The Supreme Court Just Took A Case That Could Make Partisan Gerrymandering Even Worse

CREDIT: AP Photo/Manuel Balce Ceneta

The Supreme Court of the United States may be poised to give the Republican Party a big gift — more seats in Arizona’s delegation to the U.S. House of Representatives.

In 2012, Democratic House candidates received nearly 1.4 million more votes than Republicans. Yet Republican John Boehner, and not Democrat Nancy Pelosi, is Speaker of the House due to the way congressional districts are drawn in several states. Gerrymandering by Republican state lawmakers played a significant role in allowing Republicans to keep control of the House. Indeed, a Republican organization bragged after the 2012 election that gerrymandering “paved the way to Republicans retaining a U.S. House majority in 2012.”

Yet, despite the anti-democratic effects of gerrymandering and other quirks of America’s legislative redistricting process — Republicans currently enjoy a 233-199 seat advantage in the House — the 2012 House elections could have gone even worse for Democrats if it wasn’t for an Arizona redistricting commission which draws that state’s congressional maps with input from both political parties. Under the maps drawn by that commission, Democrats currently control 5 of Arizona’s 9 congressional seats.

Arizona Republicans are not fond of this commission, which was created by a ballot initiative in 2000. In 2011, Gov. Jan Brewer (R-AZ) called a special session of the GOP-controlled state legislature to impeach commission chair Collen Mathis. Though the state senate voted to remove Mathis from office, the Arizona Supreme Court reinstated her. Under Arizona law, the commission chair may be removed for “substantial neglect of duty, gross misconduct in office or inability to discharge the duties of office,” but the state supreme court concluded that Brewer had not demonstrated that Mathis was guilty of any of these things.

On Thursday, the U.S. Supreme Court announced that it would consider another round of litigation brought by Arizona’s GOP-controlled legislature. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the state legislature asks the Supreme Court to effectively return the power to draw maps to state lawmakers.

The premise of this lawsuit is that the Constitution 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,” and the Arizona lawmakers argue that the word “Legislature” can only mean the body of lawmakers who are elected by the people of Arizona to make laws — not an independent commission separate from the state house and state senate. The problem with this lawsuit, however, is that it runs headlong into Supreme Court precedents that a lower court relied upon in order to dismiss this lawsuit.

In the 1916 case Ohio ex. rel. Davis v. Hildebrant, the Supreme Court considered a decision by the voters of Ohio to essentially veto the congressional maps drawn by state lawmakers. Under Ohio’s Constitution, “the legislative power was expressly declared to be vested not only in the Senate and House of Representatives of the State, constituting the General Assembly, but in the people in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.” Thus, while the General Assembly had the power to make laws, including laws drawing legislative maps, the people of Ohio can overrule their elected representatives through a referendum.

In Hildebrant, the Supreme Court rejected the argument that the power to draw legislative lines must be vested exclusively in the state house and state senate. Indeed, the Court’s opinion suggests that the word “Legislature” can refer to the people of the state as a whole when the state’s constitution gives them the power to make or repeal laws through initiative or referendum. “[T]he referendum constituted a part of the state constitution and laws,” the Court explained, “and was contained within the legislative power.”

Sixteen years later, in a case called Smiley v. Holm, the Court explained that the word “Legislature” should not be read so hyper-literally as to prevent a governor from vetoing a state’s redistricting plan. An executive veto, the Court held, “is a matter of state polity” that the Constitution “neither requires nor excludes.”

More recently, in 2012, a federal appeals court explained that the word “Legislature,” as it is used in the Constitution, “encompasses the entire lawmaking function of the state.” So when Arizona gave its people the power to enact ballot initiatives, it gave them the power to enact ballot initiatives that create a redistricting commission.

Nevertheless, there are some warning signs that the Supreme Court’s right flank wants to upset this balance. In Bush v. Gore — yes, THAT Bush v. Gore — Justices Antonin Scalia and Clarence Thomas joined an opinion arguing that the Constitution prohibited Florida’s state courts from reaching certain interpretations of the state’s election law. This opinion relied on a constitutional provision providing that presidential electors must be selected “as the Legislature” of a state directs. Thus, it argued, the judicial branch of a state could not act in a way that these conservative justices viewed as counter to the legislature’s intent.

Should the justices apply a similar reasoning in the Arizona case, then the state’s redistricting commission is in trouble. It doesn’t take much imagination to figure out what will happen if that occurs. Republicans controlled the most recent redistricting process in six key states that President Obama won in 2012. This was the result of that GOP control:


Should the Supreme Court strike down Arizona’s redistricting commission, it is likely that Arizona’s congressional districts will soon look much like Ohio’s, Virginia’s and Pennsylvania’s.