LOS ANGELES – Just last November, California voters experienced a bracing novelty — a handful of competitive state assembly elections — after decades of blatant gerrymandering in which the legislature drew lines that lopsidedly favored the party in power or willfully protected incumbents on both sides of the aisle.

One big reason for the change: a bipartisan citizens redistricting commission created by a statewide ballot initiative to govern state electoral boundaries and later expanded to cover congressional seats. No longer are districts here tailored to protect friends and family — as they infamously were 35 years ago when the late Rep. Philip Burton, a Democratic power broker, engineered a congressional district for his brother, John, that included parts of four counties and was connected in some places only by waterways and rail yards.


But California’s modest gains — along with various electoral reforms in more than a dozen other states — would be at risk if the Supreme Court rules in favor of a little-publicized suit brought by Arizona’s state legislature, which is seeking to invalidate a similar redistricting commission that drew the most recent congressional boundary lines in that state, on the grounds that it violates the elections clause of the Constitution, which grants state legislatures the power to set the “times, places and manner” of congressional elections. The court is set to hear oral arguments in the case on Monday.

“For entrenched political interests around the country, it would be the biggest New Year’s Eve of all,” if the court backed the legislature, said Michael Waldman, president of the Brennan Center for Justice at New York University Law School, which has been following the case closely and filed a friend-of-the-court brief on behalf of the Arizona commission.

Hyperpartisan redistricting has been widely condemned by political experts of both parties as one of the principal contributing factors to the current dysfunction of Congress. The issue has been the source of such bitter wrangling that in 2003, a group of Democratic Texas state senators fled to New Mexico for more than a month in an attempt to block a vote on a districting plan that favored Republicans. So the Arizona case has the potential to be explosive.

A range of complex issues are at play in the case, from whether the Arizona legislature has standing to sue in the first place, to whether the matter is a “political question” not subject to constitutional review by the court, to just what the most common 18th century definition of the word “legislature” really was. But the heart of the matter is simple: Lawyers for the legislature argue that the language of the elections clause is clear, and “legislature” means just that, while supporters of the districting commission contend that in states whose constitutions allow for ballot initiatives and referendums – like Arizona and California – the citizenry itself is empowered to act as a legislature, and can outsource the job of redistricting as it chooses.

It just so happens that Arizona’s legislature is Republican-controlled. But the issue is far from a partisan one. Three former Republican governors of California who themselves endured districting schemes that disadvantaged their party — George Deukmejian, Pete Wilson and Arnold Schwarzennegger — have filed an amicus brief in support of the Arizona commission. Their chief counsel is Theodore B. Olson, the former solicitor general and the man who helped win Bush v. Gore in the Supreme Court.

“The text, structure and history of the Elections Clause make clear that a state legislature, or the people of a State exercising legislative power through the initiative process, may delegate authority to regulate congressional elections to another body duly created under state law,” their brief reads in part.

In fact, California Republicans have little interest in upending the new status quo here. Thanks in part to the districting commission — which was first created by a ballot measure in 2008 to draw state legislative lines and then expanded in 2010 to cover congressional ones — three Democratic incumbents in the state Assembly lost to Republican challengers in November, the first time that had happened here in 20 years.

And because the new districts are truly competitive, it’s likely that the three new GOP incumbents — all from Southern California — will be vulnerable to Democratic challengers in 2016, when the presidential election is likely to prompt far higher voter turnout.

The 14-member California commission is made up of five Democrats, five Republicans and four members from neither major party. They are chosen in a multistep process in which a three-member panel of the state auditor’s office submits a list of 60 preselected candidates to the bipartisan leaders of the legislature, who then reduce the list to 12 candidates from each group. The auditor then randomly draws three Democrats, three Republicans and two members from neither major party to become the first eight commissioners, who then select the remaining six members from the applicants remaining in the pools. The commission draws the lines, without approval by the legislature.

The California Supreme Court has repeatedly ruled in favor of the new districts in response to legal challenges, and the Justice Department granted them preclearance under the 1965 Voting Rights Act.

The consensus is that the new districts have produced a much different result than ones that would have been drawn by the Democratic-controlled legislature alone. For example, the most powerful national Republican in the state is Rep. Kevin McCarthy of Bakersfield, the House majority leader. But if the state legislature controlled redistricting, it could give McCarthy’s home-state rival Nancy Pelosi several new Democratic-leaning districts around the state.

“I thought the commission did a so-so job, but they did 10 times better than Republicans would have done under the Democrats,” said Allan Hoffenblum, a former Republican consultant here who now publishes the California Target Book, a handicapping guide to state political races. “I don’t think the Republicans in Washington would be very happy if the court ruled in favor of the Arizona legislature, and I don’t think the voters in California would be, either.”

Hoffenblum said friends had told him the Olson brief, with its lengthy history of California’s districting wars, was aimed at Justice Anthony Kennedy, a frequent swing vote on the court and himself a California Republican, “to remind him of how badly California Republicans had been abused by the districting process over the years.”

Erwin Chemerinsky, a liberal constitutional law professor at the University of California, Irvine, agreed that “this case is very important for California,” adding, “Partisan gerrymandering is a serious problem, and this is an important solution.”

California has been struggling with redistricting almost from the beginning of statehood in 1850. The Gold Rush brought the highest concentration of early settlers to the northern part of the state, but as Southern California’s population grew at the turn of the past century, Northern California counties sought to preserve their power by diluting the influence of the south, winning voter approval for state Senate districts based on geographic area, not population. The effect was that, by 1960, Los Angeles County had a population of 6 million people but just one state senator, while a Northern California district with a population of less than 15,000 also had one senator. For more than 30 years, citizens groups sponsored ballot measures in vain to return to a proportional system, but only a Supreme Court ruling that such districts had to be roughly equal in population resolved the matter.

By the 1960s, large Democratic majorities in the legislature produced districts that overwhelmingly favored their party. That led to a bitter series of battles with Republican Gov. Ronald Reagan, who was elected in 1966, and ultimately to a court-imposed districting plan in 1973. Twenty years later, with Wilson also facing a Democratic legislature, the battles repeated themselves, again prompting court intervention. The current citizens commission was born of this bitter history.

A broad ruling in favor of the Arizona legislature could negatively affect a number of states. In Florida, for example, a constitutional amendment gave final say over redistricting not to a commission but to the courts. Other changes in election law passed by initiative or state constitutional amendment could also be in jeopardy — including California’s recent adoption of an electoral regime in which the top two finishers in primary elections, regardless or party or percentage of votes received, face each other in the general election. Indeed, given its sheer size, California is effectively the leading edge in such reforms and arguably has the most at stake in this case.

“The strongest argument for this kind of commission is when the political system itself has a vested interest in not changing,” said the Brennan Center’s Waldman, who is writing a book on the history of elections. “That’s when the people step in. And at a time when people are so concerned about polarization and partisanship and gerrymandering, it’s hard to imagine that the Supreme Court would step in to make it just that much harder to do something about the problem. The justices have been pretty clear about their concerns about gerrymandering. They just haven’t known how to stop it.”