Overview of Amicus Briefs

Summary of Amicus Briefs submitted in support of the Arizona Indepdent Redistricting Commission

1. Brief of Campaign Legal Center, League of Women Voters, American Civil Liberties Union, Common Cause, Democracy 21

Summary:  This brief argues that partisan gerrymandering poses a threat to democracy by thwarting majority rule, making elections less competitive, and heightening political polarization.  The Supreme Court has recognized the problem but has failed to set out judicially manageable standards to adjudicate partisan gerrymandering claims, necessarily leaving to the people in each state to innovate solutions.

State legislators should not be allowed to close the laboratory doors to the very people who elected them, and this Court should not interpret the Elections Clause in a way that furthers the undemocratic practice of extreme partisan gerrymandering and ends this important conversation.

2. Brief of the Arizona Proponents of Proposition 106:  League of Women Voters of Arizona, Inter Tribal Council of Arizona, Inc., Arizona Advocacy Network, individual principal drafters of Proposition 106

Summary: The brief details the origin of Arizona’s direct democracy tools which were central to the state constitution at the time of adoption.  Proposition 106, which established the Arizona Independent Redistricting Commission, is just one example of Arizonans’ use of their initiative power to address intransigency in redistricting. 

Given the failure of the people’s representatives in the Legislature to properly superintend the redistricting process, the people reasonably decided to vest that responsibility in an independent commission. That exercise of the people’s reserved lawmaking power was consistent with the State’s long history of direct lawmaking and was therefore well within the people’s federal and state constitutional authority.

3. Brief of Brennan Center for Justice at N.Y.U. School of Law

Summary:  The brief offers an Originalist reading of the Elections Clause, arguing that the term “legislature” refers to the legislative power, however it may be organized by each state.  Since the nation’s founding, states, the Supreme Court, and Congress have understood that states have authority to give the people the ability to regulate the times, place, and manner of congressional elections.

The driving force behind the [Elections] Clause was a desire to ensure truly representative government. These were leaders who sought to prevent politicians from manipulating the political system, not grant them the express power to do so.

4. Brief of California Citizens Redistricting Commission

Summary: The States—in particular California and Arizona—have long used the initiative to enact elections reforms that further democracy, such as by creating independent redistricting commissions.  California created a 14-person Citizen Redistricting Commission that carried out a fair, independent and transparent process. 

This decision by the voters in California and Arizona to revise the redistricting process to create independent redistricting commissions, to eliminate partisanship, and to base district lines on established criteria may be innovative, but it should be respected.

5. Brief of Former California Governors Deukmejian, Wilson, and Schwarzenegger; Munger; Mundell; and the California Chamber of Commerce

Summary:  The text, structure, and history of the Elections Clause makes clear that citizens may authorize independent redistricting commissions like those in Arizona and California.  California’s own, often ugly, history of redistricting by the state legislature underscores the Framers’ wisdom in giving the people the power to redistrict.

For decades, the California Legislature proved itself unwilling to draw congressional districts in a fair, representative manner.... Given the severity of the problem that the people of California faced, the Framers wisely left them—and the people of each State—the discretion to delegate the redistricting power to an independent commission free of partisan motives and the distorting influence of incumbency.

6. Bi-Partisan Brief of Officials in Illinois and Illinois-based reform organizations:  Former Gov. Jim Edgar; Former Lt. Gov. Sheila J. Simon; Former Lt. Gov. Corinne J. Wood; Peter B. Bensinger; Ronald Gidwitz; Newton N. Minow; CHANGE Illinois; Illinois Campaign for Political Reform; League of Women Voters of Illinois; Citizen Advocacy Center; Common Cause of Illinois

Summary: The States generally retain the sole authority over the structure and processes of their governments and the Elections Clause reflects this basic principle.  Illinois’ own history of partisan redistricting demonstrates the need to give the States flexibility when it comes to crafting redistricting laws.  

The Elections Clause thus does not hamstring the people of Illinois to accept an irrational and partisan redistricting process as their federally mandated lot—but instead preserves their power to overcome this Illinois-specific problem in the manner that Illinois, in the exercise of its sovereign authority and judgment, deems fit.

7. Brief of political scientists Thomas Mann and Norman Ornstein

Summary: Gerrymandering distorts the democratic process by perpetuating political dysfunction.  Independent redistricting commissions like Arizona’s represent a crucial avenue of reform, and one of the most promising means to address the legislative conflict of interest responsible for corrosive gerrymanders.

By insulating redistricting decisions from direct partisan influence, commissions like Arizona’s offer a crucial first step toward breaking the cycle of partisanship and dysfunction perpetuated by legislative gerrymandering. The States’ efforts to use such commissions to tackle one of America’s most intractable political problems have great potential and are fully consistent with the States’ traditional role as laboratories of democracy.

8. Bi-Partisan Brief of Members of Congress: Rep. Julia Brownley (D-CA); Rep. Ken Calvert (R-CA); Rep. Steven Cohen (D-TN); Rep. Jim Cooper (D-TN); Rep. Rodney Davis (R-IL); Rep. Keith Ellison (D-MN); Rep. Alan Grayson (D-FL); Rep. Raul Grijalva (D-AZ); Rep. Richard Hanna (R-NY); Rep. Duncan D. Hunter (R-CA); Rep. Derek Kilmer (D-WA); Rep. Zoe Lofgren (D-CA); Rep. Alan Lowenthal (D-CA); Rep. Tom McClintock (R-CA); Rep. Mark Meadows (R-NC); Rep. Beto O’Rourke (D-TX); Rep. David E. Price (D-NC); Rep. Tom Reed (R-NY); Rep. Reed Ribble (R.-WI); Rep. Dana Rohrabacher (R-CA)  

Summary:  The U.S. Constitution’s Elections Clause grants Congress broad authority, which it has used to permit states to redistrict via initiative.  Having the people control the state redistricting process is fully consistent with federalism principles—indeed, the independent redistricting commission is a positive and democracy-promoting state innovation. 

