This term, the Supreme Court takes up the issue of what the Constitution’s Elections Clause means when it says that the ”Times, Places, and Manner of holding Elections . . . shall be prescribed in each State by the Legislature thereof.” (Article I, sec. 4)
The case could be momentous, invalidating not only redistricting commissions in Arizona, California, and other states but also striking down a host of other election laws enacted by voters using ballot initiatives.
The case has drawn 16 amicus or ”friend of the court” briefs — two supporting the Arizona Legislature and fourteen supporting the Commission. Here’s an overview of what they have to say.
For the Appellant — the Arizona State Legislature
This brief argues that the term “legislature” should be given the same meaning as elsewhere in the Constitution and read to mean a state’s primary lawmaking body. To give effect to this reading, the brief calls the Court to overturn its 1916 ruling in Ohio ex rel. Davis v. Hildebrant.
National Conference of State Legislatures:
This brief argues that, regardless of how redistricting commissions are created, state legislatures must retain a substantive role in approving congressional maps. It argues that, of the current redistricting commissions, on those of Arizona and California fail to do so. Gilbert LLP is counsel on the brief.
For Appellees — the Arizona Independent Redistricting Commission, et al.:
This brief takes a historical perspective in analyzing how the Elections Clause and the term “legislature” were understood when the Framers were drafting and debating the Constitution, as well as in the time since, including at the time of Arizona’s admission to the Union. It argues that the Elections Clause should be interpreted “in light of its text, purposes, and ‘our whole experience’ as a Nation,” including longstanding historical understandings and practices.
United States Solicitor General:
This brief argues that Appellant lacks standing to bring this suit because any injury is speculative and, regardless, a federal district court is not the proper place for an intrastate dispute between Arizona’s political actors to be heard. Even if Appellant has standing, the U.S. Solicitor General’s brief continues, the Redistricting Commission has the authority to draw Arizona’s congressional districts under 2 U.S.C. § 2a(c).
Arizona Proponents of Proposition 106:
This brief details the origins and subsequent use of Arizona’s direct democracy mechanisms. It characterizes the Commission as simply the State’s latest example of voter-initiated and approved elections reform. Morrison & Foerster is co-counsel on the brief along with the Arizona Center for Law in the Public Interest and Coppersmith Bockelman.
California Citizens Redistricting Commission:
This brief argues that, in states that allow initiatives, the power of citizens to enact laws and amend the state constitution is equal that of elected state representatives, and it does not violate federal law when citizens exercise their legislative power in this manner. The brief also discusses the operation of California’s independent redistricting commission.
Campaign Legal Center, League of Women Voters, ACLU, Common Cause, Democracy 21:
This brief describes the harms that partisan gerrymandering inflicts on American democracy and argues that allowing the people to exercise their lawmaking power — just as the citizens of Arizona did by creating the Arizona Independent Redistricting Commission — is a legitimate alternative to judicial recourse in the context of redistricting. Jenner & Block is counsel on the brief.
Former Governors of California George Deukmejian, Pete Wilson, and Arnold Schwarzenegger; Charles T. Munger, Jr.; Bill Mundell; and California Chamber of Commerce:
This brief argues that it is clear from the text, structure, and history of the Elections Clause that citizens of a state may authorize independent redistricting commissions, like those in Arizona and California. The brief continues by highlighting the history and effects of gerrymandering in California, showing that the states’ successful reform efforts would not have been possible without the flexibility afforded by citizen initiative. Gibson, Dunn & Crutcher is counsel on the brief.
Former Governor of Illinois Jim Edgar, et al.:
This brief argues that states should retain the sole authority to determine the structure and processes of state government. After discussing the history partisan gerrymandering in Illinois and its harmful effects, the brief urges the Court to preserve citizen initiatives as a viable reform mechanism in order to maximize states’ flexibility to address issues in the future. Sidley Austin is counsel on the brief.
