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.