Green Light for Redistricting Commissions

In several states, voters (not trusting their legislators to be able to resist “stacking the deck” when drawing congressional district boundaries) have opted to take that power away from their legislators and place it with a non-partisan commission.  Today, in a 5-4 decision, the United States Supreme Court found that the U.S. Constitution gave the voters of the states the right to choose this method for drawing congressional district lines.

Almost from the beginning of the United States, there has been a tendency of legislatures to gerrymander district lines.  There are several reasons why legislators are tempted to draw “unfair” lines.  First, for congressional lines, legislators tend to know members of Congress very well.  In many cases, members of Congress were key supporters of the state legislator when she ran for office.  There is also a tendency of exchange of favors with members of Congress getting special projects for state legislators’ districts and state legislators doing what needs to be done to authorize the pet projects of members of Congress, plus both getting internships and political jobs for members of each other’s family.   Second, especially when a member of Congress is about to retire or seek a different office, legislators who hope to move up to fill that open seat want a favorable district.  Third, party bosses want to firm up control of the seats that their party currently controls and (if the state is gaining or losing seats) want to make sure that any lost seat comes from the other party’s seats and any new seats go to their party.  The result has been a slow decline in the number of competitive seats nationally.

Tired of seeing district lines drawn to benefit incumbents and the political party that controls the state, voters in some states have opted to establish “non-partisan” commissions to draw the lines for legislative and congressional districts.  In 2000, the voters of Arizona opted to join this mini-trend.  After the 2010 redistricting process, Republican legislators filed suit seeking to set aside the lines drawn by Arizona’s commission on the theory that federal law (primarly, the “Time, Place, and Manner” Clause of the U.S. Constitution mandated that congressional lines be drawn by the state legislature.

As Justice Ginsburg noted, this theory took the reference to legislature in that clause out of its historical context.  In 1787, when the Framers drafted the Time, Place, and Manner Clause, there was some direct democracy (primarily the New England town hall meeting and ratification of state constitutions by the voters), but direct democracy was not that common.  No state had a process for passing state laws by the voters or for voters initiating laws and constitutional change.  It was only starting in 1900 that states began authorizing voters to propose laws and constitutional amendments.  Because of this lack of direct democracy at the state level, the Time, Place, and Manner Clause was primarily concerned with the role of the federal government in congressional elections (giving Congress a limited role) than in who at the state level had a say in enacting state election law.  Taking this history into account, and the general delegation of the power to structure state government to the people of a state by the Tenth Amendment), the majority found that the reference to legislature in the Time, Place, and Manner Clause was to the “law-making” power of state government, and that the people of a state could place that “law-making” power in whatever body they saw fit.

The legislators also asserted that federal statutes also only authorized the state legislatures to draw congressional district lines.  The first part of Title II of the United States Code deals with the redistricting process.  For the most part, these statutes deal with the re-apportionment process for allocating seats to the states.  Because some states will gain seats and others lose seats, federal law addresses how to elect representatives in those states if the state has not redrawn the lines to account for the change to the number of seats.  Of particular significance is Section 2a(c) which refers to states redistricting in the manner provided by law.  Looking at the history underlying the various predecessors of this provision, the majority noted that the reason for the current language was a recognition that states would have different rules and methods for drawing district lines, including some rules that might be established by state constitutions rather than by ordinary legislation.  The legislators suggested that this provision should be ignored because court decisions, primarily the Supreme Court’s “one man, one vote cases” assured that courts would intervene if states failed to redistrict, making it highly unlikely that any state would ever face an election in which it had failed to redistrict after a census.  However, the majority found that court decrees qualified as “in the manner provided by law” and, thus, this statute was not completely meaningless.

In the short run, today’s decision is a win for Democrats.  However, there are some states (e.g. California) where redistricting commissions are likely to benefit Republicans.  In the long run, it is a win for the concept of competitive elections and for popular sovereignty.  While the devil is in the detail of redistricting commissions (how the members are chosen has a large effect on their ability to put partisan considerations to the side), they represent the best chance to get fair districts.

I also find it enlightening that the four Justices who on Friday perceived the Supreme Court striking down laws barring same-sex marriage as a threat to democracy today argued that the Supreme Court should use strike down a state constitutional provision designed to protect democracy.

With today’s decision, the active part of the Supreme Court term is at an end.  Over the next several months, the Supreme Court will occasionally awake from its summer hibernation to deal with emergency petition, but it will not address substantial matters until the new term starts in the fall.  Over the next week or two, I will have a couple end of term posts looking at this year’s civil rights and First Amendment cases as well as a dive into this term’s statistics.  (And, of course, in the fall, there will be a preview of the next term which will include some interesting cases, including another round of litigation on affirmative action in college admissions).   Between now and then, I am certain that the three ring circus that is the Republican Presidential Primary will include lots of discussion about this term’s decisions.

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