Who should draw districts – politicians or independent commissions?

By Cara L. Gallagher
Weekend Contributor

GerrymanderArizona’s political civil war calls our attention back to the Supreme Court for another case about political elections. The dispute in Arizona State Legislature v. Arizona Independent Redistricting Commission rests on the definition of who holds the power of a critical component of political agency in a state – the power to redraw districts. In 37 states, the legislatures have the power to redraw districts. Arizona used to be one of those states until, in 2000, voters changed the state Constitution redistributing that power from legislators to an independent, bipartisan commission.

Population changes of the last twenty years have shifted the political landscape of Arizona from dark red to purple, especially in areas dominated by minority and immigrant voters. The state’s record of electing Democrats in presidential elections prior to 2000 was two (Truman and Clinton). As has been the case in many purpling states once considered true blue or red, swift efforts were taken by state legislatures to engineer “safe” districts protected by politically homogenous voters. Party retention and thus continued representation in the House and Senate were the goals of such political gerrymandering. Arizona’s elected state officials, who no doubt had numerous dogs in the fight, redrew districts to protect their incumbency and their parties’ control in state and federal offices.

Cognizant of the moral incompatibility of these realities, Arizona voters took such power out of the legislature’s hands. By way of a ballot initiative, citizens voted 56% to 43% to amend their state constitution and empower an independent bipartisan commission of five members to analyze and redraw districts such that partisan politics could no longer dominate how districts were redrawn. The independent commission would be comprised of four partisan members – two Democrats, two Republicans – and one chairman selected by the four members. The legislature would select the four partisan members from a list provided by a state judge-nominating committee. The committee redrew the map before presenting it to the Arizona Secretary of State who then considers input from the legislature before finalizing it.

As a non-Arizona citizen suspicious of power players rigging the game to ensure job security and political control, it’s hard not to commend such an act of civic restoration. But is it constitutional? Article I, Section 4 highlights the Elections Clause of the Constitution: “the times, places, and manner of holding elections for Senators and Representative shall be prescribed in each state by the legislature thereof.” Where you fall on the outcome of this case resides in the interpretation of the words “by the legislature.”

The Arizona legislature reads “by the legislature” and finds their power usurped by an “unaccountable commission,” or as Paul Clement put it during oral arguments “a divesture of their power” to exercise authority given to them by the Constitution. “The legislature” should be taken to literally mean, as the text says, the elected legislators of the state, not the people. The legislature has been essentially “cut out” of the process because of this amendment, an act of direct democracy that does not align with political practices rooted in representative democracy.

No it hasn’t, argued Seth Waxman, representing the commission, who broadly interprets the state’s definition of “the legislature” as the citizens of Arizona. The commission further argues the legislators’ influence isn’t depleted as they remain part of the selection process and pick four of the five members. They see the ratification of Prop 106 as an expression of direct democracy as celebrated as the Constitution. Arizonans worked to change the districting process through the arduous task of amending their constitution by ballot initiative. If the legislature is unhappy, ultimately they could exercise their far less laborious powers by passing new redistricting laws amenable to Arizonans.

The oral arguments were dense and at times technical during the Justices’ inquiries about language, textualism, direct versus representative democracy, and standing. Scalia challenged Waxman with questions about the text of the Clause and what the definition of “the state” is. Kagan grilled Clement on why the Court should rule against the commission when voter identification and vote-by-mail laws were also the products of state referenda and initiatives.

The Court will decide before the end of June.

Follow Cara on her Supreme Court updates at Twitter @SupremeBystandr.

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

22 thoughts on “Who should draw districts – politicians or independent commissions?”

  1. This is actually one of the most interesting, and most significant, cases to hit the Court in years. I am hopeful that the Court will uphold the constitutionality of the Commission. My own view is that the phrase “times, places and manner of holding elections” relates to matters concerning the conduct and administration of the electoral process. Determining the geographical boundaries of districts does not fall within the scope of that grant of authority. The battle here is not over control of the mechanics of elections; it is rather over control of the electorate.

  2. Idaho Jim

    “There is another troubling case before the SCOTUS. Sould (sic) an election district mean equal human beings or equal eligible voters? Equal number of “persons” ?”


    “…another troubling case…” Seriously? You just said that.

    You want serious?

    To wit,

    “Those who vote decide nothing. Those who count the vote decide everything.”

    ― Joseph Stalin

    Every Communist must grasp the truth; “Political power grows out of the barrel of a gun.”

    – Mao Tse-tung

    Ergo – Abraham Lincoln was a “communist” who took power “…out of the barrel of a gun.” Like Stalin, Lincoln corruptly counted votes in a “time of war” to declare an unconstitutional “Civil War of aggression,” pass unconstitutional proclamations and ratify unconstitutional “amendments” without a quorum, through coercion and under duress, as a despotic tyrant. Lincoln was like a violent husband who would not allow his wife to leave, the very secession that Scotland voted on last year.

    America lives outside the parameters of the Preamble, Constitution and Bill of Rights, in the corruption of Lincoln’s “Reign of Terror” to this day. As the 18th amendment was repealed, the Lincoln “Reconstruction Amendments” must be repealed, according to the law and founding documents.

