Justin here. And with all of the action in Arizona redistricting over the past few days, I thought I’d throw up just a little update, to help sort out what’s what — I’d have written a shorter post, but I didn’t have the time. Old SCOTUS, new SCOTUS, non-SCOTUS, all up after the break.
In most states, the default body to draw district lines for state and federal office is the legislature. Arizona is one of a few states to change this default; in 2000, Arizona citizens passed a ballot initiative giving control over the state’s legislative and congressional lines to an independent commission. The state’s independent body for nominating appellate judges selects a pool of Republicans, Democrats, and individuals not registered in either major party; each member of the legislative leadership chooses one commissioner from the pool (generally Republicans or Democrats), and those four choose a fifth who is not registered with either major party.
The big SCOTUS case on Monday was about whether this commission could draw congressional lines. The Constitution’s Elections Clause says that rules for federal elections “shall be prescribed in each state by the legislature thereof,” except when Congress says otherwise. The Court held that both the Constitution and Congress allow states to determine their law-making processes for themselves. That is, the Court upheld the use of the Arizona commission (and ballot initiatives elsewhere) to regulate federal elections. (Disclosure: I’d worked on an amicus brief construing the 1911 federal statute along the same lines as the Court. The brief also laid out a list of the questions – and potential chaos – awaiting a Court decision in the other direction.)
That was Monday. This morning, the Court went right back to the well, announcing that it would hear argument in another Arizona redistricting case (Harris v. AIRC). As with the last round, this case comes up on appeal to SCOTUS directly from a three-judge federal trial court, an unusual procedure mostly reserved for redistricting and campaign finance cases.
The new case, Harris, is about the state legislative lines the commission drew. There was a bitter controversy over the alleged partisanship of the commission’s chair (including an impeachment later invalidated by the state’s Supreme Court). The new SCOTUS case claims (in part) that partisanship bleeded over into the state lines as well. It alleges that the lines are systematically unequally populated, to favor Democrats and disfavor Republicans. (Though district populations can vary a bit for good reasons, it seems they cannot vary for bad ones: in a 2004 decision named Cox v. Larios, SCOTUS summarily affirmed a decision striking down Georgia districts as unconstitutional because they were systematically unequally populated to favor Democrats.)
A splintered three-judge trial court in Harris found that the lines were unequally populated because of the Voting Rights Act, not because of partisanship. The court found that the lines were drawn as they were in order to preserve the number of majority-minority and coalition districts in which cohesive minority populations had the ability to elect candidates of choice in a polarized political environment, under section 5 of the Act. An additional question for SCOTUS is whether underpopulation is permissible for this purpose. (And because Shelby County left section 5 no longer applicable, there’s still another question: even if it was once permissible, is it still?)
The case is superficially related to Evenwel, one of the other big districting cases at SCOTUS next Term. But really, the cases are quite different: Evenwel is about who counts in determining district size; Harris is about the justifications that may support small size differences. The case is another avenue for the Court to argue about whether partisanship is a problem in drawing district lines (and if so, under what circumstances). And it could lead to some curious alignments. The lead plaintiff, Wesley Harris, is a Tea Party activist seeking to overturn a map he claims favors Democrats with relatively small population deviations. But he may be looking for help from the leftish wing of the Court, more sympathetic to claims of partisan manipulation; moreover, Justice Scalia wrote specifically in Cox v. Larios to express his skepticism that such claims make out constitutional wrongs for the courts to hear. I’ve said before that I think SCOTUS lineups are more ideological than partisan; this case will be yet another test.
And there’s life beyond SCOTUS as well. Arizona has another case pending: a challenge (Leach v. AIRC) in state court to the congressional maps that has been held pending Monday’s disposition. Beyond Arizona, there are 25 other live cases in seven other states. And just six years to go before it all starts over again…