Arizona Redistricting Case

The United States Supreme Court has decided an Arizona redistricting case that will determine whether the legislature or an independent redistricting commission can draw congressional district maps. Local attorneys Paul Eckstein and Hugh Hallman will discuss the ruling.

Transcript:

TED SIMONS: Coming up next, on "Arizona Horizon," the U.S. Supreme Court rules on Arizona's congressional redistricting case. We will have legal analysis on that decision and we'll take a closer look at the high court's ruling on same-sex marriage. That's next on "Arizona Horizon." ¶¶

VIDEO: "Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

TED SIMONS: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The U.S. Supreme Court today issued several regulation, including Arizona's congressional redistricting case which we will discuss in detail in a moment. The high court today also ruled that a controversial drug that's been shown to be problematic in administering the death penalty does not violate the eighth amendment's ban on cruel and unusual punishment. The 5-4 decision means Arizona and other states can continue using the drug. Executions in Arizona had been put on hold pending the Supreme Court's decision. The court today also declined to hear an appeal on a new trial after conviction for public corruption and money laundering. He contend that his work in Congress should not have been included as evidence against him. A lower court rejected that argument and the Supreme Court today declined to step in. He began serving a three-year prison term in February.

TED SIMONS: Maricopa county Superior Court today ordered to make a payment to the coyotes. The judge denied the request but did increase the required bond to $1 million, a move to protect Glendale should it win the case. And Arizona will pay to the families of the 19 granite mountain hot shots who died fighting the fire. The state says the settlement does not assign blame and that the state agencies admit no guilt or negligence. The segment comes a day before the second anniversary of the disaster.

TED SIMONS: As mentioned at the top of the show, the U.S. Supreme Court today upheld Arizona's method of drawing congressional district maps. State Republican lawmakers had argued at the U.S. Constitution gives a sitting legislature the authority to draw those maps. Here to offer their perspectives on today's decision Paul Eckstein and Hugh Hallman an attorney with the rose law group. Thanks for joining us. We'll start with you. This was considered by a lot of folks a surprise. Do you agree?

PAUL ECKSTEIN: I wasn't surprised. When you look at the transcript of the oral argument, it was pretty clear that Kennedy was in play. He's often in play. He asked questions that I thought tipped his hand in favor of letting the process be done by the power of initiative. He's the only justice who is from the western part of the United States where initiatives are pretty common. I think the dissenters come from places where they don't have experience with initiatives and they started with a bias against initiatives. What was at issue in this case was the meaning of the term legislature in article one, section four of the Constitution. The court held by a 5-4 decision, that legislature includes the legislative process as done by the power of initiative in Arizona which, by the way, is defined in the Arizona Constitution to include what is done by initiative and referendum.

TED SIMSON: Your thoughts?

HUGH HALLMAN: The kinds of things only lawyers can get into and I think Paul and I agree this was not a surprise actually to me either, in large part because of the makeup of the court. We've had a number of 5-4 decisions and these kinds of decisions I think for conservatives provide the fuel that demonstrates that there is more politics than law sometimes in decision making. In this instance you've got justice Roberts indicating that the word legislature is used many times in the Constitution and no place else could it properly really be redefined to mean the people of the state. It certainly is true in my view that there were other decisions earlier on that the courts made that gave one the opportunity to see that this is a decision that could be decided either way and it really was up to justices to decide which way they want to go. As law professors thought probably both of us in law school, sometimes, the decision is based on what the judges had for lunch and in this instance you've got a decision that could easily have gone either direction.

TED SIMONS: Do you agree with that?

PAUL ECKSTEIN: No, I don't think it reasonably could have gone either direction but what's really interesting here is chief justice Robert's switch in position. When he decided -- wrote the majority opinion in the aca case last Thursday, Obamacare, he took words that dissenters thought could only be interpreted one way and he looked to the context of the statute. It was a statutory construction case not a constitutional case but what Ginsberg did was to look to the context and it's interesting that Roberts switched attitudes and ways of looking at it.

HUGH HALLMAN: That's also true of the majority in this case. They switched in how they get there in Obama care and in this one. I look at it trying to create a whole cloth. The Obamacare decision was a very narrow decision. You can see how one could interpret it both ways. In this instance the court really has looked at the language of the Constitution and then ignored it. You've got provisions in the Constitution that refer to the term legislature. Could you say that that means the people? Paul is correct I think to say that Arizona's a young state with our Constitution enacted when it was, adopted something fairly new, a concept of initiative and the court sees that in its argument or in its opinion and then the majority said let's look at the policy, that's look at the justifications for it. If you are a strict constructionalist, legislature has a very specific meaning, and I think it's a little ironic that it was Arizona that was the second state that approved the 17th amendment to allow the direct election of senators where otherwise it was the legislature and as he said, unusual language for a justice, what a bunch of chumps, that they went through the process of amending the Constitution instead of just having this court redefine the word legislature to mean the people.

TED SIMONS: Fun words, chumps and jiggery-pokery and pure applesauce.

PAUL ECKSTEIN: Let me read to you the critical language. It would be perverse, perverse is the word she uses, to interpret the term legislature in the elections clause so as to exclude law making by the people, particularly where such law making is intending to check legislators' ability to choose the lines they run in, thereby advancing the prospect that members of Congress will, in fact, be chosen by the people of the several states, by the people of the several states is the language that is used in article one, section two of the United States Constitution. This particular provision that was adopted in 2000 by initiative is part of the Arizona Constitution and no one doubts, no one doubts that it facilitates the will of the people.

