Critics say that allowing politicians to control political redistricting often means that representatives choose their constituents, instead of the other way around. But the Supreme Court questioned Monday whether citizens intent on eliminating partisan gerrymandering can completely cut state legislatures out of the equation.
Arizona voters tried that in 2000, when they turned over redistricting to an independent commission. But Republicans in the legislature were at the court Monday saying that such congressional redistricting schemes violate the Constitution.
The document’s Elections Clause states that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Washington lawyer Paul D. Clement, representing Arizona lawmakers, said that means what it says. Turning over reapportionment to a “completely unelected and completely unaccountable” commission is “plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states.”
On the other side, Washington lawyer Seth P. Waxman said “the legislature” really refers to the legislative process, and the people of Arizona have provided themselves the power to make laws, such as this one.
No one would have doubted at the time of the framing of the Constitution in Philadelphia, Waxman said, “that the sovereign states could choose to allocate their legislative power as they wanted.”
The questioning largely broke down along the court’s ideological fault lines, with liberals more supportive of the commission and conservatives sharply questioning Waxman. And unfortunately for him, the latter group included Justice Anthony M. Kennedy, who often holds the balance on the court.
Kennedy pointed out that it took ratification of the 17th Amendment in 1913 to provide for direct election of senators by voters, rather than having them elected by state legislatures. Many wanted direct election before then, Kennedy said, but no one ever disputed the power of the legislatures to make the choice.
“That history works very much against you,” Kennedy told Waxman.
An adverse decision from the Supreme Court could handicap what has been a small but growing resistance to entrusting elected officials with the political redistricting process that follows each census.
Thomas Mann and Norman Ornstein, political scientists and congressional scholars, in a brief supporting Arizona’s efforts, explained why voters were looking for alternatives.
“When the district-drawing process is controlled by elected officials, the result too often is a process dominated by self-interest and partisan manipulation,” they said. “The consequences are twofold: diminished electoral competition, which insulates representatives from their constituents; and an increasingly polarized Congress that takes cues from the most extreme and politically active partisans, with little incentive to compromise.”
Arizona voters in 2000 amended their constitution to give the job to a panel called the Arizona Independent Redistricting Commission. It is composed of five members drawn from a list of 25 compiled by a group that also selected judicial candidates. The highest-ranking officer and minority leader of each chamber of the legislature select a member, and those four select an independent chairman.
Legislative leaders may comment on the plans the commission draws up, but they cannot alter the maps, nor can the governor veto them.
California is the only other state that has diminished the legislature’s role similar to Arizona, but 11 other states have commissions that have some sort of say about reapportionment.
Justices Sonia Sotomayor and Elena Kagan were the most adamant that ruling against Arizona would threaten such experimentation.
“If a state constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn’t that the legislative process?” Sotomayor asked.
Kagan said there were “zillions” of laws regarding elections that were passed by voters without the involvement of the legislature, including requiring voter IDs, voting on machines or voting by mail.
“So would all these be unconstitutional as well?” she asked.
Clement said the difference is that none of those laws took power away from the legislature. He said the legislature could delegate some powers to a commission, and noted in answering a question from Justice Ruth Bader Ginsburg that only congressional redistricting — not drawing lines for the Arizona legislature — was at issue in the case.
Waxman drew fire from the conservative justices.
Justice Antonin Scalia flatly disputed Waxman’s premise that the use of the word legislature in the Constitution had a different definition than “the body . . . of representatives of the people that makes the laws.” He added: “I looked through them all. I can’t find a single one.”
Chief Justice John G. Roberts Jr. also questioned Waxman’s reasoning.
“Why doesn’t your interpretation make the words ‘by the legislature thereof’ entirely superfluous?” Roberts asked. “In other words, why didn’t they just say that the rules would be prescribed by each state?”
Waxman said the framers were showing a preference that the procedures be done by legislation, not who should do it.
The case is Arizona State Legislature v. Arizona Independent Redistricting Commission.