Portal:Supreme Court of the United States

“ Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded.
The majority’s contrary understanding requires it to accept a definition of “the Legislature” that contradicts the term’s plain meaning, creates discord with the Seventeenth Amendment and the Constitution’s many other uses of the term, makes nonsense of the drafting and ratification of the Elections Clause, and breaks with the relevant precedents. In short, the effect of the majority’s decision is to erase the words “by the Legislature thereof” from the Elections Clause. ”

“ In the present case, however, the majority’s resolution of the merits question (“legislature” means “the people”) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice. ”

“ The majority largely ignores this evidence, relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy. Nowhere does the majority explain how a constitutional provision that vests redistricting authority in “the Legislature” permits a State to wholly exclude “the Legislature” from redistricting. Arizona’s Commission might be a noble endeavor—although it does not seem so “independent” in practice—but the “fact that a given law or procedure is efficient, convenient, and useful ... ”

“ Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congres­sional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animat­ing principle of our Constitution that the people them­selves are the originating source of all the powers of government. ”

“ But our inability to find a manageable standard in that area is no excuse to abandon a standard of meaningful interpretation in this area. This Court has stressed repeatedly that a law’s virtues as a policy innovation cannot redeem its inconsistency with the Constitution. “Failure of political will does not justify unconstitutional remedies.” ”

“ No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. ”

“ That doctrine of standing, that jurisdictional limitation upon our powers, does not have as its purpose (as the majority assumes) merely to assure that we will decide disputes in concrete factual contexts that enable “realistic appreciation of the consequences of judicial action,” ante, at 14. To the contrary. “ [T] he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U. S. 737, 752 (1984) . It keeps us minding our own business. ”

“ Mellon, 262 U. S. 447, 479–480 (1923) , we refused to allow a State to pursue its claim that a conditional congressional appropriation “constitute [d] an effective means of inducing the States to yield a portion of their sovereign rights.” (And Mellon involved a contention that one government infringed upon another government’s power—far closer to the traditional party-versus-party lawsuit than is an intragovernmental dispute.) ”

“ Reading today’s opinion, one would think the Court is a great defender of direct democracy in the States. As it reads “the Legislature” out of the Times, Places and Manner Clause, U. S. Const., Art. I, §4, the majority offers a paean to the ballot initiative. It speaks in glowing terms of the “characteristic of our federal system that States retain autonomy to establish their own governmental processes.” Ante, at 27. And it urges “ [d] eference to state lawmaking” so that States may perform their vital function as “ ‘laboratories’ ” of democracy. ”

“ The majority also points to a scattered array of election-related laws and constitutional provisions enacted via popular lawmaking that it claims would be “endangered” by interpreting the Elections Clause to mean what it says. Ante, at 33. Reviewing the constitutionality of these far-flung provisions is well outside the scope of this case. Suffice it to say that none of them purports to do what the Arizona Constitution does here: set up an unelected, unaccountable institution that permanently and totally displaces the legislature from the redistricting process. “ [T] his wolf comes as a wolf.” ”

“ None of those measures permit the state legislatures to override the people’s pre­scriptions. The Arizona Legislature’s theory—that the lead role in regulating federal elections cannot be wrested from “the Legislature,” and vested in commissions initiated by the people—would endanger all of them.
The list of endangered state elections laws, were we to sustain the position of the Arizona Legislature, would not stop with popular initiatives. Almost all state constitu­tions were adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.” ”

“ The next Section of Article I describes how to fill vacancies in the United States Senate: “if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” §3, cl. 2. [1] The references to “the Recess of the Legislature of any State” and “the next Meeting of the Legislature” are only consistent with an institutional legislature, and make no sense under the majority’s reading. ”

“ The Court’s response is not much better. The majority observes that “the Legislature” of a State may perform different functions under different provisions of the Constitution. Under Article I, §3, for example, “the Legislature” performed an “electoral” function by choosing Senators. The “Legislature” plays a “consenting” function under Article I, §8, and Article IV, §3; a “ratifying” function under Article V; and a “lawmaking” function under the Elections Clause. ”

“ I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could only attack the legislator only openly and directly, he would sometimes be afraid to oppose him ”

“ The very prospect of lawmaking by the people may influence the legislature when it considers (or fails to consider) election-related measures. See Persily & Anderson, Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform, 78 S. Cal. L. Rev. 997, 1006–1008 (2005) (describing cases in which “indirect pressure of the initiative process ... was sufficient to spur [state] legislature [s] to action”) . ”

