I was planning to write a post on how the Constitution uses the word “legislature,” but after reading Chief Justice Hughes’ opinion for the Court in Smiley v. Holm, 285 U.S. 355 (1932), I think that is unnecessary. Hughes does a good job of laying out the arguments in the context of Article One, Section Four. Let me summarize the case and then explain why Smiley‘s holding should be extended in Arizona State Legislature (the congressional redistricting case that the Supreme Court just decided to hear).
After the 1930 Census, the Minnesota Legislature passed a congressional redistricting plan that was vetoed by the Governor. One branch of the legislature then passed a resolution ordering the Secretary of State to implement the plan in spite of the veto. A suit was filed challenging this plan as unlawful, and the counterargument was that Article One, Section Four gave the Legislature exclusive authority over congressional districting. The Supreme Court held that the Legislature’s position was without merit. In part, this was because longstanding practice in the states was that governors could veto in congressional redistricting legislation. The Court also said that there was “no suggestion in the federal constitutional provision of an attempt to endow the legislature of the state with power to enact laws in any manner other than that in which the constitution of the state has provided that laws shall be enacted.”
The Arizona case can be distinguished from Holm in two ways. First, there is no longstanding practice for states to remove by constitutional amendment the power of the legislature to undertake congressional redistricting. Second, one could say that the dictum just quoted assumes that the legislature will play a role in redistricting by referring to laws that are being enacted. If the state constitution gives that power exclusively to a special commission, then law is not being enacted in the ordinary way. On the other hand, the dictum can be read broadly to mean “whatever the State Constitution says on this question is consistent with the Federal Constitution.” Here the Arizona Constitution is provided that no laws on congressional redistricting shall be enacted. End of story.
Why do I think that the latter interpretation is better? Mainly on structural grounds. The remedy for partisan gerrymandering cannot be placed within the authority of the institution that does the gerrymandering. In practice, there is no judicial review of partisan gerrymandering claims and Congress will not act. Thus, the only plausible remedy is through an initiative or referendum in states that permit them. There is the argument that a state can limit partisan gerrymandering in its constitution while still letting the legislature draw district lines. Perhaps the Arizona referendum goes too far by cutting out the Legislature entirely. The problem is that state constitutional provisions on partisan gerrymandering (such as in Florida) have not led to any meaningful relief, so I’m not sure this option is real.
This will be a fascinating case if the Court reaches the merits. I must admit that my thoughts on this issue have changed as I’ve worked through the materials. At first I was sure that the Arizona amendment was constitutional. Now I have doubts, though I still think on balance that this amendment is constitutional.