Independent Redistricting Commissions Here to Stay

The Supreme Court upheld Arizona’s Redistricting Commission in a 5-4 decision ruling that the use of an independent commission to redraw congressional districts is constitutional. Thus, the current maps will remain for the 2016 election.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, the Court considered whether the commission, created by a ballot initiative, fell under the meaning of the work “legislature” in the Elections Clause of the Constitution. The Elections Clause states “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof.”

John Ryder, RNC General Counsel and RNLA Vice Chair, notes,

Ginsberg argues that under the Arizona constitution, Initiative and Referendum allow the Legislative Body and the People to share the legislative power.  However, the dissents argue that “Legislature”, as used in the Constitution, means only the state Legislative body, and that fixed meaning does not change through the subsequent adoption of state constitutions, which embrace the Initiative & Referendum process.

Ryder also points out that

Roberts is more of a textualist in this dissent than he has been previously this term. Scalia simply would have avoided the case as a “political question.”  Thomas makes a nice point about the hypocrisy of the majority opinion, which champions state’s rights, coming from the same Justices who trampled on state’s rights in Obergfell.

Ryder highlights the political consequences of the opinion:

He explains all “independent” commissions are here to stay without challenge, such as California’s, and states “it is always the minority in a state that wants a commission. While a commission may not always draft a plan favorable to the minority, it usually can’t be worse for the minority than a legislatively drawn plan.” Other states who may adopt their own commission are Illinois, Maryland, Ohio, and Wisconsin.

Also, concerning the majority’s statement, “The Legislature comprises the referendum and the Governor’s veto . . . ,” Ryder highlights that 

This assertion creates implications for the legislature as the repository of the jurisdiction and the basis for further litigation regarding the role of the governor in the legislative process concerning the context of amendment ratification or presidential elector selection.

Finally, the decision affirms maps drawn in other states through the same process. Other states that use commissions to draw lines with some legislature’s involvement include: Hawaii, Idaho, Montana, New Jersey, and Washington.

Despite Media Claims, Arizona Voting Case A Victory For Those Who Seek Fair Elections

Yesterday, the Supreme Court voted 7-2 to invalidate an Arizona voter-approved requirement that prospective voters document their U.S. citizenship in order to use a registration form produced under the federal “Motor Voter” voter registration law.

Federal law "precludes Arizona from requiring a federal form applicant to submit information beyond that required by the form itself," Justice Antonia Scalia wrote for the court's majority.

However yesterday’s decision was actually a victory for Voter ID supporters because lost in the media’s coverage of the decision was that this decision actually uncorked states rights, J. Christian Adams former lawyer at the Justice Department Voting Section stated:

First, Arizona can simply push the state forms in all state offices and online, and keep those federal forms in the back room gathering dust. When you submit a state form, you have to prove citizenship. Thanks to Justice Scalia, that option is perfectly acceptable. Loss for the Left. Victory for election integrity. You might say, “That’s a small victory.” Nonsense. This was the whole ballgame to the groups pushing the Arizona lawsuit. They lost, period.

Next, when voters use a state, as opposed to a federal, form, they can still be required to prove citizenship. The federal form is irrelevant in that circumstance. After the decision today, states have a green light to do double- and triple-checking even if a registrant uses the federal form. The Left wanted the submission of a federal form to mean automatic no-questions-asked registration. This is a big loss for the Left because now states can put suspect forms in limbo while they run checks against non-citizen databases and jury-response forms. Another significant victory in today’s decision. The Left wanted to strip them of that double-checking power.

The federal "motor voter" law, requires states to offer voter registration when a resident applies for a driver's license or certain benefits. The provision at issue before the court, requires states to allow would-be voters to fill out mail-in registration cards and swear they are citizens under penalty of perjury, however it doesn't require them to show proof.

Under Proposition 200, Arizona officials simply sought to require proof in the form of an Arizona driver's license issued after 1996, a U.S. birth certificate, a passport or other similar document, or the state would reject the federal registration application form.

Hans von Spakovsky from the Heritage Foundation argued:

The National Voting Rights Act requires states to “accept and use” the federal form. This is well within Congress’s power to specify the “Times, Places, and Manner” of congressional elections, which includes regulations relating to registration. This does not prevent Arizona from using a state voter registration form with a proof of citizenship requirement or stop the state from denying registration based on information in its possession establishing ineligibility.

Arizona can also request that the U.S. Election Assistance Commission, which regulates the federal form, include a state-specific instruction for Arizona including the proof of citizenship requirement. Arizona could then sue the EAC under the Administrative Practice Act if the EAC refuses to include the instruction, claiming such a decision is arbitrary, particularly since the EAC approved a state-specific instruction for Louisiana requiring applicants without a driver’s licenses, ID card, or social security number to attach additional documentation to the completed federal form.

While the court was clear in stating that states cannot add further identification requirements to the federal forms, they also made clear that the same actions can be taken by state governments if they get the approval of the federal government and the federal courts.

Arizona can ask the federal government to include the extra documents as a state-specific requirement, Scalia said, and take any decision made by the government on that request back to court.  Other states have already done so.

The Election Law Center summarized the opinion by saying:

•This case has nothing to do with Voter ID – Arizona’s voter ID is in place and was not before the court

•Arizona must “accept and use” the federal mail-in voter registration form specified by the National Voter Registration Act and its requirement that proof of citizenship be submitted with the federal form is preempted

•Arizona can require proof of citizenship with its state voter registration form.  Arizona can deny registration based on other information.

•Arizona can request that the U.S. Election Assistance Commission to include AZ language on the form regarding citizenship. If the EAC refuses to include the instruction, Arizona can sue the EAC, which ought to be interesting because it has become a zombie agency.

A Small But Important Point on the AZ Supreme Court Case Today

The far left and their allies always cite lack of vote fraud prosecutions as “proof” that vote fraud does not exist. This laughable claim came up in today’s Supreme Court hearing on the Arizona case requiring proof of citizenship. At one point it was explained that there were so few prosecutions because the people committing the crime were told to do so by “solicitors”, people who told them that registering as an illegal alien was legal. More details from news articles. First USA today:

 

In this case, Arizona Attorney General Thomas Horne argued that the federal registration form -- which can be mailed in -- "is essentially an honor system. It does not do the job."
Conservative justices were sympathetic to that argument, noting that people who want to vote illegally may think nothing of committing perjury by declaring themselves citizens on a piece of paper.States can challenge those forms, but the burden is on them, and prosecutions are slow and difficult. As a result, Arizona voters approved Proposition 200 in 2004, requiring more specific proof of citizenship. A federal district court upheld the referendum, but the appeals court overturned it.

Or as Catholic Online wrote:

Although the oath on those forms is signed under the penalty of perjury, such cases are rarely prosecuted since voter fraud appears to be rare in the U.S.

However, it is uncertain just how rare voter fraud is because authorities have rarely investigated it as a phenomenon in the U.S. 

Many years ago I read a story on how there were three prosecutions for jaywalking in that year in New York City. Those who have been to New York City know jaywalking is extremely common and laws against it are not enforced. Lack of prosecutions does not mean it does not exist. And there are some on the left that will argue jaywalking is more serious than vote fraud. 

Quite to the contrary it can mean that people don’t want to enforce the law. And just think if you prosecute vote fraud at a minimum you will be charged with being a partisan and more likely be called racist. The difficult of prosecuting vote fraud is what led African American liberal Democrats like Harold Metts in Rhode Island to pass Voter ID to stop vote fraud before it happens. And it is a reason the people of Arizona voted to verify that people are citizens before they vote.