    The SCOTUS is considering “Fair Housing” law currently. Fair Housing “law” is clearly antithetical and unconstitutional. Private, not governmental, property is a right of individual American citizens prevailing over any perceived “right” of government.

    Understanding that the legal industry is capable of infinite argument on all subjects, well beyond rationality, coherence and objectivity, under the American thesis of Freedom and Self-Reliance, neutral and without bias favoring the first party over the second, with the new “king” or sovereign being the people and the government the subject of the new sovereign, and the Constitutional right to private property and the natural, God-given right to “moveable” or personal property which existed before government was established and employing the simplicity of the American Framers,

    the SCOTUS must find that the People have the right to dispose of private and personal property without interference by government and that any law diminishing the title, possession and disposition of private property by its owner is unconstitutional.

    Again, with the simplicity of the American Framers:

    With the emphasis of the Founders on the power and freedom of the individual, over the “power” of the government,

    that government cannot take private property from one man to give that private property to another man, or any portion or right thereof, without making that private property public.

    “Fair Housing” amendments and subsequent law are unconstitutional and have no force.

    Were it not for the corruption of Stalin’s “those who count the vote decide everything” and Lincoln usurping Mao Tse-tung’s power “…out of the barrel of a gun,” there would be no “Fair Housing” law for the SCOTUS to consider. There would only be free Americans disposing of the their private property as they see fit.

    P.S. The American Founders fully expected free people to adapt to and live with the consequences of freedom. “All men are created equal.” After that, they are on their own.

  3. I support some measures to try and take some of the insane politics out of this. But, it is naïve @ best, to think you could eliminate politics from the process. And, since redistricting is a political issue, some politics needs to be part of the process. Maybe the best way is to designate the district can only have 4 sides, not the 20 sided monsters some districts look like.

  4. It’s not who votes that counts, it’s who counts the votes that counts.

  5. Rule 1. Do not let them split up a county unless the county has more population than a Congressional District. Then make them split it North/South or East/West.

  6. justagirl, Maybe they could hire a partisan software company to write the software, much like was done for the voting computers. And why should the participants be Democrats and Republicans. It seems to me that registered voters who don’t identify with a party would be a better choice. In NYS you pretty much have to be a Dem or a Rep to even work the polls.

    1. bettykath – the problem comes in a state like Arizona where there are more Independents than either Republicans or Democrats. Since each party is supposed to be given guaranteed districts, no one knows what to do with the Independents. Then there have to be guaranteed districts for Hispanics and Blacks, plus competitive districts. Then add that we got cheated out of at least 2 districts in the last Census, and you can add to all the fun.

      Right now no one is sure what district they might be running from in the fall since they could be redrawn and 2 added.

  7. In my opinion, it should be done by computers..

    This is what Districts should look like…


    the Democrats and the Republicans have messed it all up, they don’t care about representing
    their constituents, they just CREATE their constituents by drawing the most insane Re-Districting Maps.

    It is time to let the computers do this.

  8. Paul

    I realize that it is impossible to put together a group of however many people that would be completely unbiased. However, allowing elected representatives access to districting is tantamount to the fox guarding the hen house. The only thing a politician in the dominant party would be thinking is which hen to have for dinner on which night.

    The process should be performed as remote as possible from the effects. Perhaps there is a computer program that would organize the demographics in an entirely objective manner. In any event, surfacing the process and revealing the reasoning as much as possible should be the most important criterion.

    The voter is far too often ignorant of how the process of government works as well as the issues.

    1. issac – they use a couple of computer programs to start with. After that it all goes to hell. Get a district map for the state of Arizona. You will think the Mad Hatter was at work.

  9. This is one of those areas where an objective, computer like devise would be best suited to draw the districts. Regardless of what is in the constitution of Arizona or any constitution, neither political perspective should get anywhere near developing the districts. There are enough examples of states where districts have been redrawn to favor a minority over a majority. If a constitution fails to protect the desires of the majority then that constitution needs to be redrawn. There is no politician or political party that wouldn’t take advantage if given the opportunity.

    1. issac – that would be nice but the DoJ has to approve all districting maps as well.

  10. So, how exactly do you find an “independent” in our polarized world. All you’d really be doing is finding people with a strong bias who hide it better than the elected pols.

  11. A literalist would say that boundaries are not part of “time, manner, and place”

    There is another troubling case before the SCOTUS. Sould an election district mean equal human beings or equal eligible voters? Equal number of “persons” ? The founders in 1787 were very aware that Parliment had not been re-apportioned since 1707– “rotten boroughs” thus the mandate for every 10-year approtionment!

    1. Idaho Jim – you cannot believe what they fight over. The idea was great and the first implementation was excellent, the second one went south.

  12. There is trouble. There is trouble right here in River City and it is called the Arizona Independent Redistricting Commission. Trouble is the Commission is far from Independent.

  13. This is a very well written article about an issue which has difficult Constitutional issues. I am going to read the opinion very carefully when it comes out. I agree with the use of a non partisan commission and the manner in which this was created.

Comments are closed.