Debate over states' rights and the rights of the people goes as far back as the 18th century. Today, that political discussion is alive and well in the form of a struggle over gerrymandering. This term, the Supreme Court will hear Arizona State Legislature v. Arizona Independent Redistricting Commission, an appeal brought to the court by the Arizona State Legislature to challenge their loss of redistricting power to an independent redistricting commission (IRC).

When Alexander Hamilton wrote Federalist No. 59 he argued giving the state legislature the sole authority to regulate elections would jeopardize the union and give the legislatures a monopoly on power. Now, in the 21st century, the state legislature is attempting to consolidate its power as a political body, separate from “we the people.”

Robert Fellmeth, a professor of Law at the University of San Diego, says independent redistricting commissions play a vital role in absolving legislators of an inherent conflict of interest in drawing district boundaries to the benefit of their party. He said:

"This districting power is a perfect example of why that alternative power is necessary, for the legislators have gross conflicts of interest." - Robert Fellmeth

In its motion to dismiss the appeal brought before the Supreme Court, the IRC writes, "Since statehood, the Arizona Constitution has reserved for the 'people' the power to 'propose laws and amendments to the constitution' by initiative and referendum." The IRC calls into question the legitimacy of the Legislature’s standing, claiming the legislative body is not acting on behalf of the people, but on behalf of its own self-interests.

Arizona State Legislature v. Arizona Independent Redistricting Commission rests on hearing arguments over the interpretation of the word "legislature." At stake is the constitutionality of this change and the very idea of who holds power over elections in the state: the people or the state's legislative branch?

When Arizonans passed Proposition 106, a constitutional amendment, in 2000, voters approved the creation of the IRC to redraw the state’s congressional and legislative district lines. Proponents argued that an independent commission would help reduce the prevalence of partisan gerrymandering.

The commission is made up of five members: 2 Democrats and 2 Republicans chosen by the leadership of the Arizona State Legislature. The fifth member is chosen by the other four members of the commission and is made chair.

The responsibility of redistricting has traditionally belonged to a political monopoly in state legislatures. Only 7 states have independent redistricting commissions for redrawing both congressional and legislative district lines, likely a result of the Election Clause of the U.S. Constitution, Article 1, Section 4, Clause 1, 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...” - U.S. Constitution

challenging the constitutionality of stripping the body of any meaningful participation in redrawing district lines. The legislative body argues that by divesting it of its redistricting power, the voter-approved amendment violates the Election Clause of the U.S. Constitution.

In February 2014, the district court ruled 2-1 that the creation of the IRC does not violate the U.S. Constitution. Its decision rests on the interpretation of the word "legislature."

The court interpreted the word "legislature" to mean the same thing as "legislative process." By that reasoning, the vote by the people constituted the legislative process, meaning the creation of the IRC did not violate the U.S. Constitution.

However, the Arizona State Legislature brought an appeal to the Supreme Court, who has decided to add the case to its docket this term -- although the court has not yet set a date for hearing arguments.

In the Legislature's statement to the high court, it makes it clear it is only challenging its removal from congressional redistricting. The Legislature criticizes the lower court's interpretation of the word "legislature":

 “This logic is irreconcilable with the Elections Clause and this Court’s precedents because it abandons the specific meaning of “Legislature” and replaces it with “legislative process."

The IRC defends the constitutionality of taking redistricting out of the hands of the Legislature:

"Many people believed this practice resulted in boundaries that served the politicians instead of the people of Arizona."

The IRC cites previous court decisions (Smiley v. Holm and Ohio ex rel. Davis v. Hildebrant) that dealt with the interpretation of the power of the legislature in administering congressional elections. The commission posits that the high court has already affirmed "legislature" to mean the legislative body of a state, including the people and the laws they pass consistent with the state Constitution -- not just the official body of the State Legislature.

At the heart of the IRC's argument is its interpretation that the commission is an element of the state's legislative process, therefore its redistricting powers are a consequence of the state's legislative power.

The Supreme Court's decision will have an impact beyond Arizona's redistricting powers. The fact that the court is only hearing arguments on whether Arizona's adoption of an independent commission violates the Election Clause hints that they may finally specifically address the constitutionality of independent redistricting commissions.

According to the Brennan Center for Justice at NYU Law, a strict interpretation of the word "legislature" will call into question not only independent redistricting commissions, but the entire referendum and ballot initiative process by consolidating election power strictly into the hands of state legislatures. If the Supreme Court rules that the Arizona State Legislature does not have standing, the decisions of the lower courts will continue to stand, which favor the constitutionality of independent redistricting commissions.

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