Court to hear dispute over redistricting power: In Plain English

Arizona voters were fed up. After each census, states have to draw new boundaries to elect members of the House of Representatives in Washington. Until 2000, the state legislature took on this job, as it does in many other states. But voters werent happy with the results: in Arizona, as elsewhere, it was common for the political party that controlled the state legislature to use its power to its advantage in redistricting, by drawing districts to maximize the opportunities for its members to win election and to ensure that, once in office, those seats were safe. So in 2000, Arizona voters passed an amendment to the state constitution that would turn control of redistricting over to an independent commission. Three years ago, though, the state legislature filed a lawsuit in federal court, challenging the voters transfer of redistricting power to the commission. Lets talk about todays argument in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English.

The Elections Clause of the U.S. Constitution provides that the Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof. In Arizona, the legislature and members of the public can make recommendations to the redistricting commission, but the commission doesnt have to do anything more than consider those recommendations. The heart of the lawsuit now before the Court, then, is the Arizona legislatures complaint that, by depriving it of any substantive role in the redistricting process, the states creation of the independent commission violates the Constitution.

Before the Court can consider that argument, though, it has to answer a threshold question: whether the Arizona legislature has a right to sue at all a legal concept known as standing. To have such a right, the legislature has to have been injured somehow by the commissions control over redistricting. The legislature maintains that, because the voter initiative that created the commission takes the power to regulate congressional elections away from the legislature and gives it to the commission, the legislature has therefore suffered the kind of injury that allows it to sue. The commission and its supporters counter that because the legislature is part of Arizona itself, it cant argue with how the state has opted to divide power up among its different institutions. They also emphasize that the legislature hasnt actually been injured yet: it could create its own, competing redistricting plan, which Arizonas secretary of state could implement, and so it cant contend that it has been cut out of the process. (The legislature responds that it hasnt tried to offer its own plan because it isnt allowed to come up with one.)

If the Court agrees that the legislature has a right to sue, the Justices will then move on to consider the substance of the legislatures challenge: what does the Constitutions reference in the Elections Clause to the Legislature mean? The legislature argues that the word Legislature means exactly what it says, and therefore refers only to the official lawmaking body itself. The commission, on the other hand, interprets the term as extending to the wider power to make laws, including the peoples power to make laws which is exactly what the voters of Arizona were doing when they passed the initiative.

But even if the Founding Fathers meant for the word Legislature in the Elections Clause to refer to just to the institution, rather than the power to make laws, the commission has a fallback argument: Congress which under a separate provision of the Elections Clause has the authority to make or alter the rules enacted by a states legislature enacted a law that authorizes redistricting based on the use of the power to make laws generally, rather than limiting it to the Legislature. But the Arizona legislature characterizes the law as something that Congress passed to ensure that, if a states redistricting process is deadlocked, the state can still hold elections and send representatives to Washington.

Only one other state uses a commission similar to Arizonas for redistricting. But its a big one California and the commission there has been widely regarded as successful in increasing competition in elections and reducing partisanship. More generally, supporters of the commission warn the Court that, if voters arent allowed to hand responsibility for redistricting over to independent commissions like the ones in Arizona and California, there will be no real way to combat political gerrymandering, which results in partisanship and dysfunction in Congress. And a ruling for the legislature, they caution, could also spell doom for other voter initiatives in other states dealing, for example, with voter identification laws or changes to the primary process.