(CN) - The Arizona Legislature struggled Monday to persuade the U.S. Supreme Court to overturn a ballot referendum that put congressional districting power in the hands of an independent commission.
In 2006, Arizona voters created the Arizona Independent Redistricting Commission through Proposition 106. Democrats soon challenged the resulting district map, but a decade of Democratic gains led to Republicans doing the same.
The Legislature itself then sued the commission, claiming that Prop. 106 wrongly "eliminates entirely the Legislature's prescriptive role in congressional redistricting, and creates a new and extremely limited role." A divided appeals panel dismissed the suit, and the Supreme Court granted certiorari in October.
Monday's oral arguments dealt with the complex relationship among federal and state legislatures and districting commissions, as well as the effect of referenda. It was defined, from first to last, by tough questions from the justices.
The tone was set early, when Paul Clement, speaking on behalf of the plaintiffs, said, "This avowed effort to redelegate districting authority to an unelected and unaccountable commission is plainly repugnant to the Constitution's vesting of that authority in the legislatures of the states."
"But it's all right for state redistricting," said Justice Ruth Bader Ginsburg, interrupting him almost as soon as he paused for a breath.
"Our argument only applies to congressional redistricting," he said, clarifying the plaintiffs' position.
But this didn't mollify Justice Sonia Sotomayor, who wondered: "if a state constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn't that the legislative process?"
"When the State legislature is told that it can elect somebody or ratify something, then there's no partial agency of anybody else in that process," Clement replied. "But when they're told to prescribe rules, the Court says that's a delegation of lawmaking authority."
The rapid-fire questioning did not let up, and again it was Ginsburg who pressed the attorney.
"Couldn't Congress bless what Arizona has done by saying that's a matter in which federal elections will be held?" she asked.
"I don't think they could simply bless what Arizona has done because I think that would amount to revisiting the judgment that the framers made. I think that they could if they wanted to actually take those commission districts and impose them," Clement said.
Justice Anthony Kennedy sought to clarify: "so you're saying it has to be a federal commission or a state commission, but if it's the latter, it can be only the legislature."
Clement said: "I think that's right," but the feisty give and take -- mostly take -- from the justices continued.
"My gosh. I would think that if your primary argument is legislature means legislature, that there has to be a legislative control, in none of these laws is there legislative control. There's no legislative participation at all," Justice Elena Kagan said.
"Our position is not the problem here is that somebody else got into the legislature's lane and purported to do something about elections," Clement said. "Our problem is once they got in that lane, they decided to wrest the legislature from that process entirely on a permanent basis."
But Kagan was not convinced:
"That suggests a very pure rule, but you've made many, many exemptions to that over the course of the last 20 minutes," she said.
"You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes, about the interaction between a legislature and advisory commission, are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control."
"And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?" the justice concluded.
The United States served as amicus today, with Eric Feigin speaking on its behalf and against Arizona's case.
"We don't normally conceive of legislatures as having an interest, let alone an interest cognizable under Article III, in the enforcement of laws they might pass," he said.
He noted that Prop. 106 was not a "diminution of the power to legislate" because there is nothing that "prevents the legislature from passing a bill that would redistrict the State."
Feigin continued: "Congress here isn't trying to force upon the states some process that the state doesn't want. Congress is simply trying to recognize that the federal statutory requirement of districting is satisfied when a state redistricts in the manner that it's decided to redistrict under its own procedures."
Speaking for the commission, Seth Waxman barely began before Justice Antonin Scalia cut him off.
"Give me one provision of the Constitution that uses the term 'legislature' that clearly was not meant to apply to the body that of representatives of the people that that makes the laws," Scalia said. "I looked through them all. For close to a hundred years, many states wanted to have direct election of the senators and they had all sorts of proposals, they had primaries, and not one state, not one state displaced the legislature. It took the Seventeenth Amendment to do that."
Kennedy favored this reading: "It seems to me that history works very much against you because the term 'legislature' is not in the Constitution. Now it's been taken out by the Seventeenth Amendment. The senators shall be chosen by the legislature."
A tortuous discussion of precedent on the definition of the term ended with Waxman insisting that "if there were any other dictionary that had a different principal meaning, we would have seen it in the briefing in this case. But you only have to look at the framers' own use of the term."
He then went through a list of framers and speculated on their likely understandings of the term "legislature."
After another battery of questions from Scalia, Waxman concluded that it did not matter either way:
"What does the word 'legislature' mean? My friend concedes that whatever the legislature is, it can delegate its authority," he said.
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