Is The Hawaii Reapportionment Commission About To Go The Way Of The 'O'o Bird?
by Robert Thomas, InverseCondemnation, March 3, 2015
Spurred by yesterday's battle-of-the-titans Supreme Court oral arguments (Clement vs. Waxman) in a case we've been following, we're taking a short diversion from our usual fare of takings, eminent domain, and land use law today to cover another topic that long-time followers know is also within our area of practice: voting and election law.
The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, an actual appeal to the Supreme Court from a three-judge district court, one of the few places left in the law where that can still happen. The Question Presented boils down to the meaning of "legislature" as used in the Elections Clause: does the requirement that "the Legislature" determine the time, place, and manner of congressional elections mean that those states which redistrict and reapportion by way of Commission or other non-legislative means are using an unconstitutional processes?
In a provision added by citizen initiative, the Arizona Constitution removes all authority to prescribe legislative and congressional redistricting from the Arizona State Legislature and places it in an unelected commission. The Legislature challenges this provision as to congressional redistricting as a violation of Article I, section 4, the Elections Clause of the United States Constitution. In a 2-1 decision, a three-judge panel of the District Court for the District of Arizona ruled that removing the Legislature did not violate the Elections Clause. The Question Presented is:
Does the provision of the Arizona Constitution that divests the Arizona Legislature of any authority to prescribe congressional district lines violate the Elections Clause of the United States Constitution, which requires that the time, place, and manner of congressional elections be prescribed in each state by the "Legislature thereof”?
FURTHER CONSIDERATION OF THE QUESTION OF JURISDICTION IS POSTPONED TO THE HEARING OF THE CASE ON THE MERITS LIMITED TO THE FOLLOWING QUESTIONS: 1) 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? 2) DOES THE ARIZONA LEGISLATURE HAVE STANDING TO BRING THIS SUIT?
According to reports from yesterday's oral arguments, the Justices exhibited "doubts" and "appeared skeptical" of arguments in support of commissions. See "U.S. justices raise doubts about Arizona redistricting commission" (Reuters), and "Argument analysis: Literalism vs. the power of the people" (SCOTUS blog) ("What seemed like a majority shied away from the idea that the voters of a state could seize power away from their legislature, and lodge that authority elsewhere in government more pleasing to the people.").
Should the Court rule that Arizona's Redistricting Commission is unconstitutional and conclude that Congressional redistricting can only be accomplished by the legislature, where would that leave Hawaii's Reapportionment Commission, which was drafted by the 1978 Hawaii Constitutional Convention, and added to the Hawaii Constitution by a subsequent vote of the people? Our commission is constituted in much the same manner as Arizona's: under article IV, section 2 of the Hawaii Constitution, eight of the Commission's nine members are selected by members of the Legislature, with the ninth member being selected (and designated Chair) by the eight:
The commission shall consist of nine members. The president of the senate and the speaker of the house of representatives shall each select two members. Members of each house belonging to the party or parties different from that of the president or the speaker shall designate one of their number for each house and the two so designated shall each select two members of the commission. The eight members so selected, promptly after selection, shall be certified by the selecting authorities to the chief election officer and within thirty days thereafter, shall select, by a vote of six members, and promptly certify to the chief election officer the ninth member who shall serve as chairperson of the commission.
This and other similarities between the Hawaii and Arizona systems are noted in the amici brief in support of the Arizona commission filed by the states which employ some system other than redistricting by the legislature. Like Arizona's commission, Hawaii's is expressly tasked with redrawing Congressional district lines for the U.S. House of Representatives, in addition to redistricting Hawaii state Senate and House districts. There's no chance for the governor to veto a plan.
Were the Court to issue the broad ruling which the Arizona Legislature seeks, that would likely mean that no later than June (when the Court will issue its opinion in the Arizona case) Hawaii's Reapportionment Commission will go the way of the of the now-extinct 'o'o, described by Wikipedia as a bird whose "striking plumage was used for 'a'ahu ali'i (robes), 'ahu 'ula (capes), and kahili (feathered staffs) of ali'i (Hawaiian nobility)." at least in its present role in Congressional redistricting. Such a ruling would likely not impact the Commission's duties to redraw districts for the Hawaii Senate and House, however, leaving us with a split process.
We don't know whether the Founders who drafted the Elections Clause would approve of the "good government" and purportedly nonpartisan vibe of commissions, or whether it was part of their plan of checks-and-balances and republican government that drawing the lines for seats in Congress would be subject to the sharp elbows and political influences that come with the territory when a state legislature is doing such things. But we do know that come June, we'll be watching for more guidance from the Supreme Court.
More to come, so stay tuned.