The U.S. Supreme Court could announce at its first public session of the year in October whether state lawmakers will get to redraw Arizona's congressional lines.
The justices have agreed to discuss on Sept. 29 a bid by the Legislature to void a provision of a 2000 voter-approved measure giving power to set the lines to the Independent Redistricting Commission. That is a closed-door conference.
That, however, sets the stage for a decision a week later when, according to tradition, the high court convenes on the first Monday in October. Attorney Mary O'Grady, who represents the commission, said the justices could simply decide at that time, without further discussion, to affirm — or void — a lower court ruling on who has authority to craft congressional districts for 2016 and beyond.
The implications of either are significant.
A ruling summarily overturning the lower court would pave the way for the Republican-controlled Legislature to re-divide the state, but this time in a manner more favorable to the GOP. That likely would alter the current 5-4 split between Democrat and Republican members of the U.S. House.
But affirming the lower court leaves the decision in the hands of the commission — and leaves the lines where they are through at least the 2020 election.
It all could turn on the question of exactly who in Arizona is the “Legislature.”
Until 2000, state lawmakers had crafted the lines for both legislative and congressional races. That often resulted in districts designed to give the majority party and its candidates an advantage.
That year voters gave both jobs to a newly created five-member commission amid arguments it would reduce the effect of politics.
As required by law, new districts were crafted following the 2010 census and the state got another seat in the U.S. House. But Republican legislative leaders did not express concern — or file suit — until the first congressional race after that resulted in Democrats getting five of those nine seats.
Their legal argument is centered on that question of legislative authority.
In legal briefs, House staff attorney Peter Gentala pointed out to the justices that the Elections Clause of the U.S. Constitution spells out that “the times, places and manner of elections for senators and representatives shall be prescribed in each state by the Legislature thereof.” He said that means the lawmakers elected by voters — and not the commission.
But a majority of a three-judge panel which heard the case in Phoenix concluded it's not that simple. District Judge Murray Snow, writing that majority ruling, said the term “legislature” refers not to the 90 members but to the entire lawmaking process of the state.
“Since its inception, the Arizona Constitution has reserved the initiative power to its people,” Snow wrote. That includes the power of voters to make their own laws and state constitutional provisions.
In this case, the judge wrote, voters used that power to create the Independent Redistricting Commission.
“In fulfilling its function of establishing congressional and legislative districts, the IRC is acting as a legislative body under Arizona law,” Snow said.
Put simply, the judge said, the voters decided that, for purposes of redistricting, the commission is the legislature, and he said voters had the right to do that.
O'Grady said legal precedent is on the commission's side. She said federal courts, looking at the Elections Clause, has never ruled that only the elected legislators are empowered to draw boundaries.
Any ruling comes too late to help state House Speaker Andy Tobin who is hoping to become the Republican nominee for Congress from CD1. Whoever survives that race will face off against incumbent Democrat Ann Kirkpatrick.