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.