Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n

• Citation: 576 U.S. 787,192 L.Ed.2d 704,135 S.Ct. 2652
• Decision Date: 29 June 2015
• Docket Number: No. 13–1314.,13–1314.
• Parties: ARIZONA STATE LEGISLATURE, Appellant v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION et al.
• Court: United States Supreme Court

576 U.S. 787

135 S.Ct. 2652

192 L.Ed.2d 704

ARIZONA STATE LEGISLATURE, Appellant

v.ARIZONA INDEPENDENT REDISTRICTING COMMISSION et al.

No. 13–1314.

Supreme Court of the United States

Argued March 2, 2015.

Decided June 29, 2015.

Paul D. Clement, Washington, DC, for Appellant.

Eric J. Feigin for the United States as amicus curiae, by special leave of the Court, supporting the appellees.

Seth P. Waxman, Washington, DC, for Appellees.

Joseph A. Kanefield, Brunn W. Roysden III, Ballard Spahr LLP, Phoenix, AZ, Mary R. O'Grady, Counsel of Record, Joseph N. Roth, Osborn Maledon, P.A., Phoenix, AZ, for Appellees.

Peter A. Gentala, Pele Peacock Fischer, Lesli M. H. Sorensen, Office of the Speaker, Arizona House of Representatives, Phoenix, AZ, Gregrey G. Jernigan, Office of the President, Arizona State Senate, Phoenix, AZ, Paul D. Clement, Counsel of Record, George W. Hicks, Jr., Taylor Meehan, Raymond P. Tolentino, Bancroft Pllc, Washington, DC, Joshua W. Carden, Marshall R. Hunt, Davis Miles McGuire Gardner, PLLC, Tempe, AZ, for Appellant.

Joshua W. Carden, Marshall R. Hunt, Davis Miles McGuire, Gardner PLLC, Tempe, Arizona, Gregrey G. Jernigan, Office of the President, Arizona State Senate, Phoenix, AZ, Peter A. Gentala, Counsel of Record, Pele Peacock Fischer, Lesli M. H. Sorensen, Office of the Speaker, Arizona House of Representatives, Phoenix, Arizona, for Appellant.

Justice GINSBURG delivered the opinion of the Court.

This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.¹ "[P]artisan gerrymanders," this Court has recognized, "[are incompatible] with democratic principles." Vieth v. Jubelirer, 541 U.S. 267, 292, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion); id., at 316, 124 S.Ct. 1769 (KENNEDY, J., concurring in judgment). Even so, the Court in Vieth did not grant relief on the plaintiffs' partisan gerrymander claim.

The plurality held the matter nonjusticiable. Id., at 281, 124 S.Ct. 1769. Justice KENNEDY found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation. Id., at 317, 124 S.Ct. 1769.

In 2000, Arizona voters adopted an initiative, Proposition 106, aimed at "ending the practice of gerrymandering and improving voter and candidate participation in elections." App. 50. Proposition 106 amended Arizona's Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission, the Arizona Independent Redistricting Commission (AIRC or Commission). After the 2010 census, as after the 2000 census, the AIRC adopted redistricting maps for congressional as well as state legislative districts.

The Arizona Legislature challenged the map the Commission adopted in January 2012 for congressional districts. Recognizing that the voters could control redistricting for state legislators, Brief for Appellant 42, 47; Tr. of Oral Arg. 3–4, the Arizona Legislature sued the AIRC in federal court seeking a declaration that the Commission and its map for congressional districts violated the "Elections Clause" of the U.S. Constitution. That Clause, critical to the resolution of this case, provides:

"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...." Art. I, § 4, cl. 1.

The Arizona Legislature's complaint alleged that "[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people," App. 21, ¶ 37; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, "the Legislature " is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves.

A three-judge District Court held, unanimously, that the Arizona Legislature had standing to sue; dividing two to one, the Court rejected the Legislature's complaint on the merits. We postponed jurisdiction and instructed the parties to address two questions: (1) Does the Arizona Legislature have standing to bring this suit? (2) Do the Elections Clause of the United States Constitution and 2 U.S.C. § 2a(c) permit Arizona's use of a commission to adopt congressional districts? 573 U.S. ––––, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014).

We now affirm the District Court's judgment. 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.

