By Jeremy Duda
The Daily Record Newswire
The United States Supreme Court set out to today determine what the Founding Fathers meant when they wrote that state legislatures shall determine the time, manner and place of federal elections. The answer will determine whether the Arizona Legislature can take authority to draw congressional lines back from the Arizona Independent Redistricting Commission.
Two former U.S. solicitors general squared off to argue whether the high court should interpret the Constitution’s Elections Clause literally or define “legislature” more broadly as a state’s lawmaking powers.
Several justices telegraphed their positions on the issue with pointed questioning of one side or the other, but observers were split on how the court will ultimately rule.
The Legislature’s attorney, Paul Clement, who served as solicitor general under President George W. Bush, said the framers of the Constitution were clear when they wrote the
Elections Clause that “legislature” means the elected, representative body of a state.
“Thus, this avowed effort to re-delegate that authority to an unelected and unaccountable commission is plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states,” Clement said, according to a transcript of Monday’s hearing.
Former Solicitor General Seth Waxman, who represented the IRC, said that’s not the case. Waxman, who served under President Bill Clinton, argued the Supreme Court has recognized that “legislature” refers to a state’s lawmaking powers in general under the Elections Clause.
He cited two cases — Davis v. Hildebrant, which upheld a citizen referendum against an Ohio congressional map, and Smiley v. Holm, which upheld a gubernatorial veto of Minnesota’s map.
Those cases, he said, show that redistricting is subject to the greater lawmaking process of a state, not the legislature alone.
“Arizona defines its legislature in its constitution to include both the people and two representative bodies. And (the) appellant’s argument hinges on the premise that in drafting the Elections Clause, the framers intended to ignore a state’s definition of its own legislature,” Waxman said.
Both sides had supporters on the bench. Two members of the court’s liberal bloc, Elena Kagan and Sonia Sotomayor, sounded extremely skeptical of Clement’s argument. They stressed the case law set by the previous cases.
“We made it very clear in Smiley and Hildebrant that we’re defining ‘legislature’ in this clause as meaning legislative process,” Sotomayor said.
Kagan said those cases showed a need to give states deference as to how they define “legislature.”
“We need to show a lot of respect to the state’s own decisions about how legislative power ought to be exercised,” Kagan said.
Justice Stephen Breyer said he doubted that the Hildebrant and Smiley rulings did much of anything to bolster Waxman’s case, though he said it likely did more to help the IRC than the Legislature.
Meanwhile, conservative justices Samuel Alito and Antonin Scalia took aim at Waxman’s claims. Scalia disputed Waxman’s argument that the Constitution’s framers meant anything except for a state’s legislative body when it wrote “legislature” – he noted that citizen initiatives and referendums did not exist at the time it was written – and that the text of the document does not indicate that the term referred to broader lawmaking powers.
“All I want is one provision of the Constitution that ... clearly has your meaning. And I looked through ... them all. I can’t find a single one,” he said.
Alito and Scalia questioned whether other sections of Constitution that delegate authority to state legislatures could be exercised by the voters themselves, such the power to ratify constitutional amendments or elect U.S. senators prior to the 1913 passage of the 17th Amendment.
Justice Anthony Kennedy, who asked pointed questions of both sides, echoed the comments about the 17th Amendment, which called for the direct election of U.S. senators. Prior to the amendment, Kennedy noted, there had never been a suggestion that legislatures’ power to elect senators could be displaced.
“It seems to me that ... history works very much against you,” Kennedy told Waxman.
Chief Justice John Roberts questioned whether Waxman’s interpretation of the Elections Clause rendered moot its language stating that election laws would be determined “by the legislature.”
“It should have been sufficient for the drafters of the Constitution to simply say it should be prescribed by each state,” Roberts said.
Waxman argued that the framers wanted election laws be determined by the states through legislation, and that redistricting is indeed an act of legislation. He noted that Clement said a legislature could delegate its power. Under prior court rulings that the people can constitute a legislative body, they too would have the power to delegate their authority.
“It is up to the power in each state that makes the laws,” Waxman said. “If the legislature decided, look, we are going to delegate this responsibility to the governor, that would be a constitutional delegation because it would have been a decision made by the lawmaking body of the state.”
Kennedy also probed Clement’s argument that state regulation of elections is strictly the domain of the legislatures. For example, Kennedy asked whether it would violate the Constitution if a state had a commission draw districts that required legislative approval, perhaps by a three-fourths supermajority.
Clement said that would present a difficult case, but that it might be constitutional. He also argued that it would be constitutional to have advisory commissions or “backup commissions” that take over if a legislature does not complete its redistricting work. The key point, Clement said, is that in Arizona, the Legislature is completely cut out of the process of crafting congressional districts.
In fact, Clement argued that the Legislature would have the authority to delegate congressional redistricting to a commission because it could also take that power back.
“What we object to is not just the idea that there is a commission. What we object to is the permanent wresting of authority from the state Legislature,” Clement said.
Kagan and Kennedy also questioned whether a ruling in favor of the Legislature would invalidate other election-related laws passed by voters in Arizona and other states, such as laws requiring mail-in voting or voter identification.
“There are zillions of these laws,” Kagan said.
Again, Clement said that would be a different situation because no one is permanently taking authority away from the Legislature.
“Our position is not the problem here is that somebody else got into the Legislature’s lane and purported to do something about elections. Our problem is once they got in that lane, they decided to wrest the Legislature from that process entirely on a permanent basis,” he said.
Kagan said Clement was contradicting himself.
“On occasion you’ve said something like this – a legislature means a legislature, and so a legislature has to do all those things,” she said. “But you’ve made many, many exemptions to that over the course of the last 20 minutes.”
One thing that both sides seemed to agree on was the Legislature has standing to sue in the case.
The Supreme Court will rule on the case by the end of June.
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