I have now had a chance to review the transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission and the news is not good. It appears that the conservative Justices may be ready to hold that citizen redistricting commissions which have no role for state legislatures in drawing congressional districts are unconstitutional. What’s worse, such a ruling would endanger other election laws passed by voter initiative trying to regulate congressional elections, such as open primaries. For those who don’t like campaign finance laws because they could protect incumbents, this is a ruling that could make incumbency protection all the worse, removing the crucial legislative bypass which is the initiative process (for congressional elections).
The question in the case arises from the Constitution’s Elections Clause, giving each state “legislature” the power to set the rules for Congressional elections if Congress does not act. The key question is whether the people, acting through a state’s initiative process as lawmakers, are acting as the legislature for purpose of this clause. If not, redistricting done without the involvement of the legislature would be unconstitutional. (Before the Court agreed to take the case, it seemed settled that Legislature could include the initiative process of a state.)
From my read of the transcript, Chief Justice Roberts, Justice Scalia, Justice Alito, and Justice Kennedy all seemed skeptical that the word “legislature” used in the Elections Clause could refer to an initiated redistricting process in which the legislature is not involved. Part of this turns on what Legislature meant at the time of the Constitution’s drafting, as well as the use of the term Legislature in other parts of the Constitution which seems to more clearly refer to the representative body. Of course, there was no regular initiative process at the time of the founding, but that fact can cut either way. There are also two precedents which seemed to support the broader reading of “legislature,” but not only the conservatives, but also Justice Breyer, did not believe those cases settled the case.
When you add in Justice Thomas, who is likely to join fellow conservatives in reading Legislature in the narrow textual way, and possibly Justice Breyer, that looks like a majority which will reject a redistricting commission in which the state has no involvement.
What’s worse, Justice Scalia and others suggested that Congress (which has primary power over congressional elections) could not simply authorize redistricting commissions for drawing districts, because doing so would be an end run around the alternative power given to state legislatures.
And if the Court opens this pandora’s box, it is not clear how far it goes. Can legislatures be partially involved in the process? What if there is a veto power for either the legislature or a commission over alternative plans. And how far would this stop other laws affecting congressional elections passed by initiative? Justice Kagan asked:
Well, Mr. Clement, well how about that, because I thought that the legislature was completely cut out as to most of those things. I mean, you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, vote by mal; 1962, Arkansas, use of voting machines. All of things, these things were done by referendum or by initative with the legislative process completely cut out. So would all of those be unconstitutional as well? And we can go further. Im ean, there are zillions of these laws.
The worst part is that the initiative process is the best way to deal with legislative self-interest in the political process. And the Court seems poised to take away the one tool to keep down partisan gerrymandering, to keep the legislature honest, and to make sure the current process protects the will of the people.
What a shame.
[This post has been edited.]