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A Full Loaf for Democracy

Voters secure a rare win in the Supreme Court.

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. 

(Photo: Think­stock)

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.