On June 29, 2015, the Supreme Court surprised many election law experts by siding—gasp—with Arizona voters. The case was Arizona State Legislature v. Arizona Independent Redistricting Commission with the majority opinion written by Justice Ruth Bader Ginsburg.
The issue was deceptively simple. What does the word “legislature” mean in a state that allows for ballot initiatives? Does legislature mean just those elected representatives who show up in Phoenix at the state capitol building or does it include the entire electorate when they vote on initiatives or state constitutional amendments?
The case arose because the electorate of Arizona was trying to battle the perennial problem of gerrymandering in redistricting. There are a few flavors of gerrymandering: (1) partisan, where one party tries to manipulate the map to give their party more legislative seats, (2) bipartisan, where both major political parties mutually carve up the legislative map, and (3) perhaps the most pernicious, racial gerrymandering, where the map drawer tries to empower or disempower a particular race through the redistricting process.
The cliché about gerrymandering is that every 10 years after the most recent census, politicians get to choose their voters instead of the other way around. In Arizona, the voters decided that they had had enough of this and they vested an independent commission with redistricting authority.
The elected state representatives and senators did not appreciate this self-protective move by the voters one bit, and they sued arguing that the U.S. Constitution vests the elected legislature in Phoenix with the sole power to set the time, places and manners of federal elections. Thus, the argument went, the independent Arizona redistricting commission was unconstitutionally drawing Congressional districts. The Supreme Court rejected this argument.
The majority in the case was made up of Justices Ginsburg, Kagan, Sotomayor, Breyer and Kennedy. They stated that “we hold that the Elections Clause [of the U.S. Constitution] permits the people of Arizona to provide for redistricting by independent commission.” And further that, “the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.”
This is a big win for direct democracy and for voters in general. It is a refreshing change for the Roberts Court. As I wrote in a piece entitled “Electoral Silver Linings after Shelby, Citizens United, and Bennett,” the Roberts Court has been doling out a lot of dark clouds for democracy, while leaving mere silver linings for reform advocates. In case after case, the court has placed a thumb on the scale in favor of corporations and large donors without much thought about how this will impact voters. But in Arizona State Legislature v. Arizona Independent Redistricting Commission the Court placed voters front and center.
As the Court ruled, Arizona’s independent redistricting commission “impede[s] legislators from choosing their voters instead of facilitating the voters’ choice of their representatives.”
The Court also considered the broader implications of ruling against the Arizona voters in this case. As Justice Ginsburg cautioned, such a contrary ruling would have impacted state initiatives and referenda in states besides Arizona:
Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage. It would also cast doubt on numerous other election laws adopted by the initiative method of legislating.
And consequently, this ruling broadly embraces not only the specific voters’ choice in Arizona, but also it supports the initiative and referendum process in other states as well.
This is case is a great improvement from one of the last times Arizona’s election laws were on the chopping block at the high Court. In Bennett, in 2011, the Supreme Court cut out the heart of Arizona’s public financing system—a system which was also enacted by Arizona voters in an attempt to clean up politics that had been rocked by the AZscam scandal.
One difference between Bennett and this case is Justice Anthony Kennedy flipped between the conservative wing and the liberal wing of the Court. Unfortunately, Justice Kennedy didn’t write separately in either case to clarify why he joined each majority.
This new case was also a win for democracy because what the voters were trying to fix in Arizona was Congressional gerrymandering—a process that at its worst thwarts the will of the people to elect candidates of their choice by either packing or cracking (and sometimes both in the same map) groups of like-minded voters.
As the Court concluded in upholding the independent redistricting commission by quoting James Madison, “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have ‘an habitual recollection of their dependence on the people.’” The Roberts Court has been handing out half a loaf in too many election law cases. This was finally a full loaf for the democratic process.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.