Breaking: #SCOTUS Upholds Independent AZ Redistricting Commission 5-4

You can read the 5-4 opinion here.

I will have a piece posting soon at Slate on the larger meaning of the case, but here are some thoughts in the interim:

1. The key holding (aside from standing): AZ voters have the power to set up an independent redistricting commission, which completely cuts the AZ Legislature out of the process for drawing congressional districts, despite language in the Elections Clause of the Constitution granting to each state’s “Legislature” the power to set the rules for congressional elections, subject to congressional override.

2.  This is a huge victory not only for those who support redistricting commissions, but those who want to see election reforms done with the use of the initiative process and other tools for direct democracy. This case makes it clear that state Constitutions enacting rights to vote and other election rules applicable to federal elections are safe from an Elections Clause challenge.  This is a huge relief.

3. The result here was somewhat of a surprise, given Justice Kennedy’s comments at oral argument which seemed to suggest he was taking Paul Clement’s textualist arguments seriously, despite earlier cases which suggested a more capacious reading of the term legislature.  I attribute much of this to Justice Kennedy’s experience as a Californian who has used and seen the benefits of direct democracy.

4. A key part of my Slate piece will contrast Chief Justice Roberts literalism here in dissent with his lack of literalism in King v. Burwell.

5. The standing part of the case could be quite significant. I’ll have to leave that to the standing gurus.  But looks like institutional standing for state legislatures is a thing (or could be a thing in the right case).

More to come.

[This post has been updated.]


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