Supreme Court Approves States Outsourcing Redistricting to Commissions
SCOTUS has upheld the use of election commissions to draw Congressional district lines.
The Supreme Court has upheld the use of election commissions to draw Congressional districting lines.
AP (“Justices uphold Arizona’s system for redistricting“):
The Supreme Court on Monday upheld the power of independent commissions used by 13 states to draw congressional districts, in a ruling that could spur efforts in other states to reduce partisan influence in the creation of electoral districts.
The justices voted 5-4 to reject a constitutional challenge from Arizona’s Republican lawmakers to the commission that the state’s voters created in 2000. Among the other states affected is California, which uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.
“Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around,” Justice Ruth Bader Ginsburg said in her opinion for the court.
Ginsburg said that there is “no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.” Justice Anthony Kennedy and Ginsburg’s three liberal colleagues joined her opinion.
In dissent, Chief Justice John Roberts accused the majority of approving a “deliberate constitutional evasion.”
“The court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this court,” Roberts said. Justices Samuel Alito, Antonin Scalia and Clarence Thomas signed onto Roberts’ opinion.
The argument against independent commissions rests in the Constitution’s Election Clause, which gives state legislatures the power to set “the times, places and manners of holding elections for senators and representatives.”
States are required to re-draw maps for congressional and state legislative districts to account for population changes after the once-a-decade census.
Some states have sought to rein in lawmakers’ power over drawing political boundaries because the justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.
This practice has been around awhile now and I didn’t realize the legality was even in dispute. The Election Clause merely states that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.” So long as Arizona’s legislature passes into law the results of the commission’s work, they’re in fact “prescribing” the district lines.
Were the court to have ruled otherwise would have, logically speaking, upended the entire framework of modern government. After all, almost all of the power assigned to “The Congress” in Article I, Section 8 is in fact exercised on a day-to-day basis by various Executive bureaucracies under the mandate of Congress. Congress itself has, if anything, cursory oversight over such things as regulating commerce with foreign nations, establishing post offices and post roads, promoting the progress of science and the useful arts, making rules for the regulation of land forces, and all the rest.
More directly, Congress frequently outsources the writing of legislation—mostly to staffers but also to the aforementioned Executive bureaucracies and not infrequently to outside lobbying groups. While the latter, in particular, often comes under fire it ultimately doesn’t matter given that Congress itself ultimately has to pass the measures before they go into law.
For that matter, the judicial oversight of the redistricting in the states still subject to it under the Civil Rights Act of 1965 would be plainly unconstitutional.
UPDATE: A commenter points out that the situation in Arizona is more complicated than portrayed by the AP article and that, in fact, the state legislature is entirely bypassed. SCOTUSBlog’s Lyle Denniston:
In Arizona, the voters in 2000 reacted to a series of troubles in drawing new election districts by approving Proposition 106. Every redistricting cycle in the state since the 1970s, Justice Ginsburg noted, had “sparked controversy,” with several plans failing in court tests.
The ballot measure specifically targeted “the practice of gerrymandering” and cited a need to improve voter and candidate participation in elections. The state constitution was altered to take the congressional districting power away from the legislature, and turn it over to a five-member Arizona Independent Redistricting Commission.
While the state legislature can make suggestions, the commission need not follow them, and the maps that it draws for electing members of the Arizona delegation in the House of Representatives are binding and cannot be altered by the legislature.
On its face, that’s blatantly unconstitutional. Denniston explains Ginsburg’s reasoning as to why it’s not:
In making its decision, the Court noted that studies show that giving the task of drawing election districts to nonpartisan or bipartisan commissions leads to “districts both more competitive and more likely to survive legal challenge.” It has been noted widely that, due mainly to partisan gerrymandering by state legislatures in recent years, not many seats in today’s House of Representatives remain competitive at election time.
The majority’s opinion, written by Justice Ruth Bader Ginsburg, displayed a keen awareness of the activity of partisan gerrymandering, and noted that even the Founder deemed the “father of the Constitution,” James Madison, was worried about it in the dawn of the constitutional era.
“The problem Madison identified,” Ginsburg wrote, “has hardly lessened over time.” She made a pointed reference to “the current climate of heightened partisanship.”
In fact, she referred to party-driven redistricting as a “problem” in the very opening words of her opinion, and noted immediately that the Supreme Court had sharply criticized the practice even as it chose to do nothing itself about it because it could not find a “workable standard” to support a constitutional limitation.
While putting the problem in the hands of a state’s voters, if they are willing, the decision also amounted to a strong reaffirmation of the concept of direct democracy — that is, giving a state’s voters the authority to pass laws that they want and the authority to veto those that their legislature passes but they do not want. The decision gave an expansive interpretation of the phrase “state legislature” in the federal Constitution and in a federal law dividing up power between Congress and the states in writing laws to govern elections to Congress and the presidency.
That is a strained ruling, indeed. Essentially, Ginsburg and her co-signers are saying that citizens, through the referendum process, are acting as a de facto state legislature. While that’s not an absurd argument, it’s a hell of a stretch.