Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.
You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.
And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

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 choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Are competitive congressional elections always a good thing?

In today's Arizona redistricting case, the least persuasive arguments focus solely on the good of independent redistricting commissions and the evils of gerrymandering. That, of course, was the thrust of Arizona's ballot initiative that was enacted, and some briefs in this litigation are treating the Supreme Court as a kind of ratifying commission for this political decision.

But here's one question I like to float to students and others skeptical of gerrymandering. (Disclosure: this blog is named after a quotation from Elbridge Gerry.) Are competitive elections always a good thing?

There are at least two immediate costs that come with a competitive election: increased price tag on elections, and increased uncertainty in outcomes leading to recounts and litigation.

Arizona, case in point.

Even though Arizona has just nine members in the 435-member House of Representatives, it boasted two of the four most expensive races in outside spending (or, depending on your politics, "dark money") in 2014. Competitive elections often mean that the price of running an election increases--and that the amount of outside spending increases.

One House race was decided by just 167 votes, certified after a recount--because more competitive elections are closer, and those often trigger recounts and possible litigation.

It might be that, on the whole, voters, as a policy matter, as Arizonans did, prefer competitive elections. But it shouldn't be seen as a costless decision.

Thoughts before today's oral argument in the Arizona redistricting case

Over a year ago, I flagged an underdiscussed case in which Arizona's legislature case challenged the power of a ballot initiative-created redistricting commission to draw congressional districts. The Arizona legislature lost below, hired Paul Clement to help brief the case, and finds itself before the United States Supreme Court today.

There's much to say about this case before oral argument (for a taste of some interesting things already said, see George Will, Michael Ramsey, and Will Baude), but I'm going to highlight a few things to look for.

First, the Court added a question asking whether the legislature had standing to bring this lawsuit. I think the answer is probably yes, with little dissent, but how the Court goes about explaining standing in this case, and its implications in certiorari-pending cases like Hickenlooper v. Kerr, is of some interest.

Second, there's a possible statutory dodge. 2 U.S.C. § 2a(c) may include language broad enough to suggest that Congress authorized redistricting by any means permitted by law, including by ballot initiative. Or it might be deemed unconstitutional as a statute, as other portions of it have been. Or it might not be broad enough to be read that way. Or it might be unconstitutional to divest the legislature completely of its redistricting power. Or it might be that this Court, as it has done in other election cases, will adopt a saving statutory construction and generous dicta on the merits. How much traction any permutation of the statutory argument gets at oral argument will be of interest.

Third, how much will textual-oriented originalism square off against a bevy of alternative constitutional theories--including emphasis on functionalism, limiting principles, and consequentialism? Reading the briefs, I was struck at the stark contrast in arguments. "Legislature" should not be an overly complicated word to understand, particularly as used here and elsewhere in the Constitution. But the respondents briefs often quickly turned to one of these three notions.

My own views? They aren't very strong.

The first argument is a functionalist view of the word “Legislature.” It argues that the word is like a chameleon, adapting with each clause: in one part of the Constitution meaning an electoral body, in another place a ratifying body, and in this place a lawmaking body, which can include the people. But this argument relies more on language from a few previous, and somewhat sloppy, judicial opinions, and less on the text of the Constitution. (It's not hard, after all, to see places where a justice on the Court has used "State" when it should have used the word "Legislature.")

The second argument s a worry about a limiting principle. If “Legislature” means legislature, can the governor veto an election bill? Can an administrative agency regulate an election? Can a court interpret an election law? Those harder questions are best left to another day—here, the Arizona legislature has been frozen out of the redistricting process with no effective role, which, I think, is sufficient to succeed on a claim here.

The third, and most discussed in the briefs, is a consequentialist concern. The people, after all, have been amending election laws by ballot initiatives in many states for decades. If Arizona’s independent redistricting commission falls, other redistricting commissions might fall, too. And not just redistricting commissions—Oregon’s vote-by-mail system, Mississippi’s voter identification law, and California’s top-two primary system, were all enacted as popular ballot measures. And all would be threatened.

These laws would remain in effect for state legislative redistricting and state elections—they simply would not apply in federal elections. And these could be saved, of course. Congress could explicitly pass a law authorizing initiatives as a valid means of enacting federal election laws (assuming that there's not greater constitutional issue with such a law), or the state legislatures themselves could ratify the laws enacted via initiative.

But the consequentialist concern may worry members of the Court—indeed, it often appears to drive judicial decisionmaking in high-stakes litigation. These, to me, are some of the worst kinds of constitutional arguments. Judges aren't supposed to sit in the position of worrying that if they follow the text of the Constitution, something undesirable may follow, and so they should ignore it to prevent the undesirable thing. But I imagine that this may be one of the things most emphasized at oral argument--more so than line drawing, a question of what happens next if the Arizona legislature wins?

I'm attending a conference much of the day and won't have prompt access to the oral argument transcript, but I'll offer my thoughts on it late today.

Fictional Attorney of the Month: Atticus Finch

Few fictional lawyers are recalled as readily and as fondly as Atticus Finch. It helps that he is the star of both a Pulitzer Price-winning novel, published by Harper Lee in 1960 and assigned to most school children in middle or high school, and of a popular 1962 film adaptation featuring Gregory Peck, who won an Academy Award for his role.

