Whatever else may be said, none can argue that it has been a boring run of days in the rarefied air of the Supreme Court. Tax subsidies salvaged to save the ACA, gay marriage established in all fifty states, the Fair Housing Act of 1968 upheld, the “three strikes” federal sentencing law dealt a blow, and the attempt by Texas to enact a wholesale closure of abortion clinics thwarted.
Of course, they also ruled that health concerns over mercury in your drinking water are less important than corporate profits, and that the state killing condemned prisoners in agonizing fashion with sub-standard death drugs is acceptable. A mixed bag, to be sure, but it hasn’t been dull.
Their redistricting ruling, however, may be the most consequential of all, and that is saying something. It will take a bit of time in the telling to explain why.
Fifteen years ago, back in the year 2000, voters in the state of Arizona approved a ballot measure to appoint an independent commission to decide how the state’s congressional districts would be re-drawn, taking that process out of the hands of the state legislature, which at the time was GOP-controlled. They did not like that.
“Gerrymander” – Verb – To manipulate the boundaries of an electoral constituency so as to favor one party or class.
That’s precisely what Arizona voters were tired of: the manipulation of district lines by partisan politicians who sought to protect elected officials who spread the butter on their side of the bread. When you have a moment, take a look at some of the grotesquely contorted district maps across the country.
Texas is a wonderful example. These districts look like Tetris pieces that were gnawed on by an angry dog … but there is method to the seeming madness. Draw the lines just so, full in the knowledge of who votes how and where, and you can construct a congressional district that may as well have a moat along with high walls with archers standing post. Utterly unassailable in any election. In the process, you can “redistrict out” any elected officials you deem unsavory. Dennis Kucinich lost his Ohio seat in exactly this fashion. It is an old story too often repeated.
Arizona, in 2000, looked to go a different way, and the voters approved an independent commission to decide how the map would be drawn. The GOP challenged the new process, arguing that the Constitution states the legislature holds sway over such matters. Specifically, according to the Constitution, that “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”
In the fullness of time, it all wound up in litigation, in a wrangle over the definition of the word “legislature” that eventually reached the Supreme Court. What is a “legislature,” exactly? Is it a body of elected officials? Is it a body appointed by the people to perform a specific legal purpose? Can it be both? One argument:
The commission … argued that at the time the Constitution was written, the word “legislature” was more broadly interpreted to mean “the body that makes the laws.” And since the people can also constitute a body that makes laws, he argued, they have the power to create an independent commission through a ballot initiative. Justice Sonia Sotomayor took this view during oral arguments. “If a state constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn’t that the legislative process?” she asked.
“It would thus be perverse to interpret ‘Legislature’ in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be ‘chosen … by the People of the several States,'” Ginsburg wrote, noting that congressional maps drawn by legislatures are often rigged to keep one party in power.
By siding with Arizona’s commission, the court acknowledged the problem of partisan gerrymandering. “[W]hen the district-drawing process is controlled by elected officials, the result too often is a process dominated by self-interest and partisan manipulation,” political scientists Thomas Mann and Norman Ornstein wrote in an amicus brief supporting the independent commission in the case. “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 Supreme Court agreed.
And there you have it. By a vote of 5-4, and with much hair-pulling and cloth-rending on the part of the minority, that independent commission in Arizona was granted the right and power to draw congressional district maps by their own lights, free from the partisan considerations of the state’s controlling party.
This decision will not be relegated solely to Arizona. A full third of the congressional districts across the nation fall under the rubric of this ruling, because Arizona is not nearly the only state seeking to use independent commissions to draw congressional district boundaries. California, Hawaii, Montana, Idaho, Washington, New Jersey, Indiana, Connecticut, Iowa, Maine and New York all practice some form of this commission process. More will likely follow.
In the last two midterm elections, the GOP managed to hold or expand their majority in Congress despite losing the overall national count by more than a million votes. They pulled this neat little trick because of all the gerrymandered districts they had constructed across the country. The Supreme Court’s ruling in Arizona State Legislature v. Arizona Independent Redistricting stands a solid chance of undoing that math, and that might just change everything.