Will the Supreme Court Allow Legislators to Dilute Voting Power?

Arizona’s state legislature is unhappy about losing the ability to draw district lines, which has resulted in a major lawsuit. What will the Supreme Court say, and will its decision call into question a host of other electoral reforms?
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Arizona’s state legislature is unhappy about losing the ability to draw district lines, which has resulted in a major lawsuit. What will the Supreme Court say, and will its decision call into question a host of other electoral reforms?
The Arizona State Capitol Museum. This was the last home for Arizona's territorial government, until Arizona became a state in 1912. (Photo: Sue Stokes/Shutterstock)

The Arizona State Capitol Museum. This was the last home for Arizona's territorial government, until Arizona became a state in 1912. (Photo: Sue Stokes/Shutterstock)

An untold amount of political power rests in those who draw district boundaries. Lawmakers, too often, draw district lines to keep themselves in power, but not to empower the public. This is often referred to as “gerrymandering,” which essentially means that district lines are drawn to favor an incumbent or political party but not the people in that district. A bit of trivia: The word “gerrymander” was first used in 1812 in reaction to Massachusetts Governor Elbridge Gerry’s plan to re-draw state senate district lines. One of the districts purportedly looked like a salamander.

When lawmakers draw their own district lines they tend to be concerned with ensuring that their supporters land within their districts—but not with keeping communities of interest together. Groups of all stripes can find their votes severely diluted when this happens. Lawmakers may break ethnic, racial, or political groups up among a number of districts to ensure that those groups do not have the power to pick a representative of their choice. Gerrymandering can, for instance, mean that, in a state with 55 percent of voters registered as Democrats, 85 percent of legislators may be Democrats. This is not democracy at its finest.

So when lawmakers draw their own districts, voters may lose their power to elect candidates of their choice. But the fun doesn’t stop there. Voters may also lose out because those candidates who do win can hold more extreme views than their constituents. Moderates and swing voters are sidelined and end up being stuck with representatives who do not truly represent them. Indeed, gerrymandering is often seen as a leading cause of the gridlock that plagues Washington, D.C., and so many state capitols, county seats, and city halls throughout the country.

The substantive issue in the case essentially boils down to whether the word “legislature” can include the public when it exercises its power to enact laws via the initiative process and repeal laws via the referendum.

Recognizing that lawmakers should not pick their voters and, instead, that voters should pick their lawmakers, some states and localities have turned at least a portion of the task of drawing district lines over to independent commissions. California did just that in 2008 when, via the initiative process, it passed a ballot measure giving an independent re-districting commission the power to draw state legislative lines. Then, in 2010, California voters passed an initiative giving that commission the power to draw congressional district lines as well.

By most accounts California’s independent re-districting commission took its job seriously and drew lines that empowered voters, not politicians. Indeed, a number of congressional districts have now seen competitive races.

California followed Arizona’s lead when it used the initiative process to create an independent re-districting commission. Arizona voters created such a commission in 2000. While a dozen states have re-districting commissions, only California and Arizona completely bypassed the legislature and created those commissions via the initiative process.

Unsurprisingly, Arizona’s state legislature is unhappy about losing the ability to draw congressional district lines. And because this is America, that unhappiness has been translated into a lawsuit.

Arizona lawmakers claim that independent re-district commissions violate the elections clause of the Constitution, which provides that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The case wound its way up to the United States Supreme Court, which recently heard oral arguments, and will likely rule by late June.

The substantive issue in the case essentially boils down to whether the word “legislature” can include the public when it exercises its power to enact laws via the initiative process and repeal laws via the referendum. Put another way, does the term “legislature” just refer to the group of elected lawmakers who sit in state capitols, or can it also include the people when they act like lawmakers? If it is the former, the ability of Arizona and likely California’s independent re-districting commissions to draw congressional district lines is, as the kids say, “so over.”

The Court could dodge that issue by finding that Arizona’s legislature does not have standing to sue to declare the commission invalid. The practical consequence of a decision along those lines would be to allow voters to create independent re-districting commissions.

Basing predictions on oral arguments is only slightly more effective than reading tea leaves. But let’s not let that stop us. As always, all eyes are on Justice Anthony Kennedy, who will likely be the swing vote here. And so it is more than a little unfortunate that his questions seem to indicate his belief that “legislature” means elected lawmakers, not the voters when they are exercising legislative power.

Losing the ability to tell lawmakers not to draw their own district lines would be detrimental in and of itself. But as the infomercial hawkers are so fond of saying, “that’s not all.” If the Court does rule in favor of Arizona’s state legislature, it could call into question the ability of the people to implement a host of other electoral reforms, including, for instance, the open primary recently adopted in California.

By the end of June California voters will know whether our grand experiment with a citizens re-districting commission has come to an untimely end.

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