The Independent View: Supreme Court and Independent Redistricting Commission Case

This is an update of a previous post.

On March 2, the Supreme Court heard a case that could drastically limit the ability of voters to take responsibility for redistricting decisions out of the hands of legislators.

The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, challenges a state constitutional amendment adopted in 2000 by Arizona voters which created a politically neutral commission drawing new boundaries for the state’s congressional districts every ten years. Before the amendment, the state legislature, as in many states, had been responsible for setting and adjusting district lines.

A panel of three federal judges rejected the challenge earlier this year in a 2-1 decision, holding that the use of the term “legislature” in the Elections Clause should be read to refer to the entirety of a state’s legislative process, including ballot initiatives passed by the voters.

If the Supreme Court were to conclude that the Elections Clause prohibits citizen efforts to take the power to redistrict away from elected politicians, the decision could have far-reaching ramifications. A growing number of states in recent years, including California, have given independent commissions the power to set the boundaries of their congressional districts. In fact, almost half of the states now use redistricting commissions in some form, including as a backup if the legislature is unable to pass a redistricting plan. Efforts to adopt similar sorts of reforms are currently underway in Illinois, Ohio, and Wisconsin with Arizona and California frequently serving as models for proposed reforms.

A ruling in favor of the Arizona legislature could extend well beyond redistricting commissions. A strict reading of the clause also could throw into doubt a number of longstanding state practices, such as the power governors have in most states to veto redistricting bills. A ruling, likewise, could undermine constitutional amendments in places like Florida that have left redistricting power in the hands of elected officials but put sharp limits on what they can and cannot do in redistricting process. At its broadest, an expansive ruling could even jeopardize things such as Oregon's vote by mail system, also adopted through ballot initiative, and constitutional provisions in places like Arkansas that set out who is an eligible voter.

The case could invalidate congressional redistricting commissions in Hawaii, Idaho, New Jersey, and Washington. Depending on how the court rules could throw into doubt the tie-breaking procedures used in four states to resolve legislative deadlocks over maps.

The ramifications of the case extend beyond redistricting, however. If Arizona’s independent commission is struck down as unconstitutional, dozens of other state laws also could be at risk. These include 21 state laws adopted by ballot initiative and another 45 that needed approval by voters via a legislative referendum or constitutional amendment. Examples of such laws include Mississippi's voter identification law, Oregon's vote by mail ballot elections, and Ohio's ban on straight party voting.

In short, the ruling, expected in late spring or this summer, could be a blockbuster.