First, they came for campaign finance. Now they're nibbling away at redistricting without corrupt, power-hungry politicians, and they're using the Supreme Court to do it.
It is not at all clear how the Supreme Court will decide Arizona State Legislature v. Arizona Independent Redistricting Commission, a lawsuit brought by the state’s GOP-controlled legislature which challenges an independent commission in Arizona that draws the state’s congressional maps. Though most of the justices appeared likely to vote along party lines, Republican Justice Anthony Kennedy and, at times, Democratic Justice Stephen Breyer asked questions indicating that their votes may be in play.
One thing that did emerge from Monday’s oral argument, however, is that if the Republicans behind this lawsuit prevail, they may come to regret that victory.
The case hinges upon the proper meaning of a provision of the Constitution which provides that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.” The state legislature, represented by Republican former Solicitor General Paul Clement, claims that the word “Legislature” refers exclusively to a state’s legislative body. The commission, represented by Democratic former Solicitor General Seth Waxman, claims that this word refers more broadly to “the power that makes the laws.”
Among other things, Waxman notes that the Arizona constitution provides that the “legislative authority of the state” vests both in the state’s representative bodies and also in the people themselves, who “reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls.” The commission being considered by the Court was enacted pursuant to just such a ballot initiative.
Unlike the challenge to California's Prop 8 case, which hinged on the equal protection amendment to the U.S. Constitution, this case really comes down to this question: Are voters considered "legislators" when they vote for a ballot initiative which puts the power to redistrict in the hands of an independent commission instead of their state legislators?
Speaking as a Californian who finally escaped a heavily gerrymandered district because of fair redistricting, I'd like to answer that question with a resounding yes. Right now it rests on what the court decides, and more specifically what Justice Kennedy decides, since he appears to be the swing vote.
There may be one silver lining in this otherwise dark and dismal cloud. If the court rules in favor of conservatives, it may also undo all of the Voter ID initiatives passed in states by ballot initiative. But overall, it would be terrible for our democracy.
