By Michael Cain
As I’ve written before, the Arizona Legislature v. Arizona Independent Redistricting Commission case before the US Supreme Court this year was an important one for those of us who favor citizen initiatives as widely adopted in Western states a hundred years ago (and important to those of you who would like to see initiatives go away, too). The citizens of the State of Arizona, acting through the initiative process, amended their constitution and took the power to draw US House districts away from the state legislature. The power to define the districts now resides with an independent commission. The Legislature sued, on the grounds that the Elections Clause of the US Constitution gave that authority exclusively to the Arizona Legislature:
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, except as to the Places of chusing Senators.
The Supreme Court addressed two questions in this case. First, did the Arizona Legislature have standing to sue, and second, is the use of a commission to specify the districts for US House seats permissible? The District Court answered “yes” to both of these . That Court cited two Supreme Court decisions in particular, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916) and Smiley v. Holm, 285 U.S. 355 (1932).
In both of those cases, the Supreme Court held that redistricting should proceed under the normal legislative process of the state. Both cases involved the redistricting law passed by the state legislature being overruled: in Smiley by governor’s veto and in Ohio by voter referendum. In both of those cases, the legislature retained a large role in the redistricting process.
After oral arguments in the Arizona case this Term, it was noted that Justice Kennedy had asked questions about how “the Legislature” in the Elections Clause could mean something other than the representative body elected by state voters. The conventional wisdom at the time was that the Arizona Legislature would prevail on a 5-4 vote with the majority consisting of Kennedy and the conservative wing.
Instead, Kennedy voted with the liberal wing and affirmed the District Court’s ruling. The majority opinion was written by Ginsberg and is more flowery than I prefer in legal opinions (the people as the true sovereign, states as laboratories of democracy, and so forth). Chief Justice Roberts wrote the most substantive dissent, joined by the other three conservatives, making the argument that “the Legislature” means the elected representative body, no more and no less. This dissent is rather more nasty in tone than I prefer in legal opinions (e.g., “What chumps!” referring sarcastically to the people who worked to put the Seventeenth Amendment in place). Justice Scalia wrote a separate dissent, joined by Justice Thomas, arguing that the Arizona Legislature lacked standing. Justice Thomas wrote his own dissent, joined by Justice Scalia, in which he mostly whined about the majority showing such great deference to the states and initiatives in this case but not showing the same deference with respect to same-sex marriage in Obergefell v. Hodges.
So, what happened? Why did the conventional wisdom get it wrong? Two things, in my opinion.
First, Justice Kennedy is a California boy, born and raised there, attended Stanford, practiced law there, and eventually served on the Ninth Circuit Court of Appeals. And despite Justice Scalia’s opinion in Obergefell last week that California isn’t a “genuine” Western state, California is very much a part of the West when it comes to the citizen initiative.
Combine that with the last paragraph from the syllabus on the majority opinion:
Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.”
In short, that particular genie has been out of the bottle for a hundred years. No one is going to be able to put it back now.
As Burt often reminds us, standing can be an interesting and complicated thing. The courts ruled that the Arizona Legislature had standing because a power that they had previously held – drawing the US House district boundaries – had been completely removed. This will possibly be important in Hickenlooper v. Kerr, the other initiative case appealed to the Supreme Court this year. In Hickenlooper, a constitutional amendment added by initiative completely removed the state legislature’s power to raise tax rates or create new taxes. The matter that reached the Supreme Court was a motion by the defendants to dismiss because the Colorado Legislature lacked standing. The day after the Arizona decision was released, the Supreme Court dealt with the Colorado case by granting cert, vacating the Appeals Court judgment, and remanding the case to the Appeals Court for further consideration in light of the Arizona result .
Chief Justice Roberts’ remarks about the Seventeenth Amendment are interesting, but not for the reasons he thinks they are. When he writes, “Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’?” he neglects the fact that many states were trying to do exactly that. The Seventeenth Amendment was part of the Progressive wave that added the citizen initiative process – a legislative process operating in parallel to the traditional one – to the constitutions in many states. The “Oregon Plan”, created through the initiative process, utilized a direct primary for US Senate seats as part of the regular election and bound state legislators to select the winner of the poll as Senator. By the time the US Senate passed the Seventeenth Amendment, 29 states were for practical purposes directly electing their Senators .
That aside, the question of why “the Legislature” doesn’t mean “the People” in all the other places it appears in the Constitution is certainly worth considering. The majority draws on Hawke v. Smith, 253 U.S. 221 (1920) to make the distinction. IANAL and will undoubtedly get some of the fine distinction wrong here. When a particular action results in normal laws within the state, “the Legislature” means the legislative process as defined by the state. When the action is a federal power rather than a state law – in Hawke, ratification of an Amendment to the US Constitution – “the Legislature” means the representative body. In that case, the Supreme Court held that defining districts was just a routine law. It’s a fine distinction and I’m not sure I buy it entirely.
That leaves me in kind of a funny position. I’m pleased with the majority’s decision. On a larger scale, I’m still uneasy. Despite Scalia’s position, the Court is going to be called on more and more often to consider the relationship of direct democracy and the Constitution. There are likely to be further questions regarding the encroachment of the initiative on traditional legislative powers – the Colorado case regarding taxing authority is one such. There are also things that may be national, or at least span multiple states. I’m thinking about things like the National Popular Vote Plan in which a subset of states will attempt to impose direct national democracy on the Electoral College without a Constitutional Amendment.
I’d feel more comfortable if I thought there were some sort of emerging principles rather than just muddling through.
 Under federal law, constitutional challenges to federal legislative districts are heard by a three-judge federal trial court and any appeals are made directly to the Supreme Court.
 Both sides immediately declared victory. The defendants because the Appeals Court decision was vacated. The plaintiffs because of the similarity between the standing questions in Arizona and Hickenlooper.
 It’s unclear to me whether such arrangements were ever challenged in federal court. Adoption of the Seventeenth Amendment made that a moot point, of course. Historical speculation is that the US Senate passed the amendment because the roll of states calling for a constitutional convention was only four short of the number needed, and Congress was terrified of what a convention might attempt.
Image credits: Justice Kennedy official Supreme Court portrait via Wikipedia; Arizona congressional districts map from the Arizona Independent Redistricting Commission website.
A note from the editors: For the record, Michael Cain sent me this fantastic piece six days ago, and it’s entirely my fault that it didn’t run more promptly than this. Stupid day job. – Burt Likko