“Who Has the Last Word When It Comes to Redistricting?”

Daily Signal: “The Obama administration filed an amicus brief in the case on the side of the redistricting commission and was given time this morning to present its arguments to the Court.  However, some of the justices seemed to find the administration’s arguments a bit hard to swallow.  For example, Assistant Solicitor General Eric Feigin claimed that the state legislature didn’t have standing to sue because nothing prevented the legislature from “passing a bill that would redistrict the state,” even though he acknowledged that such a law would not be enforceable.  As Chief Justice Roberts said, “So you want the legislature to pass a law that’s not enforceable and suggest they don’t have standing to challenge what the referendum has done in this case until they go through that process?”

In fact, Feigin went even further, claiming the legislature doesn’t have “an interest in the enforcement of the laws that they pass,” thus taking the astonishing position that the legislature would have no ability to ever appear in court to contest this referendum.  Even Justice Sonia Sotomayor seemed surprised by Feigin’s answer, saying that didn’t the legislature “have an interest in the constitutional powers they have?” Justices Ruth Bader Ginsburg and Anthony Kennedy also were clearly concerned over the arguments being asserted by the Justice Department over standing.

Seth Waxman asserted that Arizona defines its legislature to include “the People,” and thus the referendum process, and that the term “Legislature” in the Elections Clause cannot “ignore a State’s definition of its own legislature.” Justice Scalia interrupted Waxman and challenged him to give Scalia “one provision of the Constitution that uses the term ‘legislature’ that clearly was not meant to apply to the body of representatives of the people that makes the laws.”  Waxman was unable to answer that question and Scalia admonished him that Scalia had looked through the Constitution and there wasn’t a single provision that “clearly” had the meaning Waxman was trying to subscribe to it.

Justice Kennedy added that “history works very much against” Waxman’s argument on the definition of legislature, citing the Seventeenth Amendment, which changed the Constitution’s original provision that senators were chosen by the legislature.  As Kennedy pointed out, “there was no suggestion that this could be displaced” by a state prior to the Seventeenth Amendment.”