Justice

The Supreme Court’s About To Hear A Case That Could Make Partisan Gerrymandering Even Worse

CREDIT: Public Domain via Wikipedia

The original gerrymander

After a GOP-led attempt to impeach one of Arizona’s chief legislative map drawers failed — former Gov. Jan Brewer (R) complained that the state’s redistricting commission tried to “elevate ‘competitiveness’ over other goals” — the Republican-controlled legislature has turned to one of the GOP’s most powerful allies: the Supreme Court of the United States.

This fight between Arizona Republicans and the state’s redistricting commission is now before the Court in Arizona State Legislature v. Arizona Independent Redistricting Commission, a case the justices will hear on Monday. The GOP-controlled state legislature challenges a 2000 ballot initiative that empowers a redistricting commission — and not the state legislature itself — to draw Arizona’s congressional maps.

This lawsuit follows another attack on the commission by state lawmakers and Brewer. In 2011, Brewer called a special session of the legislature to impeach commission chair Collen Mathis. Although the state senate obliged in this attempt to remove Mathis from office, the state supreme court later reinstated her. Under Arizona law, the commission chair may only be removed for “substantial neglect of duty, gross misconduct in office or inability to discharge the duties of office.”

The commission drew maps that, at least in 2012, produced a congressional delegation that was slightly more favorable to Democrats than the state’s vote totals might be expected to produce. Although more than half of voters who cast a ballot in the state’s congressional races preferred a Republican to a Democrat, Democrats controlled 5 of the state’s 9 congressional seats after the 2012 elections. In 2014, Republicans picked up one seat, giving them a majority of the state’s House delegation.

The case before the Supreme Court focuses on 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 überlawyer Paul Clement, argues that “Legislature” means the state’s “representative lawmaking body.” So a ballot initiative that bypasses such a body and hands redistricting power to a commission is unconstitutional under this theory.

The commission, represented by Democratic überlawyer Seth Waxman, argues that the framers understood the word “Legislature” to refer to “the power that makes the laws.” Under this theory, legislative power can be held by the people of Arizona themselves, and can be exercised through a ballot initiative or similar practice.

This argument is supported by Supreme Court precedents. In the 1916 case of Ohio ex. rel. Davis v. Hildebrant, for example, the Court held that the state of Ohio could give voters an effective veto over the maps drawn by state lawmakers. Under that system, “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.”

Similarly, in 2012, a federal appeals court explained that the word “Legislature,” as it is used in the relevant section of the Constitution, “encompasses the entire lawmaking function of the state.”

If the justices ultimately side with Clement and the state lawmakers, it would open the door to very aggressive gerrymandering in Arizona. While Arizona’s current maps arguably offer a slight advantage to Democrats, partisan map-drawers have proved quite adept in producing maps that massively favor one party or the other. In 2012, for example, six states that sided with President Obama over Mitt Romney in the presidential elections nevertheless send lopsided Republican congressional delegations to Washington:

GOPHouseGerrymander

Two members of the Court’s Republican bloc, Justices Antonin Scalia and Clarence Thomas, once joined a concurring opinion that relied on a similar reading of the word “Legislature” to the one now asserted by Clement (that case, by the way, was Bush v. Gore). Whether three other justices will share this view is an open question, however. Significantly, the the Court has mandatory jurisdiction over this case — meaning that the justices did not have their normal ability to simply turn the case aside if they weren’t interested in it. So the fact that the Court took up this case does not provide much insight into whether a majority of the justices are eager to use it as a vehicle to make new law.