Cross-posted on Law 360
Days before its current term began, the U.S. Supreme Court surprised most observers by agreeing to hear a case that could drastically limit the ability of voters to determine who draws congressional boundaries — and potentially undermine a host of other long-standing election practices.
The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, arises out of a challenge to a ballot initiative, approved by wide margins by Arizona voters in 2000, which took redistricting power out of the hands of the Arizona legislature and vested it in a five-member citizen commission.
The commission drew congressional boundaries in 2001 without controversy and was widely seen as a model for reforms around the country. However, the commission’s second round of redistricting in 2011 proved to be anything but uncontroversial.
After the commission approved a map generally seen as favoring Democrats, Arizona Governor Jan Brewer and state senate Republicans controversially attempted to remove the commission’s chair. The Arizona Supreme Court blocked those efforts, but the Republican-led Arizona legislature then sued the commission in federal court, arguing that use of a commission to draw congressional maps violated the U.S. Constitution’s Elections Clause.
Most observers considered the challenge novel and unlikely to succeed.
At issue is language in Article I, sec. 4 of the Constitution which states that the “times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof” unless Congress provides otherwise. Most cases interpreting the clause to date have focused on the broad power granted Congress under the clause to override or change state election practices. Just last term, for instance, the Supreme Court ruled in another case also brought by Arizona that the clause gave Congress the power to enact the National Voter Registration Act.
The Arizona legislature argues, however, that the Elections Clause is more than just a grant of power to the federal government. Instead, the legislature contends that the clause also imposes limitations on how states can manage elections by mandating that all decisions about the “times, places, and manner” of federal elections are made by state legislatures. Under the legislature’s reading, the Arizona commission is unconstitutional because Congress had not expressly authorized use of redistricting commissions to draw maps.
Earlier this year, a panel of three federal judges rejected the challenge in a 2-1 decision, holding that use of the term “legislature” in the Elections Clause should be read to refer to the entirety of a state’s legislative process, including ballot initiatives passed by the voters. The court, in fact, regarded the issue as well settled. Its opinion noted that the Supreme Court had “at least twice rejected” Arizona’s position — first in a 1916 case upholding the right of Ohio voters to use a ballot question to repeal a redistricting map passed by its legislature and then in a 1932 case affirming the constitutionality of Minnesota’s practice of allowing its governor to veto redistricting bills.
The decision of the Supreme Court to revisit the issue has sent shockwaves through the election law community.
A growing number of states in recent years, including California, have given independent commissions the power to draw congressional boundaries. In fact, almost half of the states now use redistricting commissions in some form, including as a backup if the legislature is unable to pass a redistricting plan. Efforts to adopt similar sorts of reforms are currently underway in places like Ohio, Wisconsin and Illinois — with Arizona and California frequently serving as models for proposed reforms. Because lawmakers have a natural self-interest in keeping control of the redistricting process, reforms — where they have been successful — have almost always been driven by citizen initiatives. All of those reforms, and future reforms, could be thrown in doubt if the Arizona commission is invalidated.
The potential ramifications of a ruling in favor of the Arizona legislature go well beyond just redistricting commissions, moreover.
Florida (for now) has left redistricting power in the hands of elected officials. In 2010, however, its citizens used a ballot proposition to adopt constitutional amendments that put more explicit limits on what legislators can and cannot do in the redistricting process. Those amendments resulted in parts of Florida’s congressional map being invalidated by a state court earlier this year. California voters, likewise, used that state’s ballot initiative process to adopt an open primary system where the top two finishers regardless of party go to a runoff — a move regarded by many as an important step in combatting increased polarization. And many states, such as Arkansas, have long used their constitutions, rather than legislation, to do things like define who is an eligible voter.
Some of these provisions are relatively new, others are of ancient lineage. But, if the Arizona legislature succeeds, all of them could be open to potential challenge on the grounds that they were adopted by voters or constitutional conventions and not by state legislatures. At the very least, the court could find itself in the position of having to make judgment calls on the wide varieties of ways that states have developed over two centuries to adopt rules governing elections.
Fifty years ago, Justice Frankfurter cautioned courts about getting mired in the “political thicket” of redistricting. The Supreme Court could be about to take a big step further into that thicket.
(Photo: Think Stock)