Arizona State Legislature v. Arizona Independent Redistricting Commission (Amicus Brief)

The Supreme Court agreed to hear a case that could drastically limit the ability of voters to take responsibility for redistricting decisions out of the hands of legislators.

The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, challenges a state constitutional amendment adopted in 2000 by Arizona voters which created a politically neutral commission drawing new boundaries for the state’s congressional districts every ten years. Before the amendment, the state legislature, as in many states, had been responsible for setting and adjusting district lines.

The Commission drew district boundaries in 2001 and again in 2011. After the 2011 redistricting, however, the Republican-controlled state legislature sued the Commission, arguing that use of the Commission to draw maps violated the U.S. Constitution’s Elections Clause. At issue is a portion of the Elections Clause that provides that, the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” Because redistricting traditionally has been construed to fall within the ambit of “manner” of holding elections, Arizona argues that the strict language of the clause means that congressional districts can be drawn only by state legislatures.

A panel of three federal judges rejected the challenge earlier this year in a 2-1 decision, holding that the use of the term “legislature” in the Elections Clause should be read to refer to the entirety of a state’s legislative process, including ballot initiatives passed by the voters.

If the Supreme Court were to conclude that the Elections Clause prohibits citizen efforts to take the power to redistrict away from elected politicians, the decision could have far-reaching ramifications. A growing number of states in recent years, including California, have given independent commissions the power to set the boundaries of their congressional districts. In fact, almost half of the states now use redistricting commissions in some form, including as a backup if the legislature is unable to pass a redistricting plan. Efforts to adopt similar sorts of reforms are currently underway in Ohio, Wisconsin, New York, and Illinois – with Arizona and California frequently serving as models for proposed reforms.

A ruling in favor of the Arizona legislature could extend well beyond redistricting commissions. A strict reading of the clause also could throw into doubt a number of longstanding state practices, such as the power governors have in most states to veto redistricting bills. A ruling, likewise, could undermine constitutional amendments in places like Florida that have left redistricting power in the hands of elected officials but put sharp limits on what they can and cannot do in redistricting process. At its broadest, an expansive ruling could even jeopardize things such as California’s open primary system – also adopted through ballot initiative – and constitutional provisions in places like Arkansas that set out who is an eligible voter.

The District Court opinion and dissent are available here.