Supreme Court upholds Arizona redistricting commission

The Supreme Court on Monday ruled that Arizona’s use of an independent commission to redraw congressional districts is constitutional, leaving the state’s maps intact for the 2016 election — a victory for reform groups pushing for removing politically motivated state lawmakers from the redistricting process.

In a 5-4 decision, the court found that the commission created by a ballot initiative in Arizona falls under the definition of “legislature” in the federal constitution’s Elections Clause — which states that “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the Legislature thereof.”


Justice Anthony Kennedy joined the court’s liberal justices to rule in favor of the commission.

“The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have ‘an habitual recollection of their dependence on the people,’” Justice Ruth Bader Ginsburg wrote in the majority opinion, quoting the Federalist Papers. “The Elections Clause does not hinder that endeavor.”

The court’s decision on Monday goes beyond Arizona and reaffirms maps drawn in other states through a similar process. California also has a redistricting commission that was set up during the past decade through ballot initiative.

It has also spurred efforts in several other states where activists or state officials have expressed interest in creating independent redistricting commissions of their own, said Kathay Feng, national redistricting director for Common Cause.

In Illinois, an initiative to create an independent commission could be on the 2016 ballot; in Maryland, GOP Gov. Larry Hogan has expressed interest in reforming the redistricting process in a similar way; and in several Midwestern states — such as Ohio and Wisconsin — efforts to create redistricting commissions are in nascent stages.

“There were a lot of states that had put the pause button and probably would have scaled back their efforts if the decision had gone the other way,” Feng said. “Now, they are super charged to move forward.”

The case was brought by the GOP-controlled Arizona Legislature against the state’s Independent Redistricting Commission. The Republican lawmakers had claimed that isolating the Legislature from the redistricting process violates the Elections Clause, while the commission maintained that the definition of “legislature” in the clause goes beyond just the legislative body to include laws passed by voters through initiatives and referenda.

“The court today reaffirmed that neither Congress nor the Constitution have removed the right of the people to govern themselves,” said Justin Levitt, a redistricting expert at Loyola Law School in Los Angeles who filed an amicus brief on behalf of Arizona’s commission. “Each state can decide for itself who can regulate federal elections. That means that we, the people, are still fundamentally in charge of the legislatures and not the other way around.”

Attorney General Loretta Lynch, in a statement, called the decision “a victory for the people of Arizona, for the promise of fair and competitive elections and for the principles of democratic self-governance that make our nation exceptional.”

“Arizona’s approach to redistricting is an innovative and effective advance in the effort to reduce gerrymandering and give all Americans an opportunity to make their voices heard,” Lynch said.

Chief Justice John Roberts wrote the primary dissent, calling the decision “a magic trick with the Elections Clause.”

“That Clause vests congressional redistricting authority in ‘the Legislature’ of each State,” Roberts wrote. “An Arizona ballot initiative transferred that authority from ‘the Legislature’ to an ‘Independent Redistricting Commission.’ The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment [direct election of U.S. senators] dared not: revising ‘the Legislature’ to mean ‘the people.’”

Arizona’s Independent Redistricting Commission was created after voters in 2000 passed Proposition 106, an amendment to the state constitution that gives the responsibility of drawing congressional lines to an independent, five-member body. The map the commission drew in 2011 led to Democrats winning five of the state’s nine House seats in 2012 (they currently hold four seats).

Five other states — Hawaii, Idaho, Montana, New Jersey and Washington — draw their lines through commissions with some involvement from legislatures (Montana has only one congressional district given its current population). Even more states have some advisory commissions and backup commissions that play some role in the redistricting process.

“Now these states that have redistricting commissions can rest easy,” said Nate Persily, a redistricting expert at Stanford Law School. “The court really walked away from the brink on this one. This really does settle a question that had been open … whether ‘the legislature’ means just the legislature or the legislative process.”

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