In a 5-4 decision, the U.S. Supreme Court ruled today that Arizona’s independent election redistricting commission does not violate the “election clause” and is therefore constitutional.
After a voter initiative to create an independent redistricting commission in Arizona passed in 2000, there has been an ongoing debate about whether the commission is legal. In the Arizona Constitution, the elections clause states that redistricting powers fall on the “Legislature thereof,” and the plaintiff in today’s case, the Arizona Legislature, said the word should be defined literally — i.e., the law-making body of the state. The defendant, the Arizona Independent Redistricting Commission, argued that the term should be interpreted more broadly.
A three-judge panel in Arizona voted 2 to 1 in agreement with the AIRC in February 2014, and the Supreme Court upheld that decision this morning with its ruling on Arizona State Legislature v. Arizona Independent Redistricting Commission.
“We now affirm the District Court’s judgment . . . We hold that lawmaking power in Arizona includes the initiative process [and] see no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking,” explained Justice Ruth Bader Ginsburg, who authored the majority opinion.
“The history and purpose of the [Elections] Clause weigh heavily against precluding the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts. Such preclusion would also run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government.”
While the legal arguments of today’s case focused largely on the meaning of the word “legislature,” the issue at heart of the case was whether people have the right to use voter initiatives to influence government and prevent gerrymandering — the practice of drawing voter district lines to favor one’s own party. (As we learned in today’s brief, “the term ‘gerrymander’ is a portmanteau of the last name of Elbridge Gerry, the eighth Governor of Massachusetts, and the shape of the electoral map he famously contorted for partisan gain, which included one district shaped like a salamander.)
According to Amy Howe of SCOTUSblog, “the Court has several times refused to address the question whether partisan gerrymandering violates the Constitution. This decision gives the states an opportunity to deal with partisan gerrymandering by giving an independent commission power to draw federal congressional districts.”
Here’s Ginsburg on the subject: “Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering. It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by ‘the Legislature.’”
Meaning, if the Supreme Court ruled in favor of the Arizona Legislature, the legality of many other independent government commissions could be called into question, and it would endanger the ability of the people to use voter initiatives or referendums to influence law — a prospect that seems rather antithetical to the idea of “government of the people, by the people, and for the people.”
Democrats are hailing today’s decision as “fantastic news.” Emails from U.S. Congressman Ruben Gallego state that the Supreme Court is “[siding] with democracy — not right-wing special interests . . . Arizona voters wisely chose to take redistricting out of the hands of the Legislature to ensure the diverse communities and interests of our state were fairly represented in Congress. I’m glad the Supreme Court agreed with the wisdom of that decision and that Arizonans will continue to have the fair and competitive districts our voters deserve.”
Justice Ginsburg delivered the opinion, and was joined by Justices Anthony Kennedy, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Chief Justice John G. Roberts filed a colorful dissenting opinion in which Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito joined. (Both Scalia and Thomas also filed dissenting opinions and signed on to each other’s.)
Roberts called today’s decision “a magic trick with the Elections Clause” that runs counter to history. “Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from ‘the Legislature’ of each State to ‘the people thereof.’ The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States,” he writes.
“What chumps! Didn’t they realize that all they had to do was interpret the constitutional term ‘the Legislature’ to mean ‘the people’? The Court today performs just such a magic trick with the Elections Clause.”
He goes on to call the majority decision “deliberate constitutional evasion,” saying that it does “what the proponents of the Seventeenth Amendment dared not: revising ‘the Legislature’ to mean ‘the people.’ 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.”
“Normally . . . I would express no opinion on the merits [of a decision like today's] unless my vote was necessary to enable the Court to produce a judgment,” writes Scalia in his dissent. “In the present case, however, the majority’s resolution of the merits question (‘legislature’ means ‘the people’) is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the Chief Justice.”
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