The NCSL Blog


By Lisa Soronen

Even if Arizona State Legislature v. Arizona Independent Redistricting Commission wasn't the biggest case the U.S. Supreme Court has agreed to hear involving legislative authority in a long time, the oral argument was bound to be interesting.

It featured two well-matched opponents, former Solicitor General Paul Clement arguing for Arizona's legislature and former Solicitor General Seth Waxman arguing for Arizona's redistricting commission.

The issue the court will decide is whether Arizona’s Proposition 106, which places all federal redistricting authority in an independent commission, violates the U.S. Constitution’s Elections Clause. The Elections Clause states:  "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

This case will be won or lost depending on whether the court views “by the Legislature thereof” to refer to the body of the legislature or to legislative power.  While oral argument is hardly a foolproof indicator of what the court will do, it seemed the majority of the justices favored Arizona.

The liberals, led by Justice Elena Kagan, peppered Clement with questions illustrating their skepticism for Arizona legislature’s position. One of Kagan’s concerns was that if Arizona wins it is unclear where the line should be drawn as to how much the legislature can be excluded from the redistricting process.

The conservatives, led by Justice Antonin Scalia, asked Waxman where in the Constitution the framers used the term “legislature” and didn’t mean a state’s governing body. 

Justice Anthony Kennedy also asked Clement a number of questions. But, as Lyle Denniston of SCOTUSblog describes, when Justice Kennedy told Waxman that the history of electing U.S. senators—by legislatures rather than by the voters (before the Seventeenth Amendment passed in 1913, giving that power to the electorate)—“works very much against you,” those in the courtroom could hear the Supreme Court press writing that statement down. 

Justice Stephen Breyer, unlike his fellow liberal colleagues, was notably silent during Clements' argument. He ultimately commented to Waxman that the relevant precedents “don’t help you very much.”

The Supreme Court will decide the case by the end of June. Read the transcript of the oral argument here.

Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on U.S. Supreme Court cases for the NCSL Blog.

Posted in: NCSL, Public Policy
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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.