This brief demonstrates the belief that sovereignty ultimately rests in the people (rather than in the governments of the States) was one of the fundamental tenants of the Founding Era. The Elections Clause is consistent with this concept —by limiting the power of state legislatures to pass elections regulations — the Framers were trying to protect norms of equal representation. The brief continues, arguing that the modern initiative process is fully consistent with the Framers’ views on popular sovereignty and delegated political authority. Mayer Brown is counsel on the brief, which is signed by historians Jack N. Rakove, Richard R. Beeman, Alexander Keyssar, Peter S. Onuf, and Rosemarie Zagarri.
This brief from members of Congress argues that the Elections Clause grants Congress broad authority, which it has used to permit states to redistrict via initiative. Furthermore, having the people control the state redistricting process is fully consistent with federalism principles — indeed, the independent redistricting commission is a positive, democracy-promoting innovation. Vinson & Elkins is counsel on the brief which is signed by the following United States Representatives: Julia Brownley (D-CA), Ken Calvert (R-CA), Steven Cohen (D-TN), Jim Cooper (D-TN), Rodney Davis (R-IL), Keith Ellison (D-MN), Alan Grayson (D-FL), Raul Grijalva (D-AZ), Richard Hanna (R-NY), Duncan D. Hunter (R-CA), Derek Kilmer (D-WA), Zoe Lofgren (D-CA), Alan Lowenthal (D-CA), Tom McClintock (R-CA), Mark Meadows (R-NC), Beto O’Rourke (D-TX), David E. Price (D-NC), Tom Reed (R-NY), Reed Ribble (R-WI), and Dana Rohrabacher (R-CA).
Nathaniel Persily, Bruce E. Cain, Bernard Grofman:
This brief defends the tradition of allowing states to act as laboratories of democracy and experiment, experimenting with different rules and institutions to conduct redistricting. The brief then argues initiatives, referendums, and other tools of direct democracy have proven to be particularly effective means of enacting reform.
Scholars and Historians of Congressional Redistricting:
This brief argues that the Supreme Court can decide the case based on statutory rather than constitutional grounds because of Congress’s passage of the Apportionment Act of 1911, in which Congress spoke of redistricting being done by states “in the manner provided by the law thereof.” Paul, Weiss, Rifkind, Wharton & Garrison LLP is counsel on the brief, which is signed by Justin Levitt, J. Morgan Kousser, and Peter H. Argersinger.
State and Local Elected Officials:
This brief from state and local elected officials argues that the Elections Clause permits each state to establish its own processes for holding congressional elections. Arizona voters, the brief continues, properly exercised their power under the Elections Clause to address the problem of partisan gerrymandering and adopting Appellant’s rule would threaten similar efforts by other states as well as a host of other elections-related reforms. Sullivan & Cromwell is counsel on the brief, which is signed by Washington Secretary of State Kim Wyman, former Mayor Michael Bloomberg, former Rhode Island Governor Lincoln Chafee, former Arizona Attorney General Terry Goddard, former Washington Governor Christine Gregoire, former New Mexico Attorney General Gary King, former Washington Attorney General Rob McKenna, former Arizona Governor Janet Napolitano, former Maryland Governor Martin O’Malley, former Washington Secretary of State Sam Reed, former Pennsylvania Governor Edward Rendell, former Montana Supreme Court Justice Jim Regnier, former New York Attorney General Dennis Vacco, and former Arizona Attorney General Grant Woods.
State Attorneys General (CA, CO, CT, HI, ID, MA, MS, NM, NY, OR, PA, VA):
This brief argues that states have broad freedom under the Constitution to structure their lawmaking process to suit their needs, with many states choosing to vest legislative power in the people at-large through referendum and initiative processes. It then discusses the wide-sweeping implications that the Arizona Legislature’s argument has for other states that have also enacted election laws (such as California’s top two primary or Mississippi’s voter ID law) by initiative. The Washington Attorney General’s office is counsel on the brief, which is joined the Attorneys General in by California, Colorado, Connecticut, Hawaii, Idaho, Massachusetts, Mississippi, New Mexico, New York, Oregon, Pennsylvania, and Virginia.
Thomas Mann and Norman Ornstein:
This brief argues that gerrymandering distorts the democratic process by perpetuating political dysfunction. Independent redistricting commissions like Arizona’s, the brief continues, represent a promising means to address this problem. Hogan Lovells is counsel on the brief.