HUGH HALLMAN: That's a nice policy but that's not what the U.S. Constitution is about. It's not for the several states or the people of those states to redefine the Constitution itself and although Paul and I might agree that initiative is a very powerful and important tool in the state of Arizona, it's not for the state to redefine the Constitution and that's exactly the point that was made with the 17th amendment. The 17th amendment changed the language of the Constitution that said the legislature shall appoint senators. Legislature means the people, why bother?

PAUL ECKSTEIN: She skewered chief justice Roberts when she said it means different things in different parts of the Constitution. When they legislate, which is what redistricting is, it is legislating when you do redistricting, when you do that, it is done by the people in the state of Arizona, which is part of the legislative process.

HUGH HALLMAN: And that reasoning now opens the Constitution to exactly the point. Whatever the justices had for breakfast or lunch, if they can interpret words that are very clear throughout the Constitution to mean one thing in one place and something else in another, we get into trouble.

PAUL ECKSTEIN: Hardly that. She just said based on prior decisions the court could have gone either way. I took issue with that and said it was clear in the way that justice Ginsberg wrote her opinion. If you say it could have gone either way, it's hardly the injustice that you pretend it is.

HUGH HALLMAN: And I said it's based on the makeup of the court and you've got at least five justices willing to interpret the Constitution based on what they think it should be today. It's not what conservatives view as appropriate and that's why there's such debate about the court's decisions, especially when they're 5-4.

PAUL ECKSTEIN: I think conservatives are all over the lot on this. I want to raise something that I think is very important.

HUGH HALLMAN: And you make a good point. I want to grant that, you've got Republicans in California that would cheer this decision because they are aided by the fact there's an independent commission in California that helps them get more seats than they might otherwise. It's a very democratic legislature. So the partisanship that goes into this, I grant you.

PAUL ECKSTEIN: The Republicans in the Arizona state legislature expended somewhere around $450,000 at a minimum to prosecute this action and spent in anticipation of a favorable decision by the Supreme Court something like 60 to $70,000 on a firm that assists in the preparation of maps. Who's going to pay that? That is a partisan effort paid for at least now by the people of the state of Arizona. That's absolutely wrong. What we ought to be talking is how that money is going to be paid back.

Maybe the koch brothers will write a check.

TED SIMONS: I want to get a couple of responses here. Justice Ginsberg, elections clause not designed to restrict, which is what Arizona legislature was claiming. She's saying, she understands the argument, but this is not what the elections clause was designed to do.

HUGH HALLMAN: In fact, the irony is that the second provision in the elections clause gives Congress the authority to make the kinds of changes that she would like to have made in this instance but Congress didn't make that change, and so I challenge on that ground that you've got a specific additional clause in the elections clause itself that gives Congress that authority. And that Congress has not wielded that authority, it's troubling to me. By the same token it means that if somebody wants to challenge this kind of a decision, they've got an open opportunity to go to Congress and seek enactments.

TED SIMONS: I want you to respond to justice Roberts who basically said the legislature does not mean the people.

PAUL ECKSTEIN: He just said that. Ipse dixit. Prior decisions, in a case out of Ohio and a case out of Michigan, said that the legislature can be something beyond the 90 people who sit at the end of Washington street. A good example of that is, in one of the cases, the question was in redistricting whether the fact that a governor had the right to veto what the legislature did, was that something that went beyond article one, section four, giving the legislature the power? And the Supreme Court said 100 years ago or so, no. That's part of the legislative process. The legislative process in Arizona clearly, clearly involves the initiative and referendum process.

TED SIMONS: Does this broaden the term "legislature"?

HUGH HALLMAN: Of course, it does. And that actually arguably is a tip to states' rights. This is where conservatives at least libertarians might find this important. You've got 50 Petri dishes in the states and the court essentially has said the state of Arizona through its Petri dish and its Constitution has devolved upon the people some very direct authority to legislate. That's not true across the country. It's a progressive concept that was adopted in this state, ironically again by the very people who decided that they would eliminate the state control of the Senate and give it to the people. That same group of people has now enacted something that has stripped more power away from the legislature.

TED SIMONS: Agree?

PAUL ECKSTEIN: One thing I will agree with is Republicans generally in Arizona have been opposed to initiative from the very beginning. There were 11 members of the Republican party out of 55 at the Arizona constitutional convention. They to a person, except one objected to the power of initiative. That objection to allowing initiative and referendum as a check on the legislature has been objected to by Republicans from time immemorial. If this law had been interpreted, had been construed by the Supreme Court as unconstitutional, it would put in jeopardy all kinds of laws that have been adopted by initiative under the time, place and manner provision of the Constitution.

HUGH HALLMAN: Paul would like to go back to the founding of the state to find Republican objections. The reality is that both parties have loved it or hated it, depending on which side of the issue they're on. Certainly, the center for Arizona policy loved it in 2008, doesn't anymore, and Paul's concerned that the Koch brothers will write a giant check a fund fixes. It is a matter of having enough money to fund an election.

PAUL ECKSTEIN: One final point please? There was litigation in 2000, Hugh was a witness and he testified -- there wasn't any objection from Hugh or the Republican party at that time about the unconstitutionality of the independent redistricting commission. Now, when they don't like the maps, they object.

TED SIMONS: Quickly.

HUGH HALLMAN: Of course, the Democrats will pick the shoe that they would like to wear at any given time. I don't disagree with Paul that both parties like to get on the opposite side of an issue frequently, and it's unfortunate because it politicizes the law.

TED SIMONS: Got to stop it right there. Thanks for joining us.