Within the next month or so, the Supreme Court is poised to issue its opinion in Arizona State Legislature v. Arizona State Redistricting Commission. The key question is whether state can use independent redistricting commissions (without the involvement of the legislature) to pass plans for congressional districting. The Constitution gives state legislatures the power to set the rules for congressional elections, unless Congress steps in and sets rules (as it does, for example, in requiring states to use only single member districts for congressional elections.) These independent redistricting commissions are used in other states, including California, and many were created through an initiative process which gets around the self-interest which swirls around legislatively-drawn districts. A ruling against the Arizona commission would strike a big blow against these efforts to limit partisan gerrymandering.
Well now there is an effort in Congress to blunt the effect of such a ruling if it comes. According to a Common Cause press release, “Common Cause is pleased that U.S. Reps. Dana Rohrabacher, R-CA, and Alan Lowenthal, D-CA, have introduced H.R. 2501, the Citizens’ Districts Preservation Act. This bill would preserve until after the next census congressional districts drawn by citizen-led independent and bipartisan commissions created to end gerrymandering.” See also ,this release from Reps. Rohrabacher/Lowenthal, plus an op-ed.
It is not clear that the bill has much chance of going anywhere in Congress (what does these days?) particularly in time to affect the next elections. The partisan incentives are all mixed up here, and vary from state to state (e.g., Republicans in CA love independent redistricting while Arizona Republicans hate it, in part given the control of each state’s legislature).
Further, there are some serious constitutional questions about this bill, if it passes. It is not clear if Congress can bless the use of redistricting commissions over the objections of state legislatures. Perhaps this bill is okay if it is seen as Congress simply approving particular congressional districts (although those districts were drawn by commissions). Perhaps there is a problem under Shelby County v. Holder‘s equal sovereignty provisions (that’s the case striking down the preclearance provisions of the Voting Rights Act applied only to some states) because this bill applies only to 6 states. There is a debate on this topic beginning on the election law listserv, although I think there is no way to know of the bill’s constitutionality at least until we read the Arizona case.
But with all the talk about whether Congress will get around an adverse Obamacare ruling if one comes, it may be the Arizona case which prompts a congressional reaction.