Supreme Court upholds Arizona experiment against partisan politics

The ruling allows a nonpartisan commission to draw Arizona's election maps – a model to curb political gerrymandering also operating in six other states.

In a major victory for those seeking to reduce the role of partisan politics in drawing election districts, the United States Supreme Court on Monday ruled that Arizona’s Independent Redistricting Commission does not violate the Constitution’s "elections clause."

The 5-to-4 ruling gives a green light to states that may be interested in experimenting with a different way to draw state and federal election districts by turning that power over to a nonpartisan body.

Similar independent redistricting commissions are already operating in six other states. Those states are California, Hawaii, Idaho, Montana, New Jersey, and Washington.

An additional seven states use redistricting commissions in an advisory role to assist lawmakers in drawing election maps.

The central issue in the case was whether Arizona’s Independent Redistricting Commission violated a constitutional requirement that voting rules and procedures for federal elections be set by the state legislature.

Since Arizona’s redistricting commission is completely independent of the legislature, challengers said, it violates the terms of the Constitution’s elections clause.

That clause reads in part: “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”

The majority justices – the court’s liberal wing plus swing justice Anthony Kennedy – embraced a broad reading of the word “legislature.”

Rather than limiting that term to a body of elected lawmakers, the majority justices said “legislature” could also include an action undertaken by the people through the referendum process.

“Our precedent teaches that redistricting is a legislative function, to be performed in accordance with the state’s prescriptions for lawmaking, which may include the referendum and the governor’s veto,” Justice Ruth Bader Ginsburg wrote in the majority opinion.

“We see no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking,” she said.

In a dissent, Chief Justice John Roberts said the court was rewriting the text of the Constitution by editing out four key words.

“The effect of the majority’s decision is to erase the words ‘by the legislature thereof’ from the Elections Clause,” the chief justice said. “That is a judicial error of the most basic order.”

He added: “The majority today shows greater concern about redistricting practices than about the meaning of the Constitution.”

The Arizona case was being closely watched by election reform advocates because Arizona’s independent redistricting commission was viewed as an innovative way to undercut the influence of partisan gerrymandering in the drafting of new election districts.

In most states, the party that controls the state legislature seeks to maximize its success at the polls by drawing district lines that favor its candidates and disadvantage the opposing party.

Voters in Arizona decided to try a different way to draw voting districts. A 2000 ballot initiative amended the state constitution by assigning the authority to redraw state and congressional districts to a five-member commission.

The commission is composed of two Democratic appointees, two Republican appointees, and an independent member.

In 2012, members of the Republican-controlled Arizona state legislature became dissatisfied with the commission and filed suit charging that the independent body was unconstitutional. The suit claimed that the commission was usurping authority that the Constitution assigns exclusively to the state legislature.

In her majority opinion, Justice Ginsburg said the Arizona Legislature’s lawsuit was aimed at disempowering the state’s voters from directly asserting their own legislative authority over redistricting.

“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,’ “ she said, quoting James Madison.

“Arizona voters sought to restore the core principle of republican government, namely, that the voters should choose their representatives, not the other way around,” she said.

“The Elections Clause does not hinder that endeavor,” Ginsburg added.

The dissenting justices disagreed. “The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, ‘the legislature’ is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process,” Roberts wrote.

“Put simply, the state legislature need not be exclusive in congressional redistricting, but neither may it be excluded,” he said.

The chief justice said Arizona residents concerned about redistricting may ask Congress for help in changing election regulations, or they could seek to amend the Constitution to change the election process.

“Unfortunately, today’s decision will only discourage this democratic method of change,” Roberts said. “Why go through the hassle of writing a new provision into the Constitution when it is so much easier to write an old one out?”

In a separate dissent, Justice Clarence Thomas noted an irony in the majority’s decision in the Arizona case holding itself up as “a great defender of direct democracy in the states” only days after the court invalidated state constitutional amendments passed by voters in an array of states in its same-sex marriage decision.

“Just last week, in the antithesis of deference to state lawmaking through direct democracy, the court cast aside state laws across the country – many of which were enacted through ballot initiative – that reflected the traditional definition of marriage,” Justice Thomas said.

Throughout the term, he said, the court refused to review cases in which an appeals court had set aside state laws passed by ballot initiative. “In each decision, the cheers for direct democracy were conspicuously absent,” Thomas said.

“The ballot initiative in this case, unlike those the court has previously treated so dismissively, was unusually democracy-reducing,” he said. “It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee.”

Thomas added: “I would dispense with the faux federalism and would instead treat the states in an evenhanded manner. That means applying the Constitution as written.”

Justices Thomas and Antonin Scalia both said the case should have been dismissed because, in their view, the Arizona legislature lacked the necessary legal standing to bring the lawsuit.

In addition to Roberts, Scalia, and Thomas, Justice Samuel Alito also dissented in the case.

Joining Ginsburg’s majority opinion were Justices Kennedy, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Election reform advocates hailed the decision as an important opening for further progress against political gerrymandering.

“Today’s ruling is a big win for voters because it validates the power of citizens to use the ballot box to combat dysfunction,” Michael Li, a lawyer with the Brennan Center for Justice at New York University Law School, said in a statement.

“By leaving in place important redistricting reforms in Arizona and California, the Supreme Court reaffirmed the principle that voters have the freedom under the Constitution to experiment with ways to make their democracy work better,” he said.

“Today’s ruling will help Arizona put an end to political gerrymandering,” Caroline Fredrickson, president of the American Constitution Society, said in a statement.

“Unfortunately, these attacks on fair elections are a nationwide epidemic,” she said. “Elections are neither fair nor just when their outcomes are predetermined by legislatures.”

The case was Arizona State Legislature v. Arizona Independent Redistricting Commission (13-1314).