If you’re angry about the polarization of American politics, then a case heard by the Supreme Court on Monday matters to you. Because if the justices decide to declare independent redistricting commissions unconstitutional, things are going to get much worse.
Here’s the deal: In Arizona State Legislature v. Arizona Independent Redistricting Commission, the state legislature is challenging a redistricting plan devised by an independent commission created by a ballot initiative and passed by Arizona voters in 2000 with 56 percent of the vote.
Essentially, the Republican-controlled legislature is suing the state’s voters for taking away its right to draw congressional districts in the rigged system known as redistricting.
Arguments centered on the meaning of the word “legislature” as used in the Elections Clause in Article I of the U.S. Constitution: “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the Legislature thereof.”
The question to be determined by the Supreme Court: Does that language limit the power for drawing congressional districts to state legislatures, or can the voters act directly to devise another way of doing it?
As Justice Elena Kagan pointed out in her questioning, “there are zillions” of state laws governing elections including voter ID, absentee balloting, and vote-by-mail that have been adopted through the initiative process and not by state legislatures.
So would a ruling against the Arizona redistricting commission invalidate those, as well? If voters can approve laws and govern themselves directly through ballot initiatives, why can’t they also set up a mechanism for drawing legislative districts?
The more liberal justices on the court, including Sonia Sotomayor and Stephen Breyer, seemed to indicate through their questioning that they believe voters when they pass initiatives are part of the legislative process. “We need to show a lot of respect for the way the states are deciding to legislate,” said Kagan.
More than half of the states in the country now have some form of ballot initiative or referendum process, though only a few so far have set up independent commissions to handle redistricting, the most notable being California.
This is the antidote to the partisan redistricting handled mostly by state legislatures that has resulted in the vast majority of congressional districts being safe seats controlled by Democrats or Republicans. In 2014, which had the lowest voter turnout since 1942, candidates in 69 House races ran uncontested in the general election by a major party challenger, and many more where incumbents faced only token opposition.
Electoral reform proponents think redistricting reform is one of the most achievable fixes to this problem.
“This is one of the few things we can actually do something about,” said Norman Ornstein, a resident scholar at the American Enterprise Institute and political reform advocate who filed an amicus brief in the case along with Thomas Mann of the Brookings Institution, his co-author of several books on Congress.
A Supreme Court ruling against the citizens redistricting commission, Ornstein said, would be “a devastating blow to the ability of voters to do anything meaningful to alter a horrible dynamic.”
Ornstein’s brief (PDF) argues: “When the district-drawing process is controlled by elected officials, the result too often is a process dominated by self-interest and partisan manipulation. The consequences are twofold: diminished electoral competition, which insulates Representatives from their constituents; and an increasingly polarized Congress.”
Mann and Ornstein’s amicus brief is one of more than a dozen filed in support of the Arizona Redistricting Commission, including those from the U.S. Department of Justice (PDF); the League of Women Voters, Common Cause, and the American Civil Liberties Union (PDF); the Brennan Center for Justice at New York University; former Republican California governors Arnold Schwarzenegger, Pete Wilson, George Deukmejian, and other California leaders who supported that state’s independent redistricting commission (PDF); and the states of Washington, California, Colorado, Connecticut, Hawaii, Idaho, Massachusetts, Mississippi, New Mexico, New York, Oregon, Pennsylvania, and Virginia (PDF).
Twenty members of Congress—11 Democrats and nine Republicans—also have weighed in (PDF) with their support on behalf of the independent redistricting commission.
It may seem odd for members of Congress to be arguing for more competitive elections, but Rep. Reid Ribble, a Wisconsin Republican who signed the amicus brief, says gerrymandered districts drawn up in backroom deals by politicians are not only wrong, they are undemocratic.
“This is one of the places where politicians like to go into the darkness of the closet and not let the public see what they are doing,” said Ribble.
Wisconsin’s 8th congressional district, which Ribble represents, is home to the Green Bay Packers and one of the few competitive swing districts left in the country. George W. Bush carried it in 2004, Barack Obama won it in 2008, and Mitt Romney got the most votes there in 2012.
Ribble has to appeal not only to Republicans but also to Democratic and independent voters to get elected, affecting the way he approaches being a member of Congress.
And that’s exactly the point, say proponents of redistricting reform who believe drawing more competitive districts will lead to electing members of Congress more interested in compromise and less driven only by party loyalty.
In creating their independent redistricting commission, Arizona voters clearly signaled they wanted to take the power for drawing congressional districts away from politicians, although the process is not completely apolitical.
The Arizona commission has five members. Two are chosen by Republican leaders in the state legislature, two by Democrats, and the chairman of the commission, who must be an independent not registered with either major political party, is chosen by the other four. Members of the legislature and any other holder or candidate for public office are prohibited from serving on the commission.
And that, along with the fact that they believe the districts the commission drew favored Democrats, is what Arizona Republicans oppose.
“When the legislature is so arrogant that being able to appoint four out of five members of a redistricting commission is not enough, it flies in the face of what most Americans would say is a true democracy,” said Kathay Feng, executive director of California Common Cause and the organization’s national redistricting director. Feng has been working on election reform and redistricting issues for many years and was involved in California’s redistricting commission initiative, which passed in 2010 with more than 60 percent of the vote.
The California Independent Redistricting Commission resulted in more competitive districts, and 14 House incumbents either lost their seats or decided not to run for reelection.
As the proponents of Arizona’s redistricting commission argue, a ruling against the commission could invalidate numerous state laws and would stymie election reform and “bring those reform efforts to an abrupt end, perhaps forever.”
Gerald Hebert, executive director of the Campaign Legal Center, which joined the brief filed by Common Cause and the League of Women Voters, appears pessimistic about the outcome of the case. “The court seems hell-bent on overturning as many elements of our democracy as possible,” he said. “‘We the People’ gets no respect from the court.”
Many of those in attendance at Monday’s hearing said they believe there’s a good chance this case will be another 5-4 decision with Justice Anthony Kennedy providing the swing vote, as he did in the Citizens United case.
It is possible the court could rule against the voters of Arizona and by extension the voters of California, and any state that wants to handle the redistricting process a different way or pass election law through the ballot initiative process?
Should five men be able to tell every voter in the nation their vote doesn’t really matter?
Most Americans already believe too much power is concentrated in too few people in this country, and our democracy is suffering as a result.
Such a decision would have disastrous ramifications for election law and intensify the feeling on the part of many Americans that politics is a rigged game controlled by elites, and nothing can be done to reform the system. These are the stakes, and the Supreme Court now has the future of election reform—and the integrity of our representative democracy—in its tenuous grasp.