A Possible Return of Partisan Gerrymandering

California Congressional Districts Map 2014
California Congressional Districts Map 2014. Source: The Department of the Interior – National Atlas of the United States

As the Arizona State Legislature resumes its fight to reinstate gerrymandering for congressional districts, California may also witness the rebirth of gerrymandering in future elections. The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, is pending before the U.S. Supreme Court, which has decided to hear oral arguments from Arizona attorneys on March 2 and make a ruling by summer.

Gerrymandering refers to drawing district boundaries in a way that provides unfair advantages to a particular party or candidate in an election. Historically, the party that controls the legislature has practiced gerrymandering after each decennial census in order to increase its numerical strength and secure its legislative seats. The practice has been widely criticized because politicians of gerrymandered districts are essentially able to select their own voters, instead of the other way around. Both Democrats and Republicans have been equally guilty.

In 2008, Californians passed Proposition 11, also known as the Voters First Act, and seized the authority of redistricting of assembly and senate seats from the legislature. Then, an independent citizens commission, now called the California Citizens Redistricting Commission, which consists of five Democrats, five Republicans, and four commissioners from neither major party, became responsible for determining district boundaries. Two years later, voters further applied the act to congressional seats through the passage of Proposition 20, the Voters First Act for Congress.

Voters in Arizona created an independent redistricting commission eight years earlier than did Californian voters. The Republican Party, the majority party in Arizona, led the legal battle over whether an independent commission has the right to draw boundaries for districts. The Republican-led legislature sued the Arizona Independent Redistricting Commission (AIRC) in a federal district court last February, arguing that the U.S. Constitution bestows the power of drawing congressional districts to legislatures—and no one else. Arizona attorneys pointed to the Article 1, Section 4 of the Constitution, commonly referred to as the Election Clause:  “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations.” However, in a 2-1 decision, the federal court upheld the legality of independent redistricting commissions, stating that when voters amend the state’s constitution, they are fundamentally acting as the legislature. “The lawmaking power plainly includes the power to enact laws through initiative, and thus the Elections Clause permits the establishment and use of the independent redistricting commission,” the court concluded.

The Arizona legislature appealed the case directly to the Supreme Court. The Court, which had refused to hear cases on “partisan gerrymandering” several times in the past, has surprisingly agreed to review the case, presumably because Arizona’s case not only deals with gerrymandering but also a fundamental constitutional question:  Who is the legislature?

On the day of hearing oral arguments, the legislature was represented by Paul D. Clement, the 43rd U.S. Solicitor General and a partner of a D.C. law firm Bancroft PLLC, and AIRC was represented by Seth P. Waxman, also a former U.S. Solicitor General (41st) and an attorney from the multinational law firm of Wilmer Cutler Pickering Hale & Dorr.

Clement argued that turning over the redistricting authority to a “completely unelected and completely unaccountable” commission is “plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states.” On the other hand, Waxman claimed that the legislature actually refers to the legislative process. People of Arizona, Waxman said, were allocating “their legislative power as they wanted.”

The Court was fairly divided into ideological lines, with liberal justices supportive of the commission and conservative justices grilling Waxman. Justice Anthony M. Kennedy, who often holds the swing vote, did not seem to be convinced by Waxman’s argument. Kennedy pointed out that though the 17th Amendment in 1939 created direct election of senators by voters rather than by state legislatures, the constitutional power of the legislature to elect senators was never disputed even before the ratification of the amendment. “That history works very much against you,” Kennedy told Waxman.

Though we have to wait until summer for the decision, many Californians are concerned. If the Court finds independent redistricting commissions unconstitutional, California, as well as 11 other states that rely on citizens commissions, could see their commissions thrown out. If the legislature earns the sole right to redistricting, the party in control of the legislature would undoubtedly gerrymander districts to their advantage. For California, it would be the Democratic Party; for Arizona, it would be the Republican Party. But even some of the Democrats in California have spoken against gerrymandering. The Attorney General of California Kamala Harris, a Democrat, said, “Knowing the history of our country, with gerrymandering, people manipulating the voting process for political purposes, it makes sense to allow independent commissions to make those decisions.” While Harris, as one of the front-runners for Senator Boxer’s open seat, would not exactly be disadvantaged by gerrymandering because senators are elected statewide, this is quite a statement for her. Harris, after all, should try her best to earn support from her fellow Democrat House members for the upcoming election. The President of California Chamber of Commerce Allan Zaremberg, also a Democrat, added, “The Arizona litigation jeopardizes the will of the California electorate and its embrace of fair redistricting and competitive elections.”

In addition to concerns about whether the Arizona and California House maps and independent redistricting commissions can survive, a more serious anxiety lies with whether the Court, by strictly defining the legislature as the lawmaking body of Congress, would destroy voters’ power to enact any changes to election rules. If so, California’s open primary, which was enacted at the ballot box by voters rather than the legislature, may be invalidated. Simply put, the Court could potentially undo many of the initiatives and referendums California voters have approved, threatening California’s respected position as the champion of direct democracy. Justice Elena Kagan echoed such concern when she sharply questioned Clement, “I mean, you take the 2011 law in Mississippi adopting voter ID requirements; 2007, Oregon, voting by mail; 1962, Arkansas, use of voting machines. All of these things were done by referendum or by initiative with the legislative process completely cut out. So would all of those be unconstitutional as well? And we can go further. I mean, there are zillions of these laws.”

To be sure, even if justices respond to the plaintiff’s claim favorably, they might issue a somewhat neutral decision, such as that the AIRC is unconstitutional only when the legislature is completely neglected from the redistricting process. Then, a series of overturns of the “zillions of laws” that Kagan and Californians are fearing about might not be triggered. But the plaintiff’s argument calls for a strict disbandment of AIRC, making the possibility of a “neutral” ruling unlikely. So for now, the stakes remain high for California.