With so much written about his fictional lawyer, it's a challenge to write something novel and valuable. He is perhaps so memorable for his astonishing integrity. Lawyers of integrity, bent upon observance of the rule of law, have a particular mythology about them: consider Thomas More succumbing to the deeds of Henry VIII, John Adams representing soldiers involved in the Boston Massacre, and Robert Jackson prosecuting war criminals at Nuremburg. These, of course, are all real examples. Lawyers in fiction, for some reason, often do not draw artistic depictions of similar scope--or, perhaps, because it is too challenging to do in fiction without feeling forced.

But Atticus Finch rises above "majority rule" in Maycomb County, taking on the defense of a black man who has been accused of raping a white woman. He is deeply empathetic in representing his client. He communicates moral values clearly, and quietly, to his children and those around him, even if he often does not use words. And in anticipation of reading more about him in a second Harper Lee novel this summer, he's the Fictional Attorney of the Month.

No substantive changes in Voting Rights Amendment Act of 2015 over last year

Last week, Representative James Sensenbrenner introduced the Voting Rights Amendment Act of 2015, H.R. 885. I compared the bill with last year's version, the Voting Rights Amendment Act of 2014, H.R. 3899. Apart from the year in the title and the initial list of co-sponsors, there are no substantive changes, and only a couple of very minor alterations at all.

First, the bill formerly cited Title 42, the old home of the provisions of the Voting Rights Act. Since there is now a compilation of election laws in Title 52, the new bill properly identifies all of the Title 52 provisions that would be amended.

Second, there were two definitions of "minority" and "nomminority" that referred to persons who were "white." Those have been amended to capitalize the W and read "White."

And that's it. So if you had any praises or criticisms of last year's version of the VRAA, know that they are just as applicable to this year's version.

Can foreign governments fund Hillary Clinton's presidential campaign?

The Wall Street Journal recently reported that foreign governments have increasingly been funding the Clinton Foundation since the organization, a non-profit operated by members of the Clinton family, recently began again accepting contributions from those governments. The Journal notes, "Recent donors include the United Arab Emirates, Saudi Arabia, Oman, Australia, Germany and a Canadian government agency promoting the Keystone XL pipeline."

As Hillary Clinton faces a prospective presidential campaign ahead, could these foreign governments fund her campaign?

The answer is no--foreign nationals may only give money to the Clintons' non-profit for its activities.

Despite raising half a billion dollars from foreign nationals, including foreign governments, in the last two decades, the Clintons cannot use money from foreign nationals to fund a federal election. The ban on foreign campaign contributions and expenditures stretches back nearly fifty years.

Some may remember President Barack Obama's State of the Union address in 2010, in which he criticized the Supreme Court's decision in Citizens United v. FEC (PDF) for a decision, he claimed, that "will open the floodgates for special interests– including foreign corporations – to spend without limit in our elections." Justice Samuel Alito visibly disagreed, PolitiFact found the claim "mostly false," and, shortly thereafter, the Supreme Court summarily affirmed the ban.

Foreign governments, then, may contribute to non-profits in the United States, like the Clinton Foundation. But they cannot contribute money to politicians or political action committees. And because the Clinton Foundation is organized as a 501(c)(3), the Foundation cannot engage in political campaigning. (There are political activities that foreign governments and non-profits can engage in, but they much narrower than activities related to specific candidates: they are usually tied to specific issues, like a ballot measure, or to non-partisan or general "awareness" activities.)

The only issue, then, is not a legal risk, but merely one of appearance--that a prospective presidential candidate is simultaneously heading a non-profit that is accepting contributions from foreign governments. And whether one views that as a real or potential conflict of interest or ethical dilemma is, I suppose, a matter of perspective.

Correcting the National Jurist piece on bar pass rates

In its February 2015 issue, National Jurist published a story about bar pass rates. It quoted my earlier work on the subject. But, apparently, the editing process at the magazine is relatively slow and does not respond to new information well. For some time, I suspected the NCBE had some role in the decline in the bar pass rates (which National Jurist notes). But after the NCBE provided additional data in December 2014, I was convinced that much of the decline could be attributed to a decline in student quality. For more on this area, consider my previous posts about the bar exam.

Fictional Attorney of the Month: Evangeline Whedon

Evangeline "Vange" Whedon is an attorney in the Marvel Comics Universe. She was a successful prosecutor until she was discovered to be a mutant--when she comes into contact with blood, she has the power to shapeshift into a red dragon.

After the discovery, she lost her job as a prosecutor and was estranged from her family. She now represents the X-Men in a variety of legal battles (no doubt illustrating the versatility of an ideal legal professional).

In one case, for instance, she helps an anti-mutant terrorist secure a reduced sentence of probation as the X-Men give the terrorist a second change and hire her to work for them. Vange served as in-house counsel for the X-Corporation, a support agency for mutant populations around the world. She also helps with a number of family law disputes to ensure that child mutants whose parents disown them have new legal guardians.  In one critical legal dispute, she ensures that a child mutant in the custody of the X-Men remains in their custody after the child's parents, who had previously given him away, engage in a custody dispute.

Not all attorneys can shapeshift into dragons, but it's this versatility that set her apart. Vange Whedon is this month's Fictional Attorney of the Month.