Thursday, July 2, 2015

What is a Legislature? Arizona Legislature v. AIRC

In Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRCthe United States Supreme Court - divided 5-4 - with Kennedy swinging to the "left" provoked the now familiar heated rhetoric.  This time it was Justice Roberts dishing out the ridicule.  The people of Arizona by referendum removed the Legislature's power to redistrict Congressional seats (constitutionally mandatory after each census).  They gave it to the Arizona Independent Redistricting Commission.  The Legislature cried foul.
The Constitution guarantees a republican - representative form of government to each state.  And the Elections Clause of Art. I, § 4, cl. 1, provides that “The 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.” 

Now Justice Ginsburg for the majority declared that in this case the people were the Legislature.  Oy vey said Roberts.  "What chumps" were the voters who transferred the power to elect Senators from the "Legislature" to the people.  They should just have done a "magic trick" like that performed by the majority.  Words mean what they choose them to mean, etc, etc.  All to get the desired result - presumably to get redistricting out of the hands of the Republican legislative majority, I suppose.  More dastardly liberal manipulation of language. etc. 

Now comes Yale's Jack Balkin with an offering that resolves the contradiction: the AIRC is a new, second Legislature.  Problem solved. - gwc
Balkinization: What is a Legislature?
Now suppose the state amends its constitution to create a second legislative body-- which it calls "Legislature 2". Its members are appointed for fixed terms by the leaders of the older legislature (Legislature 1). Its members, in turn, can also appoint one additional member to break ties. The constitution gives Legislature 2 the power to pass all laws involving redistricting without the possibility of veto by either the Governor or by Legislature 1. Legislature 1 still handles all other issues of election law.

Is Legislature 2 part of the legislative power of the state under the Elections Clause? It is not identical with the people of the state, and its membership is much smaller than the state’s voting population. It is indirectly representative because its members are appointed by members of Legislature 1, and it passes laws. It is not too much of a stretch to say that Legislature 2 is part of “the Legislature” of the state, along with Legislature 1.

In his dissent, Chief Justice Roberts emphasizes that the uses of the word “Legislature” in the rest of the Constitution generally refers to representative bodies, or indirectly representative bodies like the Senate before the 17th Amendment. Legislature 2 meets his objections. He also argues that the 17th Amendment distinguishes between the Legislature of the state and the people of the state. That is not a problem either: as just noted, Legislature 2 is not the same as the people of the state.

Now suppose the state passes a new constitutional amendment. This amendment renames Legislature 2 and calls it the Arizona Independent Redistricting Commission. Should the name matter at all from the standpoint of the Elections Clause?

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