Anthony Kennedy Adds the Fifth Vote in the Citizens United Against Gerrymandering Opinion
Tomorrow, in addition to the predictable ruling in the EPA/mercury-emissions case, and in addition to a declaration of a constitutional right to same-sex marriage—another 5-4 ruling, in Obergefell v. Hodges—the Court will issue an opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case that could directly implicate continued Republican control of the House of Representatives. So the only question is, which way will Kennedy vote—and most people expect that he will vote Republican.
Which is to say, most people think he’ll make up the fifth vote to strike down as unconstitutional an amendment to Arizona’s state constitution, passed by the state’s voters in 2000, that removed the legislature’s authority to draw boundaries for federal congressional districts away and placed that authority with an independent redistricting commission. The legislature is challenging the amendment’s constitutionality under the Elections Clause, which states: “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.” (Scotusblog notes that California has a similar setup.)
Obviously, since state legislative gross gerrymandering is largely responsible for Republican control of the House, presumably until after the next census in 2020, the Republican justices don’t want to invite, say, Pennsylvania voters to push through something similar in a voter referendum, reversing the extreme gerrymandering there by the Republican-controlled legislature in 2011. That includes Kennedy. But Kennedy authored Citizens United and reportedly was the one who encouraged his cohorts to take on issues that had not been raised in the case, in order to destroy the McCain-Feingold law, and he’s been on the extreme defense about it ever since. He could see this as some sort opportunity to regain some semblance of credibility on the nonpartisan front. I mean, you never know.
Okay, you probably do know. It won’t happen. The CW will prove right.
Okay, well, the EPA/mercury-emissions opinion, in Michigan v. EPA, and the Arizona Independent Redistricting Commission opinion were released today rather than on Friday. As expected, both were 5-4 opinions with Kennedy as the swing vote.
Also as expected—by me and pretty much everyone else—the EPA’s interpretation of a phrase in the Clean Air Act was stricken as beyond the reasonable meaning of that phrase within the context of the Clean Air Act. This is a big, big win for power plants and the Koch brothers.
But as not necessarily expected, by me or (to my knowledge) many other people, was the result in the Arizona Redistricting Commission case. Which is to say, Kennedy’s decision to join Ginsburg’s opinion interpreting the Constitution’s Elections Clause as referring not to the actual legislative body but to a state’s general authority—vis-à-vis the federal government’s—to determine such matters, in this case via a voter-led referendum in 2000 that established a bipartisan state commission for the purpose of redistricting congressional districts.
“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg said in a statement she read in the courtroom. The full provision in the Constitution’s Article I, Section 4, Clause 1, states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.
“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Ginsburg wrote.
What I find curious is the majority’s interpretation of “The Times, Places and Manner of holding Elections for Senators and Representatives” as referring to redistricting methods at all. And theoretically, it’s interesting that Scalia, Thomas and Alito, after all the venom they spilled last week in their King v. Burwell dissents—words no longer have meaning, etc., etc.—think “Times’ means something other than “times”; “Places” means something other than “places”; and “Manner” means something other than, well, “manner”. I haven’t read the Ginsburg opinion yet, and I don’t know whether it addresses this. And while Ginsburg wrote the opinion, Kennedy controlled the basis for it.
But in my opinion, the grounds that the majority settled on are broader and better than a decision limited to the issue of gerrymandering. Which, it seems to me, this isn’t. I’m certainly no expert in election law, but off the top of my head the ground on which the opinion is based—that the Elections Clause as referring not to the actual legislative body but to a state’s general authority to determine such matters, including by voter-led referendum—then states (Think: Wisconsin; North Carolina; but not, of course, Texas) might reverse the uber-restrictive voter-ID laws enacted the moment that the Tea Party gained control over the state’s legislative and executive branches together.
Well, we’ll have to see what the experts say about that. Sit tight. But even if limited to voter referendums on creation of anti-gerrymandering commissions, this opinion is a very big deal. I think.
Citizens united in Arizona in 2000 against extreme gerrymandering. Now citizens can unite in other states to do the same.
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UPDATE: Richard Hasen, a professor at UC-Irvine law school and a leading liberal election law expert (he blogs on election law at electionlawblog.org), just published an article on Slate on the opinion in Arizona State Legislature v. Arizona Independent Redistricting Commission, in which he conjectures about the reasons for Kennedy’s surprising vote and notes that, as in King v. Burwell, Kennedy seems to have changed his mind after the argument in the case this spring. Slate notes at the bottom of the article that he has a book forthcoming called Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections. Cool.