I

A

Direct lawmaking by the people was "virtually unknown when the Constitution of 1787 was drafted." Donovan & Bowler, An Overview of Direct Democracy in the American States, in Citizens as Legislators 1 (S. Bowler, T. Donovan, & C. Tolbert eds. 1998). There were obvious precursors or analogues to the direct lawmaking operative today in several States, notably, New England's town hall meetings and the submission of early state constitutions to the people for ratification. See Lowell, The Referendum in the United States, in The Initiative, Referendum and Recall 126, 127 (W. Munro ed. 1912) (hereinafter IRR); W. Dodd, The Revision and Amendment of State Constitutions 64–67 (1910).² But it was not until the turn of the 20th century, as part of the Progressive agenda of the era, that direct lawmaking by the electorate gained a foothold, largely in Western States. See generally Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich. L. & Pol'y Rev. 11 (1997).

The two main "agencies of direct legislation" are the initiative and the referendum. Munro, Introductory, in IRR 8. The initiative operates entirely outside the States' representative assemblies; it allows "voters [to] petition to propose statutes or constitutional amendments to be adopted or rejected by the voters at the polls." D. Magleby, Direct Legislation 1 (1984). While the initiative allows the electorate to adopt positive legislation, the referendum serves as a negative check. It allows "voters [to] petition to refer a legislative action to the voters [for approval or disapproval] at the polls." Ibid. "The initiative [thus] corrects sins of omission" by representative bodies, while the "referendum corrects sins of commission." Johnson, Direct Legislation as an Ally of Representative Government, in IRR 139, 142.

In 1898, South Dakota took the pathmarking step of affirming in its Constitution the people's power "directly [to] control the making of all ordinary laws" by initiative and referendum. Introductory, id., at 9. In 1902, Oregon became the first State to adopt the initiative as a means, not only to enact ordinary laws, but also to amend the State's Constitution. J. Dinan, The American State Constitutional Tradition 62 (2006). By 1920, the people in 19 States had reserved for themselves the power to initiate ordinary lawmaking, and, in 13 States, the power to initiate amendments to the State's Constitution. Id., at 62, and n. 132, 94, and n. 151. Those numbers increased to 21 and 18, respectively, by the close of the 20th century. Ibid.³

B

For the delegates to Arizona's constitutional convention, direct lawmaking was a "principal issu[e]." J. Leshy, The Arizona State Constitution 8–9 (2d ed. 2013) (hereinafter Leshy). By a margin of more than three to one, the people of Arizona ratified the State's Constitution, which included, among lawmaking means, initiative and referendum provisions. Id., at 14–16, 22. In the runup to Arizona's admission to the Union in 1912, those provisions generated no controversy. Id., at 22.

In particular, the Arizona Constitution "establishes the electorate [of Arizona] as a coordinate source of legislation" on equal footing with the representative legislative body. Queen Creek Land & Cattle Corp. v. Yavapai Cty. Bd. of Supervisors, 108 Ariz. 449, 451, 501 P.2d 391, 393 (1972) ; Cave Creek Unified School Dist. v. Ducey, 233 Ariz. 1, 4, 308 P.3d 1152, 1155 (2013) ("The legislature and electorate share lawmaking power under Arizona's system of government." (internal quotation marks omitted)). The initiative, housed under the article of the Arizona Constitution concerning the "Legislative Department" and the section defining the State's " legislative authority," reserves for the people "the power to propose laws and amendments to the constitution." Art. IV, pt. 1, § 1. The Arizona Constitution further states that "[a]ny law which may be enacted by the Legislature under this Constitution may be enacted by the people under the Initiative." Art. XXII, § 14. Accordingly, "[g]eneral references to the power of the ‘legislature’ " in the Arizona Constitution "include the people's right (specified in Article IV, part 1) to bypass their elected representatives and make laws directly through the initiative." Leshy xxii.

C

Proposition 106, vesting redistricting authority in the AIRC, was adopted by citizen initiative in 2000 against a "background of recurring redistricting turmoil" in Arizona. Cain, Redistricting Commissions: A Better Political Buffer? 121 Yale L. J. 1808, 1831 (2012). Redistricting plans adopted by the Arizona Legislature sparked controversy in every redistricting cycle since the 1970's, and several of those plans were rejected by...