State lawmakers contend voters were legally powerless a dozen years ago to take away from them the power to draw congressional district lines.
In legal papers filed in federal court, attorneys for the Republican-controlled Legislature argued that the 2000 ballot measure creating the Independent Redistricting Commission runs afoul of the U.S. Constitution. That document says procedures for electing members of Congress “shall be prescribed in each state by the Legislature.”
Commission lawyers do not dispute that point. But they have told the special three-judge panel considering the issue that Arizona voters, as the ultimate lawmakers, are free to delegate certain legislative duties to a panel other than the formal “Legislature.”
And they contend the five-member panel, four of whom are chosen by lawmakers, fits that definition.
The legislative attorneys, in the latest filing, called that argument “misleading.”
“The meaning of 'Legislature' in the (constitutional) Elections Clause has not been, nor can it be, redefined to exclude the elected representative body that legislates for the state,” the lawmakers' legal team wrote.
The move comes as voters are choosing who will represent them in the state's nine congressional districts for the next two years.
Republicans have contended the five-member commission, including two Democrats, two Republicans and an independent, drew the lines in a way to give Democrats the edge even though they are outnumbered by Republicans -- and, for that matter, independents -- in voter registration.
Attorney Joshua Carden said nothing in this case will affect the November election. But the lawmakers want a court order allowing the Legislature, likely to remain in Republican hands, to redraw the lines ahead of the 2014 race.
Central to the legal fight is the 2000 voter-approved state constitutional amendment giving the five-member commission the decennial task of drawing legislative and congressional lines. Groups unhappy with those lines, mainly aligned with Republicans, have filed separate lawsuits saying the commission did not follow legal procedures.
But this challenge is based on the contention that the U.S. Constitution allows only the Legislature itself to decide congressional boundaries.
“That language is clear,” said House staff attorney Peter Gentala. “There's nothing confusing about it.”
And he rejected arguments by commission lawyers that it fits the definition of a legislative body for Arizona, at least for the limited purposes of drawing the lines.
“Each time the Supreme Court has said that the term 'Legislature' has one meaning,” Gentala said. “It means the representative body that makes the laws of the state.”
Gentala said the fact that the majority of commissioners are selected by legislative leaders does not cure that legal defect.
Challengers, however, may have another legal problem.
Commission lawyers point out that lawmakers knew more than a decade ago that the initiative took away their congressional redistricting powers. Yet they did not mount a challenge back then, or even last year before the commission finalized the new maps for the coming decade.
Gentala said that does not preclude legislators from filing suit now.
“The (U.S.) Constitution does not become a dead letter through inaction by a government official that has been given authority by the Constitution,” he said.
If the court buys the legal arguments, that effectively wipes out the commission's authority over congressional districts. And that, by extension, would require the Legislature to come up with its own maps ahead of the 2014 race.
The court has not set a date for a hearing on the issue.