Ned Foley on the AZ Redistricting Decision

At Moritz:

“The majority contends that its counterintuitive reading of ‘the Legislature’ is necessary to advance the ‘animatingng principle’ of popular sovereignty.” With this sentence in his dissent (at page 14), Chief Justice Roberts gets to the heart of the debate in today’s 5-4 decision in the Arizona redistricting case.

Roberts undoubtedly is correct that the much more straightforward reading of the term “Legislature” is to say that it means the institutional entity that consists of representative lawmakers elected by the citizenry, rather than to encompass the citizenry itself when it engages in a direct lawmaking capacity through the device of a referendum or ballot initiative. This more straightforward reading, as Roberts points out, sits more easily with other uses of the term “Legislature” in the U.S. Constitution, most especially the provision—subsequently superseded by the Seventeenth Amendment—that gave the power to elect U.S. Senators to the “Legislature” of each state, rather than to the citizenry.

But this straightforward reading would have the pernicious consequence of prohibiting the states from attempting to curb the evil of partisan gerrymanders by taking the power to draw congressional districts away from state legislatures and putting this power instead in the hands of independent redistricting commissions designed to be nonpartisan. As today’s opinion for the Court (written by Justice Ginsburg) observed on its very first page,       partisan gerrymandering has no legitimate defense in a democracy; it’s only a question of what means are available under the Constitution to combat it.


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