There's a category of cases in which it isn't difficult, with reasonable accuracy, to predict the ultimate outcome without knowing much about the substantive law. The recent ACA and marriage cases, for example. You kind of just know how they're going to come out. Bush v. Gore, 531 U.S. 98 (2000), was another one of those. Because the practical and political forces at play in those and similar cases overwhelm the legal objections no matter how technically and logically correct they appear, and the justices in the majority probably end up making their decisions based on pragmatic as well as their (perceived) policy inclinations. The opinions and dissents get dressed up with citations to precedent and the like, but what really seems to drive these cases is their practicalities.
It seems to us that today's 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm'n, No. 13-1314 (June 29, 2015), is one of those. Not because it was what non-lawyers might say is a "result-oriented" decision that was compelled by the justices' politics, but rather because there's no obvious solution to the case that merges the obvious law with the practicalities. On one hand, it would seem obvious that the the term "legislature" in the Elections Clause really does mean The Arizona Legislature, and not generically "the legislative process." At least as a starting point that acknowledges the plain language of the constitutional text, and very likely the intent of the framers. On the other, not only does Arizona have a redistricting/reapportionment commission that has been around for a while, so do several other states, Hawaii included, and a ruling declaring those commissions unconstitutional when they undertake congressional redistricting would cause a lot of humbug in those states, and throw the issue of how to divide up a state's population for electing the House of Representatives into politically-charged state legislatures. These commissions seem to work reasonably well, and many have been in existence for a while without objection. So the question arose: what was the Court going to do in a challenge brought by the Arizona Legislature which objected to the people of Arizona taking away the Legislature's power and delegating it to a commission?
Well, we have our answer today in that case -- which we previewed here ("Is the Hawaii Reapportionment Commission About To Go The Way Of The O'o Bird?") -- with the Court's majority concluding that "Legislature" doesn't really mean "the legislature," and the people of Arizona constitutionally delegated the power assigned to "the legislature" in the Elections Clause to the Arizona redistricting commission. Read the majority opinion of Justice Ginsburg and the lead dissent of Chief Justice Roberts for the reasons why. Reasonable minds differ, and at least in this case we're okay with that, even if we guessed there was no way the Court would force commission states to throw the process back to their legislatures, even if the constitution required it. A challenge brought earlier -- like way earlier, when these commissions were originally created -- may have had a better go.
A sidebar: the opinions in this case reminded us of a somewhat similar case we litigated (and eventually lost, 3-2, at the Hawaii Supreme Court). In that case, the people of the County of Kauai adopted an amendment to their county charter by popular vote that would have limited the ability of the county to increase property taxes. When the measure was adopted by an overwhelming vote, it was challenged in state court by the County of Kauai, which sued the Mayor of the county to enjoin enforcement, arguing that the delegation in the Hawaii Constitution of the property tax power "to the counties" really meant "only to county councils." We represented the ballot proponents, who intervened to object on standing grounds: the County, we argued, could not be the plaintiff as it wasn't injured, and the defendant could not be the Mayor, as he wasn't the party who allegedly did anything wrong. It was the county council members who should have been the plaintiffs, and the County itself should have been the defendant. But the council members were too scared politically to be the actual plaintiffs, so they spent public funds and hired outside private counsel to represent the County.
Long story short, we lost the case, with three Hawaii Supreme Court justices agreeing that the County did not have standing as a plaintiff. Instead of dismissing the case, however, the majority dropped the County as plaintiff, made it the defendant, and essentially allowed an advisory opinion to be rendered. On the merits, the majority concluded that the term "to the counties" is really a delegation of exclusive power "to county councils."
Compare that to the Arizona case, in which the majority concluded that the Arizona legislature had standing because it had its power to redistrict taken away ostensibly unconstitutionally, and on the merits that "legislature" means the people exercising legislative functions. In other words, the Elections Clause only requires the legislature redistrict, but doesn't require any particular form of state government, so delegation of the power by initiative is okay. A "committee of the whole" argument.
See why it reminds of the Arizona case?
As we noted in our earlier post on that case, it could have had a big impact on Hawaii, which, like Arizona, accomplishes both Congressional and state redistricting and reapportionment via a commission. We didn't adopt ours by initiative like Arizona, at least directly. Ours was created by the 1978 constitutional convention, which was ultimately ratified by popular vote. No substantive difference, however. If today's ruling had gone the other way, Hawaii's reapportionment commission would likewise been at least partially unconstitutional.
So the Commission can breathe easy, at least for now.
We say "for now" because the bigger challenge is on the calendar for the next Supreme Court term, the Texas "one person, one vote" case which we wrote about here. However that case goes, it won't impact the Hawaii Reapportionment Commission directly like the Arizona case might have, but rather could prohibit the Commission from counting population the way it currently does, and overturn 50 years of Hawaii practice which excludes active duty military from being represented in the state legislature.
Like the Arizona case, we think we know which way this one is going to turn out, and why. But we're not going to say, just yet.