By Cara L. Gallagher
Arizona’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.
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