At issue in the case is the constitutionality of independent redistricting commissions. The outcome of the case, however, could have broad implications that extend well beyond Arizona’s borders, and could decide the fate of not only independent redistricting commissions, but the entire ballot initiative process.
The LWV was founded in 1920 “as an outgrowth of the struggle to win voting rights for women.” Their current mission is to promote a government that is “representative, accountable, and responsive and that ensures opportunities for citizen participation in government decision-making.”
Historical Context of Independent Redistricting Commissions
Gerrymandering has been with us since the creation of the republic. Founding Father Elbridge Gerry (1744-1814) had his name immortalized by his efforts as governor of Massachusetts to fix public elections by redrawing election maps.Wesberry v. Sanders and Reynolds v. Sims, inadvertently set into motion the guise of modern gerrymandering.
Wesberry v. Sanders established the principle of “one person, one vote.” This seemingly innocuous principle set into motion an almost constant review of voting districts, under supposed auspices of ensuring the court’s ruling. In practice, it became an excuse for the majority party to constantly fiddle with voting districts in an effort to create favorable election outcomes.
In Reynolds v. Sims, the Supreme Court asserted that the goal of electoral redistricting is to ensure “fair and effective representation for all citizens.” Unfortunately, during the next 40 years, “fair and effective” became the code word for “maximizing partisan advantage.”
The court’s acknowledgement of the imprecision of the process became the focal point of manipulating the system to the major parties’ advantage:
The federal constitutional requirement that both houses of a state legislature must be apportioned on a population basis means that, as nearly as practicable, districts be of equal population, though mechanical exactness is not required. (Reynolds v. Sims, emphasis added)
While this ruling was primarily targeted at state election maps, it carried over into federal districts. This is not without irony, since one look at electoral maps shows the inordinate amount of mechanical exactness that has been expended to create modern congressional districts.
These two rulings gave rise to a system of equipopulous gerrymandering — “an apportionment plan that complies with one person, one vote but carves lines with surgical precision to create districts designed to elect or defeat candidates from particular parties or constituencies.”
In Vieth v. Jubelirer (2004), the court ruled that this extreme partisan gerrymandering was unconstitutional and harmful to the political process.
As a reaction, many states (21 so far) have established independent redistricting commissions that are nonpartisan or bipartisan in an effort to eliminate both the occurrence and appearance of gerrymandering.
Specific to Arizona, the ballot initiative created an independent body of commissioners, who go through the following selection process:
The commission on appellate court appointees creates a pool of 25 nominees, ten from each of the two largest parties and five not from either of the two largest parties. The highest ranking officer of the house appoints one from the pool, then the minority leader of the house appoints one, then the highest ranking officer of the senate appoints one, then the minority leader of the senate appoints one. These four appoint a fifth from the pool, not a member of any party already represented on the commission, as chair. If the four deadlock, the commission on appellate court appointments appoints the chair.
The commission on appellate court appointees is an existing body that functions to “screen, interview and recommend judicial candidates to the Governor of Arizona for the Governor’s final selection to fill judicial vacancies,” making it the ideal body to select the pool of commissioners.
At the very heart of this issue is Article I, Section 4, Clause 1 of the United States Constitution:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
Even during the Constitutional Convention, this clause drew a somewhat excessive amount of controversy. Some believed elections should be the sole power of the states, while others believed it should be the sole power of the Congress — with both sides presenting scenarios that could legitimately happen, thereby disrupting the election system.
A strict, literal interpretation would indicate that only state legislatures and Congress have power to make election regulations, which is what the Arizona Legislature has consistently argued.
The courts, however, have broadly interpreted the statement, “the Legislature thereof,” to include the entire lawmaking body of the state, including executive and independent departments with policy and/or lawmaking ability (see Brown v. Secretary of State of Florida). The appellees in the case argue that this extends to the ballot initiative process, where the people vote on proposed laws and reforms.
The Amicus Brief
The brief, submitted cooperatively by 5 organizations, is in favor of the Arizona Independent Redistricting Commission and focuses on two primary points.
First, state legislatures have repeatedly shown an inability to restrain from the temptation of gerrymandering. This gerrymandering is unconstitutional, thwarts majority rule, makes elections less competitive, and heightens political polarization.
Second, and more importantly, gerrymandering can be lessened or eliminated without having to resort to judicial recourse. Rather than bogging down the court system, independent redistricting commissions can create congressional districts more fairly and impartially.
The brief argues that by using a ballot initiative to create the independent redistricting commission:
Ordinary citizens have a key role to play in addressing the serious challenge partisan gerrymandering poses to our democratic processes.
…the exercise of direct democracy reflected in the creation of Arizona’s independent commission is an important contribution to a “national dialogue,” Schuette, 134 S. Ct. at 1630-31, between the people of the various states, operating as laboratories of democracy, regarding how best to structure the redistricting process and end partisan gerrymandering.
How Strong is the Voice of the People?
The concept of a ballot initiative is a relatively recent invention in American politics. The modern system of ballot initiatives and referendums started in 1898 in South Dakota. Oregon followed suit in 1902, creating a system that was widely copied by other state governments and became one of the hallmark issues of the Progressive Movement.27 states and the District of Columbia have a process for ballot initiatives or referendums, with many more municipalities and local governments embracing this form of direct democracy.
The crux of this lawsuit is the right of the people to have a direct say in the government process, including the creation of new governing bodies.
While direct democracy was never envisioned by most of the Founding Fathers, voter initiatives and referendums give the people the opportunity to address issues that the state legislative bodies have ignored or fail to address effectively.
The League of Women Voters is not wrong about state legislatures. These legislative bodies have become so polarized that the will of the people is often ignored and because of partisan gerrymandering, many people are not given adequate representation. Voters deserve better representation — they deserve to be heard.