Another Nail in Democracy’s Coffin?

With King v. Burwell threatening to disrupt millions of Obamacare insurance buyers, another case the Supreme Court heard just two days earlier was hardly noticed. The Court on March 2nd heard oral arguments as to whether or not state legislatures can overturn independent redistricting commissions (IRCs) created by public ballot.

In Arizona State Legislature v. Arizona Independent Redistricting Commission, that state's legislature has sued to invalidate the IRC voted into being by public referendum in 2000 and to take back the job for itself.

After each decennial census, changes in a state's population may add or subtract the number of representatives the state may send to Congress in Washington. That requires redrawing the electoral districts so that — in principle at least — each contains approximately the same number of voters. Even if the count is unchanged, population shifts may require redrawing, and in the absence of any reason the party controlling the legislature will eagerly take advantage of the opportunity anyway. Districts will be twisted into contorted shapes that place majorities of their voters in enough districts to guarantee victory in the next election, while packing as many voters of the opposing party into as few as districts as possible to minimize the number of representatives they can send to Washington. It's a very old practice dubbed "gerrymandering" that we've covered more than once, as in "Redrawing the Map to Rig Elections". It has resulted in hundreds of districts around the country that have been made very safe for the party in power and insurmountable by the opposition.

To eliminate the practice, a few states have created bi-partisan commissions to redraw districts more equitably so as to make them more competitive. This page has proposed that software can do the job completely agnostically.

Arguing for the legislature was the skilled Paul Clement, who argued against the Affordable Care Act's right to expand Medicaid in the states and the mandate that individuals must buy insurance, as well as on behalf of Hobby Lobby's claim that a corporation has religious rights. His brief relies principally on Article I Section 4 of the Constitution which reads, in part, that rules of elections:

"…shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations…"

Clement says that the public's taking away that prerogative from the state's legislature is unconstitutional. There was some arguing on the IRC side that the public, too, is a legislature when it votes by referendum, but it's doubtful that will get much traction. The three sections of Article I that precede Section 4 lay out precisely that "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives". No mention of a legislature of the people.

But nowhere in the Constitution is there text about the drawing of electoral districts and who should have the right to do so. Section 4 stated more fully says:

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;…"

This somehow includes drawing electoral districts, given the fashion of ascribing prescriptions to the vague Constitution that simply aren't there, and once having done so, pretending ever after that they are there by citing precedent cases of earlier imaginings that they are there. Thus, while not a word in that clause or elsewhere about electoral districts, nevertheless Arizona can bring a case declaring a constitutional right.

Therefore, if the Court rules in favor of the Arizona legislature, it will be yet another example of its writing new law and handing political parties the ability to subvert the democratic process.

Permissive redistricting is particularly egregious because, when the majority party is allowed to rejigger districts after a census, it stacks the deck for ten years, irrespective of whether the opposing party might win the majority in as little as two years into that decade.

The Court's deciding for the Arizona legislature could impact the nine states with redistricting commissions. In some cases the commissions are creatures of the state legislatures, which appoint its members and hand off the job to commissions. In others, there are hybrid formulations of who gets to pick commission members. California is the biggest state with an IRC, and is the most independent of the state legislature. The Supreme Court deciding that the Constitution gives the power of drawing the electoral map solely to state legislatures could reverse the slow progression toward impartiality.

The Supreme Court has already struck down the Voting Rights Act's provision that certain states, mostly southern, that have exhibited a history of discrimination need apply to the Justice Department for approval of changes they wish to make in their voting laws. In the current term the Court will also decide on a case heard toward the end of last year that was brought against Alabama for packing a district with black voters to bleach surrounding districts white. As with Arizona, if they decide for Alabama, it says that there is really no check on gerrymandering. And will the Court also be signaling that legislatures can do as they please with other laws, such as the spate that were passed before last year's elections that were intended by Republicans to block non-existent voter fraud and otherwise impede voting by Democratic blocs such as blacks, Latinos and college students? On several fronts the right to vote is under attack and what we pretend to be a democracy is in fact ridden with sham.

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