WASHINGTON -- The Supreme Court ruled 5-4 on Monday that a voter-approved independent redistricting commission in Arizona is constitutional. The conservative wing of the court was in the minority.
In response to complaints that the state legislature was engaging in partisan gerrymandering of congressional districts, Arizona voters approved an independent commission to draw district lines in a 2000 ballot initiative. The commission has two Republicans and two Democrats, who legislative leaders choose from a list composed by the state's Commission on Appellate Court Appointments, in addition to a chairman who may not be a member of either party.
Republican legislators sued after the 2012 election, arguing that they shouldn't be completely cut out of the district-drawing process.
The case before the Supreme Court -- Arizona State Legislature v. Arizona Independent Redistricting Commission -- hinged on one word: "legislature." It arose out of a debate over the Constitution's elections clause, which dictates that the "times, places, and manner" of federal elections "shall be prescribed in each state by the legislature thereof."
In oral arguments before the court in early March, the court's four more conservative justices, plus Justice Anthony M. Kennedy, the swing vote, seemed skeptical of the commission's argument that "legislature" can also mean the legislative process, including ballot initiatives.
But in its decision, the court's majority, including Kennedy, wrote that overturning the independent commission would go against the spirit of the elections clause.
"The Elections Clause permits the people of Arizona to provide for redistricting by independent commission," the decision read. "The history and purpose of the Clause weigh heavily against precluding the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts. Such preclusion would also run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government."
The decision continued: "The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. It would thus be perverse to interpret 'Legislature' in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be 'chosen... by the People of the several States.'"
In their dissenting decision, the court's conservative justices wrote that the majority was ignoring evidence and "relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy."
"Nowhere does the majority explain how a constitutional provision that vests redistricting authority in 'the Legislature' permits a State to wholly exclude 'the Legislature' from redistricting," the minority decision continued. "Arizona’s Commission might be a noble endeavor -- although it does not seem so 'independent' in practice— but the 'fact that a given law or procedure is efficient, convenient, and useful... will not save it if it is contrary to the Constitution.' INS v. Chadha, 462 U. S. 919, 944 (1983). No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution."
The Supreme Court has previously ruled that “legislature” can refer to legislative power and the legislative process, as exercised by the people through direct democracy, since the Constitution's framers at the time didn't foresee how initiatives and referenda would become the law in states like Arizona.
As Justice Elena Kagan pointed out in March's oral arguments, state legislatures have previously been cut out of election administration issues with the advent of measures to instate voter identification and mail-in voting, as established by initiatives in in Mississippi and Oregon, respectively.
"There are zillions of these laws," Kagan said. "So would all of those be unconstitutional as well?"
The legislature's attorney, Paul Clement, said those election laws wouldn't be at risk because they didn't take power away from the legislature, as the creation of the Arizona Independent Redistricting Commission did.
Kennedy, who is often key to Supreme Court decisions, took a different tack during the oral arguments, noting that U.S. senators were chosen by state legislatures until 1913, when a constitutional amendment gave that power to the people.
"It seems to me that history works very much against you," Kennedy told the commission's attorney.
In Monday's ruling, the court's conservative justices used the example of the amendment allowing for the election of U.S. senators to make their point in the dissent that the independent commission should have been ruled unconstitutional.
"What chumps!" the minority decision taunted, saying Arizonans who ratified the 17th Amendment should have realized they simply could have interpreted "the legislature" to mean "the people."
"The Court today performs just such a magic trick with the Elections Clause," the dissent continues. "That Clause vests congressional redistricting authority in 'the Legislature' of each State. An Arizona ballot initiative transferred that authority from 'the Legislature' to an 'Independent Redistricting Commission.' The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising 'the Legislature' to mean 'the people.' The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court."
Arizona's legislators had initiated no legal action against the commission until after the 2010 census, when the commission drew four safe seats for the GOP, two for Democrats and three toss-up districts -- all of which went for Democrats in 2012. After that election, Republicans began attacking the commission's members as unaccountable to the people since they are unelected.
Arizona Democrats were thrilled by the ruling.
“Arizona voters said that they want an open, transparent and fair redistricting process, which is why they established the Independent Redistricting Commission," state House Democratic Leader Eric Meyer said in a statement. "The Supreme Court decision today protects the will of the voters and will help prevent partisanship and political ambition from influencing the redistricting process. Our state is better served by having a body, independent of the Legislature, in charge of this important task.”
The case the Supreme Court heard could have had potential implications beyond Arizona. If the justices had ruled in favor of the plaintiffs, the case was expected to overturn California's commission, since that state had similarly removed its legislature from the vast majority of the district-drawing process. Eleven other states -- Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Jersey, New York, Ohio and Washington -- also have commissions, though their lawmakers are more involved in the process.
The court's minority argued there is a "critical difference" between Arizona, where citizens "supplanted the legislature altogether," and other states whose independent commissions "supplement" the legislature's role. But the court's majority said a ruling against the commission would have affected how elections are conducted in states beyond Arizona.
"Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would not just stymie attempts to curb gerrymandering," it wrote. "It would also cast doubt on numerous other time, place, and manner regulations governing federal elections that States have adopted by the initiative method. As well, it could endanger election provisions in state constitutions adopted by conventions and ratified by voters at the ballot box, without involvement or approval by 'the Legislature.'"
Would-be challengers to the representatives of Arizona's three competitive congressional districts -- Democratic Reps. Ann Kirkpatrick and Kyrsten Sinema and GOP Rep. Martha McSally -- had held off on jumping into those races for 2016 until the Supreme Court issued its decision.
Read the opinion below: