The always insightful Mike Ramsey has posted about my posts about the Arizona State Legislature case. I thought I would offer a couple of further comments.
In several places the Constitution clearly says that only “the Legislature” can do something. For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” I submit that this is not clear as Mike suggests. Why is that? Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V. As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.
Does this principle include a state constitution that drastically reduces the Legislature’s role in an unprecedented way? I’m not sure. The Arizona scheme may go too far given the text and the Court’s holding in Holm, but I don’t see an originalist ground to object. Were the Framers opposed to state referenda for regulating elections? I doubt that you can find any evidence for that. In that sort of vacuum, I think it is relevant to point out the policy implications of saying that the remedy for partisan gerrymandering lies only with the legislature doing the partisan gerrymandering. That is not, as Mike says, “purely an argument from policy.” Moreover, Congress could have exercised its Article I, Section 4 powers to bar independent commissions mandated by a state constitution for redistricting. It has not done so. A judicial decision doing so would (as I said in my last post) create a “Dormant Elections Clause,” which I do not think is consistent with any original understanding.
All of this leads me to the conclusion (albeit marginally) that the Arizona plan is constitutional. What would change my mind? Probably learning something relevant about the history of state regulation of redistricting or the reasons behind the Framers’ choice to give Congress and state legislatures joint ownership over this power. So we’ll see what the briefs have to say.