The Arizona Legislature asked the U.S. Supreme Court on Monday to give its members back the right to draw the lines for the state's nine congressional districts.
Attorneys for both the House and Senate contend a panel of three federal judges erred two months ago in declaring that the voters of Arizona had the right to take that power from lawmakers and instead give it to a five-member Independent Redistricting Commission. They want the high court to overrule that decision — and effectively void a key provision of the 2000 law that created the commission.
It almost certainly is too late to affect this year's congressional races, with the primary only four months away. But if the plea is successful it would permit the Republicans who control the Legislature to scrap the current lines — lines that resulted in a 5-4 Democrat-Republican split in the congressional delegation — and redraw them more to their liking ahead of the 2016 election.
Attorneys for the commission likely will have several weeks to respond with their own legal arguments.
Prior to 2000 it was up to the Legislature to draw lines not only for their own districts but also for the congressional races.
That changed with approval of the 2000 initiative. Proponents argued that the five-member panel — four chosen by leaders of each major party and those four selecting a fifth — would remove some of the politics from the process.
Two years ago, attorneys for the Legislature filed suit challenging the ballot measure, citing a federal constitutional provision saying that the “times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the Legislature thereof.” That, they argued, left the commission powerless to set congressional lines.
But U.S. District Court Judge Murray Show, writing in February for the majority of the three-judge panel, noted that Arizona voters used their state constitutional power to make their own laws and constitutional amendments to give that power to the commission.
Murray said he reads nothing in the U.S. Constitution that precludes the voters, as the ultimate lawmakers, from doing what they did. He said that makes the lines the commission drew for the state's nine congressional districts legal and enforceable.
Now attorneys for the Legislature are want the high court to overturn that ruling, saying the plain language of the U.S. Constitution gives the power to “the Legislature” and not more generically to the legislative process which can include the voters themselves.
“’Legislature’ means lawmaking body,” said Peter Gentala, legal counsel for the state House and one of the attorneys seeking Supreme Court review. “There's only one lawmaking body in Arizona that fashions the laws of the people.”
The 2000 ballot measure does not totally eliminate legislative involvement in the redistricting process. It does require the commission to “consider” any suggestions from lawmakers.
“But there is no consequence if it does not,” the legislative attorneys wrote. “And it may summarily reject them.”
Attorneys for the lawmakers said that “token participation” does not bring Arizona's redistricting process into compliance with the constitutional language that congressional lines are drawn “by the Legislature.”
That February ruling by the three-judge panel was not unanimous. Judge Paul Rosenblatt sided with lawmakers, writing that the 2000 ballot measure empowering the commission to draw those lines amounts to an “evisceration” of the sole legal right of the Legislature to make that decision.
There are arguably political reasons behind the lawsuit by the legislative GOP leadership.
During arguments earlier this year before the three-judge panel in Phoenix, commission attorney Mary O'Grady pointed out that the Legislature never challenged the 2000 ballot measure when it was first approved — and when the congressional maps crafted by the commission a decade ago were more favorable to Republicans. It was only when they did not like the most recent result that Republicans who control that the Legislature raised the issue of their rights under the U.S. Constitution being ignored.
There is a separate lawsuit pending in Maricopa County Superior Court challenging the congressional lines based on claims the commission did not follow procedures. And even if challengers win, that would simply send the maps back to the same commission to redraw.
Neither lawsuit would affect the other half of the 2000 ballot measure empowering the commission to draw lines for the state's 30 legislative districts. That is playing out in a separate federal court lawsuit where Republican interests are trying to void those lines amid charges that the commission created districts of unequal population to give Democrats a political edge.