Why Republicans May Come To Regret The Gerrymandering Lawsuit They Took To The Supreme Court


WASHINGTON, DC — 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.


Past Supreme Court decisions permitted voters to veto congressional maps drawn by the state legislature, and they also permitted state governors to veto legislatively drawn maps. So, the legislature does not have exclusive say in what a state’s congressional maps shall be under longstanding precedent. Clement, however, argued that Arizona’s ballot initiative is different because it “cut the state legislature out entirely.” This, he claims, is not allowed.

During Clement’s time at the podium, many of the justices puzzled over just how much a state’s representative body must be involved in setting the state’s election rules in order to comply with Clement’s reading of the Constitution. Justice Elena Kagan wondered what happens if a state has a commission with the power to veto legislatively drawn maps. Justice Kennedy asked whether it mattered if the legislature itself proposed the initiative that created the commission. Justice Sonia Sotomayor seemed to throw her hands up altogether at these hypotheticals. Isn’t it “just simple” to say ‘Legislature’ means legislative power,” Sotomayor asked, because this formulation would keep the Court from having to muddle through difficult cases?

The most interesting question, however, came from Kennedy: what about voter ID ballot initiatives and other voter-enacted laws which bypassed the legislature entirely to change a state’s election law? If the Constitution reserves the power to set the “times, places and manner of holding elections for Senators and Representatives” to elected lawmakers, then initiatives such as Mississippi’s voter ID amendment are unconstitutional.

Justice Kagan leaped on this question almost as soon as Kennedy asked it, noting that there are numerous examples of state election laws enacted by voter initiative. “In none of those laws,” she noted, “is there legislative control.”

By the time Clement sat down, it appeared likely that Kennedy would join the Court’s liberal bloc in upholding the commission. His vote grew much less certain, however, shortly after Waxman stepped up to defend the commission.


Justice Antonin Scalia, at times joined by Justice Samuel Alito, quickly pounced on Waxman, asking him to identify another instance in the Constitution where the word “Legislature” did not refer to a representative body. The answer, according to Waxman, is unclear because the Court has not addressed the question in every place where the word appears.

The strongest point in Scalia’s favor, however, came from Kennedy, who pointed out that, prior to the Seventeenth Amendment, the Constitution provided that “[t]he Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof.” Though many states wished to have popular election of senators, according to Kennedy, they were unable to do so until the Seventeenth Amendment was ratified. This history, Kennedy noted, cuts against Waxman’s argument.

In the end, however, Kennedy gave little indication of whether he found this Seventeenth Amendment argument more persuasive or whether he was more convinced by his previously expressed concerns about election laws enacted through direct democracy. And if Kennedy’s vote is unsure, the outcome in the case is also unsure.

Justice Stephen Breyer also may have given Waxman a bit of a scare when he disagreed with the lawyer’s claim that past cases dealing with popular and gubernatorial vetoes support Waxman’s argument. Yet, when Clement retook the podium and tried to capitalize on Breyer’s remarks, the justice responded that those cases help Clement even less. Breyer’s vote, in other words, may also be in play. It is possible that Clement could win his case with as many as six votes, or Waxman could win with five.

Should Clement prevail, however, it could be a Pyrrhic victory for the Republican Party. They may win the right to gerrymander Arizona’s congressional districts, only to lose voter ID laws and similar efforts at voter suppression enacted via initiative.