Redistricting is a process that occurs once every ten years, where census data is utilized to redraw the boundaries of each congressional district, so as to keep the representational power of each district relatively even. The underlying rationale for redistricting is to ensure that the "one man, one vote" ethos stays meaningful.

Yet a political party can redraw districts in a way that favors itself at the expense of the others. By packing voters from other parties in a small number of districts, a party can ensure that it runs virtually unopposed in the remaining districts and thereby wins subsequent elections with ease.

Needless to say, who controls the redistricting process and whether the resulting district maps will be approved by the state legislature leads to vicious political sandstorms.

In some states, the answer to an increasingly partisan redistricting process is an independent redistricting commission, ratified by a majority of voters as an amendment to the state constitution. These commissions perform the redistricting task instead of the state legislature, and are typically staffed by an equal number of Republicans and Democrats.

The commissions are considered independent because aside from helping appoint the members of the commissions, state legislatures have little to no input on how the commission draws district maps.

Yet independent redistricting commissions might not remain independent for much longer. Partisan attacks on the commissions and disputes over the legitimacy of their maps are inevitable, and in Arizona, the Republican-dominated state legislature resorted to scorched-earth warfare to prevent the new boundaries from taking effect.

After years of lawsuits, the Arizona State Legislature has taken the Arizona State Redistricting Commission to the final battleground: The Supreme Court of the United States, in the form of a lawsuit with potentially far reaching consequences.

What follows is a memorandum written for the Independent Voter Project which details the history of Arizona State Legislature v. Arizona State Redistricting Commission, its underlying legal foundation, a range of possible outcomes, and the case's ramifications on both the independent voter movement and the ongoing lawsuit in New Jersey.

Introduction

Recently added to the Supreme Court's docket, Arizona State Legislature v. Arizona Independent Redistricting Com'n could have dire ramifications on the ability of voters to directly influence the electoral process. This case is an attempt by the Republican-controlled Arizona Legislature to remove the voter-mandated, bipartisan redistricting commission.

The Arizona Legislature claims that the independent redistricting commission operates outside the lawmaking power vested in the legislature by the Elections Clause. Oral argument has not been scheduled yet: the redistricting commission's motion to dismiss has been denied and the commission has yet to file its appellate brief.

Background

Currently, Republicans control both arms of the Arizona Legislature. Of 30 Senate seats, Republicans have 17 while Democrats have 13. Of 60 House of Representative seats, Republicans have 36 while Democrats have 24. Arizona's governor is Republican Jan Brewer.

In 2000, Arizona voters approved Proposition 106, which amended the state constitution to delegate the task of drawing up districts away from the state legislature and to an independent redistricting commission. It consists of four members chosen by the legislature from a list compiled by a state agency, and a fifth member chosen from that same list by the other four members.

That fifth member is the commission's chairman. Two members are Republican, two are Democrats, and the fifth is independent.

In 2010, the commission approved a new district map 3 - 1, and the result slightly favored Democrats. One Republican member abstained, and the other voted against it.

In 2011, the Republican-dominated state legislature voted to remove commission chairwoman Colleen Mathis and held unsuccessful votes to remove the Democratic members of the commission. The Arizona Supreme Court ordered Mathis' commission restored and the new congressional district maps were finalized by the Department of Justice in 2012

The Arizona Legislature filed suit, claiming that the commission, by finishing said maps, took away the state legislature's Elections Clause power. The district court found in favor of the commission in February 2014, determining that the commission's actions were consistent with the Elections Clause.

Supreme Court precedent allowed redistricting power to be invested in bodies other than the state legislature, and the state legislature could be excluded from the redistricting process once it vested such power elsewhere within the lawmaking process of the state -- in this case, by ballot initiative. (Arizona State Legislature v. Arizona Independent Redistricting Com'n, 997 F. Supp. 2d 1047 at 1056 (2014).)

The Supreme Court then granted certiorari for the following issues: (1) Does the Elections Clause of the U.S. Constitution and 2 U.S.C. §2a(c) permit Arizona's use of a commission to adopt congressional districts, and (2) Does the Arizona Legislature have standing to bring this suit?

The Definition of "Legislature" Is Uncertain

The central issue in Arizona is whether the Supreme Court will agree with the district court's interpretation of the phrase "by the Legislature thereof" in the Elections Clause to include a voter-mandated commission that exercises the state's redistricting power independently of the legislative body.

Each state is given discretion by the Elections Clause to determine the "Times, Places, and Manner of holding Elections... by the Legislature thereof," which necessarily includes how voting districts are drawn up. (U.S. Const. §4, cl. 1; See Smiley v. Holm, 285 U.S. 355 at 364 (1932), McIntyre v. Fallahay, 766 F.2d 1078 at 1084 (7th Cir. 1985).)

At the very least, the Supreme Court has declared the legislature, as it relates to all tasks delegated by the Elections Clause, to refer to a state's legislative body and its processes. (

See Smiley, 285 U.S. at 366 (state legislatures may act as electoral, ratifying, and consenting bodies), Davis v. Hildebrant, 241 U.S. 565 at 568 (1916) (popular referendum considered part of the state legislative power).)