Full consideration confirms that popular regulation of congressional elections to guard against potential manipulation of congressional district boundaries by incumbent state legislators is fully consistent with the Constitution’s core purpose of ensuring a direct link between the People and their representatives to the national government.

9. Brief of political scientists: Nathaniel Persily; Bruce Cain; and Bernard Grofman

Summary:  Amici warn against accepting the Arizona Legislature’s interpretation of the Constitution because it could jeopardize not only redistricting laws passed by initiative, but all manner of elections laws adopted by initiative or referendable by citizen vote, as well as even many state constitutions that were ratified by the people. 

If Arizona’s redistricting commission is unconstitutional because the legislature did not draw the districts or delegate authority to the commission to do so, so too are the many election law initiatives that were not passed by the legislature and might contradict laws the legislature might pass on its own.

10. Brief of Founding Era Historians: Jack N. Rakove; Richard R. Beeman; Alexander Keyssar; Peter S. Onuf; and Rosemarie Zagarri

Summary:  That sovereignty ultimately rests in the people was one of the fundamental tenants of the Founding Era.  By limiting the power of state legislatures to pass elections regulations, the Framers were trying to protect norms of equal representation.  The modern initiative process is fully consistent with the Framers’ views on popular sovereignty and delegated political authority, in which the power to legislate transcended the institutional legislature.  

Eighteenth-century Americans understood that specific powers could be reassigned from one department of government to another. They also believed that the people themselves were the originating source of all the power of government. They were the true sovereign in the American understanding of republican government. It was fully within their power to relocate this authority from a state legislature that was perceived to have wielded it for politically improper purposes.

11. Brief of Legal Scholars and Historians of Congressional Redistricting

Summary:  Congress passed a statute, 2 U.S.C. § 2a, that expressly authorized states to draw congressional districts “in the manner provided by the law thereof.”  Congress’ express permission gives each state the right to choose whether to allow the legislature or a commission to draw the lines, give the courts or governors a role, or create other rules.

The legislative history demonstrates that the 1911 change in language—enacting the same operative language that now appears in § 2a—was deliberate, that it was carefully considered by the Congress, and that it was designed to do exactly what it appears to do: to authorize States like Arizona to draw federal district lines by any means authorized by State law.

12. Bi-Partisan Brief of State and Local Officials – WA Secretary of State Kim Wyman; Former Mayor Michael Bloomberg; Former RI Gov. Lincoln Chafee; Former AZ Attorney General Terry Goddard; Former WA Gov. Christine Gregoire; Former NM Attorney General Gary King; Former WA Attorney General Rob McKenna; Former AZ Gov. Janet Napolitano; Former Maryland Gov. Martin O’Malley; Former WA Secretary of State Sam Reed; Former PA Gov. Edward Rendell; Former Montana Supreme Court Justice Jim Regnier; Former NY Attorney General Dennis Vacco; Former AZ Attorney General Grant Woods.      

Summary:  Arizona’s use of its legislative powers is consistent with basic principles of federalism.  Arizona voters have exercised their authority under the Elections Clause to address what could otherwise be the intractable problem of gerrymandering.  The proposed ruled would threaten States’ efforts to address not only gerrymandering, but also a host of other electoral issues.

If adopted, appellant’s rule would impede the development of state tailored solutions to gerrymandering, hinder any innovative federal election regulation that does not begin and end with State legislatures, and thwart the right of voters to participate meaningfully in the political process.

13. Brief of U.S. Solicitor General for the United States

Summary:  Appellant lacks standing to bring this suit—any injury is speculative in that appellant assumes that state officials would not implement a redistricting plan enacted by the legislature.  Regardless, a federal district court is not the proper place for an internal dispute between Arizona’s political actors to be heard.  Even if Appellant has standing, 2 U.S.C. § 2a(c) gives the Commission the authority to draw Arizona’s congressional districts.

The specific purpose of the change [of language in 2 U.S.C. 2(a)(3)] was to acknowledge state experimentation with a more populist approach to lawmaking and to enable the people of a State to use whatever popular-voting mechanisms might be available under state law to resist gerrymandering by the state legislature. 

14. Brief of State Attorneys Generals for: Washington; California; Colorado; Connecticut; Hawaii; Idaho; Massachusetts; Mississippi; New Mexico; New York; Oregon; Pennsylvania; and Virginia

Summary:  The States are entitled to structure their lawmaking processes as they see fit; the Elections Clause does not disturb that authority.  Appellant’s interpretation of the Clause threatens the States’ diverse approaches to redistricting as well as innumerable state laws regulating the time, place, and manner of congressional elections.  Appellant’s interpretation calls into question other successful state voter initiatives, such as:  women’s right to vote (Arizona and Oregon); the adoption of voter identification requirements (Mississippi and Arizona); the establishment of new political parties (Massachusetts); and the process for temporary replacement of a United States Senator (Alaska).  Respecting state sovereignty in this arena serves important federalism values.

At the very least, this Court should avoid any broad holding that would call into question States’ ability generally to use popular democracy to adopt laws regulating congressional elections.

Download and view briefs. 


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