to represent the AIRC pro bono with reimbursement for related expenses. O'Grady indicated the biggest expense they expect will be printing costs for the appellate brief. That brief must be filed by the commission not later than November 17. The plaintiffs (Arizona Legislature) will then have 30 days (after Nov 17) to file their final brief. Amicus briefs anybody may want to file must be submitted to the court no later than one week after the plaintiffs deadline.

Because the only member of the AIRC to attend the meeting in person was Freeman, he was the only one I was able to talk with afterward. He was genuinely excited for this matter to be heard before the Supremes. Along with questions to clarify his vote explanation, I asked him about the central issue of the case, the legislature wanting SCOTUS to codify Parliamentary Sovereignty to negate the Prop 106 vote of the people of Arizona.

Freeman didn't pick up on my use of the expression parliamentary sovereignty and instead keyed in on the question of the definition of "legislature" as used in the US Constitution. Which, of course, is the same question as I presented.

Parliamentary Sovereignty:

Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

Popular Sovereignty:

Popular sovereignty or the sovereignty of the people is the principle that the authority of the government is created and sustained by the consent of its people, through their elected representatives (Rule by the People), who are the source of all political power. It is closely associated with republicanism and social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality. It is usually contrasted with the concept of parliamentary sovereignty, and with individual sovereignty. The people have the final say in government decisions.

Benjamin Franklin expressed the concept when he wrote, "In free governments, the rulers are the servants and the people their superiors and sovereigns".

Individual Sovereignty:

This concept relates directly to issues regarding womens' rights to make their own health care decisions.

Self-ownership (or sovereignty of the individual, individual sovereignty or individual autonomy) is the concept of property in one's own person, expressed as the moral or natural right of a person to have bodily integrity, and be the exclusive controller of his [her] own body and life.

On a related note, close to a century ago now, the 17th amendment was enacted to end the practice of state legislatures appointing the members of the U.S. Senate. This amendment enshrined popular sovereignty very clearly in the Constitution. From Archives.gov:

Americans did not directly vote for senators for the first 125 years of the Federal Government. The Constitution, as it was adopted in 1788, stated that senators would be elected by state legislatures. The first proposal to amend the Constitution to elect senators by popular vote was introduced in the U.S. House of Representatives in 1826, but the idea did not gain considerable support until the late 19th century when several problems related to Senate elections had become evident. Several state legislatures deadlocked over the election of senators, which led to Senate vacancies lasting months and even years. In other cases, political machines gained control over state legislatures, and the Senators elected with their support were dismissed as puppets. In addition, the Senate was seen as a “millionaire's club” serving powerful private interests. The rise of the People's Party, commonly referred to as the Populist Party, added motivation for making the Senate more directly accountable to the people.

During the 1890s, the House of Representatives passed several resolutions proposing a constitutional amendment for the direct election of senators. Each time, however, the Senate refused to even take a vote. When it seemed unlikely that both houses of Congress would pass legislation proposing an amendment for direct election, many states changed strategies. Article V of the Constitution states that Congress must call a constitutional convention for proposing amendments when two-thirds of the state legislatures apply for one. Although the method had never previously been used, many states began sending Congress applications for conventions. As the number of applications neared the two-thirds bar, Congress finally acted.

The bottom line, as I see it, is that if the Legislature succeeds in getting SCOTUS to negate the AIRC for Congressional maps, it will signify that the Legislature becomes the sovereign authority in Arizona -- and any other state with an independent redistricting commission. That negates, not only a century of case law on redistricting but also the entire concept of popular sovereignty.

We already have cause to demand an Article V convention with regard to Citizens United. Negating popular sovereignty is a dangerous direction for the United States to be heading. Lord knows how riled up the people will get if the court gets this one wrong.