On Monday, March 2, the U.S. Supreme Court heard oral argument in the case, Arizona State Legislature v. Arizona Independent Redistricting Commission. The high court will consider the constitutionality of independent redistricting commissions, something that could also affect the ballot initiative process in several states.

The main issue before the Supreme Court is whether the justices will agree with a lower court’s interpretation of the phrase “by the Legislature thereof” in the Election Clause of the United States Constitution to include the voters’ ability to bestow electoral redistricting power to a government body that operates independently of a state's legislature.

According to SCOTUSblog.com, the majority of the justices “shied away from the idea that the voters of a state could seize power away from their legislature, and lodge that authority elsewhere in government more pleasing to the people.”

“While some members of the Court suggested that the reference to “legislature” might actually mean only “the legislative process,” referring to the capacity to pass laws by whomever a state assigned the task, that was not where most of the Justices’ inclinations seemed to point. And while some Justices enticed into conceding that a state’s people may act to vary the lawmaking process somewhat, he steadfastly refused to accept that the legislature could be forced entirely to the sideline on the redistricting question.” - Lyle Denniston, SCOTUSblog.com

Members of the majority party in the Arizona Legislature (Republican Party) argue that the Election Clause should be interpreted literally to mean the legislative body of the state only. They believe power over elections should reside with them, not with voters.

In 2000, Arizona voters approved Proposition 106, which amended the state’s constitution to delegate the responsibility of redrawing electoral districts away from the Legislature and to an independent redistricting commission. The commission consists of four members chosen by the Legislature from a list produced by a state agency, and a fifth member, the commission’s chair, who is chosen by the other four members from the same list.

The Republican-controlled Legislature took exception to new electoral maps drawn in 2010, which many people believe favored the Democratic Party. The maps were approved by the Independent Redistricting Commission in a 3-1 vote. One Republican abstained from voting while the other voted against them.

Republican leaders in the Legislature successfully pushed through a vote to remove the commission’s chair, Colleen Mathis, but were unsuccessful in their attempts to remove the Democratic members. The removal of Mathis didn’t hold up in court, however, and the Arizona Supreme Court restored her commission and the U.S. Department of Justice approved the new maps in 2012.

 

 

“[T]here were no hearty embraces of the kind of “direct democracy” that can lead a state’s voters to pass laws on their own authority, mostly or entirely independently of their legislature,” Denniston writes. “A Washington lawyer, Seth P. Waxman, who tried to counter the legislature’s arguments by seeking to keep the focus on the sovereignty of the people, had no one on the bench cheering him on.”

“The argument took the Court deeply into the wording of the Constitution, and the thoughts of the Founding generation more than two centuries ago, but the hearing always returned to the meaning of that single word ‘legislature.’” - Lyle Denniston, SCOTUSblog.com

The decision by the Supreme Court justices could affect not only the fate of the Arizona Independent Redistricting Commission, but independent and hybrid redistricting processes in 21 other states, including California.

According to a previous report on IVN, six states are currently considering these options for redistricting reform: North Carolina, Illinois, Georgia, Maryland, Indiana, and Kentucky. The legislation in these states could also be affected.

The most extreme decision that the justices could hand down could invalidate the entire ballot initiative process in several states, eliminating the use of direct democracy to implement new laws altogether. However, this “doomsday” outcome is considered unlikely.

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