Both Circuit and state courts alike have been willing to apply the definition of "Legislature" from Smiley and Hildebrant expansively.

The 11th Circuit declared that the phrase "by the Legislature thereof" in the Clause "encompasses the entire lawmaking function of the state." (Brown v. Secretary of State of Florida, 668 F.3d 1271 at 1279 (2012).)

The Colorado Supreme Court declared that "a state's lawmaking process may include citizen referenda and initiatives, mandatory gubernatorial approval, and any other procedures defined by the state." (Salazar v. Davidson, 79 P.3d 1221 at 1232 (2003) (en banc).) Most importantly, Salazar included "special redistricting commissions" in its list of lawmaking processes, and used Arizona's Proposition 106 commission as its example. (Id. at 1232.)

In the case at hand, two of the judges on the three-judge district court panel held that lawmaking power, according to Arizona's constitution, included the power to enact laws by ballot initiative, which in turn made Arizona's independent redistricting commission legitimate under the Elections Clause. (Arizona State Legislature, 997 F. Supp. 2d at 1056.)

The dissent agreed that the state could vest its lawmaking power through ballot initiatives but emphasized that the legislature lacks "any outcome-defining effect on the redistricting process," given that the commission does not have to implement any changes suggested by the legislature. (Id. at 1057.) Such inability, the dissent argued," is repugnant to the Elections Clause's grant of legislative authority." (Id. at 1057.)

Unlikely to Directly Affect the New Jersey Case, But Could Endanger the Existence of Redistricting Commissions Throughout the Country

The outcome of Arizona's redistricting case would likely not have an effect on whether IVP's arguments in the New Jersey case are viable, but this depends on how strict the Supreme Court interprets the Elections Clause.

The likely scenario, if the Supreme Court were to rule in favor of the Arizona State Legislature, would be to require legislative bodies to allow some kind of involvement by the state legislature in its affairs, thus restricting the definition of a legislative process. This could result in the eventual reformation of the redistricting commissions with new strings attached, because the constitutional defect could be cured by allowing the state legislative bodies to be directly involved in the affairs of a commission handling duties enumerated in the Elections Clause.

The legitimacy of the method used to establish the independent commissions (popular referendum) would therefore not be at issue; the arguments advanced in the New Jersey case should be unaffected. Independent commissions could still be established through popular referendum, but with the above-mentioned limitation.

Generally, it would no longer be possible for voters to directly delegate redistricting power to a body wholly independent of the state legislature. Wholly independent bodies would be outside of the scope of the Elections Clause without some direct involvement by the state legislative body.

Without the ability to directly influence the redistricting process through popular initiative, voters will have no effective way to prevent incumbent politicians from carving up congressional districts in a manner that is directly favorable to their party and stifles competition.

California (Proposition 11 in 2008), New Jersey (Public Question 1 in 1995), Washington (SJR 103 in 1983), Montana (ballot initiative in 1972), Missouri (Measure 12 in 1982), and Alaska (Measure 3 in 1998) have also adopted redistricting commissions through popular referenda. These commissions would either have to disband or allow input directly from the state legislative body, so as to be considered part of their respective state's lawmaking apparatus within the meaning of Smiley, Davis, and Hildebrant.

If the court affirms the district court decision, there are two possibilities with starkly different implications.

In the ideal scenario, the court will affirm the district court decision on the same grounds, leaving in place the law of Hildebrant and its lower court progeny. In the less ideal scenario, the court will affirm after changing the underlying rule to require some form of direct participation in the affairs of the independent commissions, and then recognize that there is enough participation from the Arizona State Legislature, in so much as it helps choose commission members.

This second possibility is virtually identical to the most likely scenario indicated above if the court were to rule against the commission, as the underlying rule is slightly narrowed and the only variable is whether the redistricting commission's current setup satisfies the rule.

A doomsday scenario could play out if the Supreme Court rules that the exercise of legislative power through popular referenda is invalid. A doomsday scenario is unlikely, however. The distribution of legislative power in this case is decided by Arizona's State Constitution, and the Supreme Court does not need to decide the legality of Arizona's state constitution to decide this case.

Moreover, the Supreme Court would need to overrule Hildebrant, which explicitly held that popular referenda were valid exercises of state lawmaking power under the Elections Clause. If the Supreme Court were to overrule Hildebrant and narrow the scope of the Elections Clause by determining that any lawmaking power could only emanate directly from the state legislature, a ballot initiative started by collecting signatures from the constituency may no longer be a valid exercise of lawmaking power.

Under this line of reasoning, changes to a state constitution by ballot initiatives would be constitutionally suspect because they were initiated without any input by the proper lawmaking authority as contemplated by the Elections Clause. Without subsequent direct involvement from the state legislature, these measures would likely be deemed invalid.

The commissions in California and Arizona are therefore at serious risk. But commissions originating directly from the state legislature, or from measures placed on the ballot by members of the state legislature, will be unaffected by such a holding. This includes the commissions in Alaska, New Jersey, Washington, Hawaii, Idaho, Montana, and Missouri. But such a result is unnecessary to resolve the case and would destabilize nearly 100 years of case law, given that Hildebrant has been consistently utilized by both state and federal lower courts.

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