Added 6/29 at 3:42 p.m.
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SECOND UPDATE: Hmm. Two terrific articles about the actual effect of the EPA decision on coal-powered power plants. One, by Michael Grunwald in Politico, discusses both the specifics of the ruling and the quickly progressing demise of the coal industry, which is rapidly being replaced by gas and solar and wind power. His article is titled “A great day for coal? Not exactly.” It’s subtitled “Why the Supreme Court’s strange EPA decision won’t matter as much as people think.”
The other, by Eric Holthaus in Slate, is called “Bad News: Supreme Court Blocked Power Plant Rules. Good News: The Era of Coal Is Over.”
Since I’m one of the people referred to in Grunwald’s subtitle, I thought I should mention these articles. This is just a big win for coal-powered power plants, not a big, big win for them. The Koch brothers are still pretty happy tonight, though.
Added 6/29 at 9:40 p.m.
One Walker legacy: making the political process more favorable to GOP By Craig Gilbert of the Journal Sentinel
http://www.jsonline.com/blogs/news/298842321.html
“Redistricting … helps explain why Republicans have 63 of 99 seats in a state that has voted Democratic for president seven times in a row.”
One mind-blowing chart shows why the Supreme Court took on gerrymandering
http://www.washingtonpost.com/blogs/wonkblog/wp/2015/06/29/one-mind-blowing-chart-shows-why-the-supreme-court-took-on-gerrymandering/
This guy did a pretty good job on explaining Gerrymandering: “Gerrymandering Michigan” http://angrybearblog.strategydemo.com/2014/08/gerrymandering-michigan.html
Yeah, the language looks rather clear to me. The state has a legislature that gets to set the time, place and manner of the election. So ‘state” in the generic We the people sense makes no sense. However, it says nothing about there being a need to divide a state into jurisdictions if at all
Glad it worked out for us, but…seems Scotus is writing a dictionary along with a constitution.
Bev,
Do you have any thoughts on the other opinion regarding 3 strikes and mandatory sentencing?
Which cases are you talking about, Daniel?
This one: http://www.scotusblog.com/2015/06/opinion-analysis-the-court-strikes-down-the-accas-residual-clause-as-vague-but-is-the-real-problem-the-categorical-approach/
Seems a big deal for the prison industry and sanity for society.
Denis, the Supreme Court didn’t choose to take on gerrymandering. The state legislature sued to challenge the constitutionality of the voter initiative that established the independent redistricting commission, under a law that establishes a special system procedure for litigating challenges to redistricting plans. The case is heard by a panel of three district court (i.e., trial-court level) judges, and then (I believe) the Supreme Court is required to hear the case as a direct appeal if the losing side files a petition with the Court. In this case, the three-judge panel upheld the constitutionality of the voter initiative, and the state legislature then asked the Supreme Court to hear the case. It was pretty widely expected that the Court would strike down the voter initiative as violating the Elections Clause. Today’s 5-4 result was a big surprise to most people.
Daniel, the three-strikes and the mandatory sentencing are abominations, in my opinion. But the Armed Career Criminal Act is a federal statute and concerns prosecutions and sentences in federal court, and therefore involve only sentences to federal prison. So the private prison industry doesn’t benefit. Unlike some states, the federal government owns and runs its own prisons. There are a lot of people employed as federal prison guards these days, of course, but not nearly as many as are employed in state-run prisons or private prisons under contract with states.
This case, Johnson v. U.S., doesn’t directly challenge the ACCA’s three-strikes provision. The first paragraph of the opinion, a very good opinion written by Scalia, explains the statute and the specific issue in the case:
“Under the Armed Career Criminal Act of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony,” a term defined to include any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B). We must decide whether this part of the definition of a violent felony survives the Constitution’s prohibition of vague criminal laws.”
So the issue was whether the clause, known as the “residual clause,” that identifies what types of prior convictions will trigger the three-strikes mandated sentence, is unconstitutionally vague. The majority said it is, and struck it down, but not because it concerned sentencing or three-strikes. Any criminal statute that is too vague to identify with some reasonable specificity what types of conduct it’s directed at is unconstitutionally vague.
Thank you Bev,
I asked because one article suggested that the ruling puts a bit of a damper on extend sentence thus effecting the prison population and that there maybe some reviewing going on now for those with extended sentences.