“ Nothing in Hildebrant, Smiley, or any other precedent supports the majority’s conclusion that imposing some constraints on the legislature justifies deposing it entirely. *⁠*⁠* The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. ”

“ The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. ”

“ These sentiments are difficult to accept. The conduct of the Court in so many other cases reveals a different attitude toward the States in general and ballot initiatives in particular. Just last week, in the antithesis of deference to state lawmaking through direct democracy, the Court cast aside state laws across the country—many of which were enacted through ballot initiative—that reflected the traditional definition of marriage. ”

“ Our Declaration of Independence, ¶2, drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” ”

“ I, §4’s reference to “the Legislature” meant simply the “constituted authorities, through whom [the State] choose [s] to speak,” prime among them, the State’s Constitution, “which rises above ... all legislative action”) . Others anticipated that retaining the reference to “the legislature” would “condem [n] ... any [redistricting] legislation by referendum or by initiative.” 47 Cong. Rec. 3436 (statement of Sen. Burton) . In any event, proponents of the change maintained, “ [i] n view of the very serious evils arising from gerrymanders,” Congress should not “take any chances in [the] matter.” ”

“ He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice. ”

“ We hold, first, that the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of Proposition 106. Next, we hold that lawmaking power in Arizona includes the initiative process, and that both §2a (c) and the Elections Clause permit use of the AIRC in congressional districting in the same way the Commission is used in districting for Arizona’s own Legislature. ”

“ The cases cited to support this dictum fail to do so; they are merely cases where a determination of unconstitutionality is avoided by applying what there is no reason to believe is anything other than normal standing requirements. It seems to me utterly implausible that the Framers wanted federal courts limited to traditional judicial cases only when they were pronouncing upon the rights of Congress and the President, and not when they were treading upon the powers of state legislatures and executives. ”

“ As well in Arizona, the people may delegate their legislative authority over redistricting to an inde­pendent commission just as the representative body may choose to do. See Tr. of Oral Arg. 15–16 (answering the Court’s question, may the Arizona Legislature itself estab­lish a commission to attend to redistricting, counsel for appellant responded yes, state legislatures may delegate their authority to a commission, subject to their preroga­tive to reclaim the authority for themselves) . ”

“ We have always resolved those questions in the context of a private lawsuit in which the claim or defense depends on the constitutional validity of action by one of the governmental subunits that has caused a private party concrete harm. ”

“ For all Power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or op­posed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. ”

“ The Arizona Legislature maintains that the Elections Clause vests in it “primary responsibility” for redistricting. Brief for Appellant 51, 53. To exercise that responsibility, the Legislature urges, it must have at least the opportunity to engage (or decline to engage) in redistricting before the State may involve other actors in the redistricting process. See id., at 51–53. Proposition 106, which gives the AIRC binding authority over redistricting, regardless of the Legislature’s action or inaction, strips the Legisla­ture of its alleged prerogative to initiate redistricting. ”

“ State may be entitled in Congress, no district electing more than one Representative.” Act of Aug. 8, 1911, ch. 5, §§3–4, 37 Stat. 14. When a State’s apportionment of Representatives remained constant, the Act directed the State to continue using its pre-existing districts “until [the] State shall be redistricted as herein prescribed.” See §4, ibid. The 1911 Act did not address redistricting in the event a State’s apportionment of Representatives decreased, likely because no State faced a decrease following the 1910 census. ”

“ Undeniably, however, it was the very purpose of the measures to recognize the legislative authority each State has to determine its own redistricting regime. ↑ Illustrative of an embracive comprehension of the word “legisla­ture,” Charles Pinckney explained at South Carolina’s ratifying conven­tion that America is “ [a] republic, where the people at large, either collectively or by representation, form the legislature.” 4 Debates on the Federal Constitution 328 (J. Elliot 2d ed. 1863) . ”

“ That adds up to two votes to affirm on the merits, two to reverse on the merits (without discussing standing) and four to dismiss for lack of standing. Justice Stanley Reed, who was on the Court and apparently participated in the case, is not mentioned in any of the opinions recorded in the United States Reports. So, in order to find Coleman a binding precedent on standing, rather than a 4-to-4 standoff, one must assume that Justice Reed voted with Hughes. ”

“ Clinton, 566 U. S. ___ (2012) (slip op., at 5) —Coleman’s discussion of the additional jurisdictional issue of standing was quite superfluous and arguably nothing but dictum. The peculiar decision in Coleman should be charitably ignored.
The Court asserts, quoting Raines, 521 U. S., at 819–820, that the Court’s standing analysis has been “especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Ante, at 14, n. 12. ”