Supreme Court Weighs Overturning Dozens of Congressional Districts

The fate of a favorite anti-gerrymandering tool sat before the high court Monday, and the panel’s conservative justices seemed wholly unimpressed.

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC.
National Journal
Scott Bland
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Scott Bland
March 2, 2015, 8:07 a.m.

The fate of con­gres­sion­al dis­tricts and elec­tions around the coun­try may hang on how the Su­preme Court defines “le­gis­lature”—an ar­gu­ment that came to a head Monday in a clash between the Su­preme Court’s lib­er­al and con­ser­vat­ive wings.

At is­sue is wheth­er Ari­zona vi­ol­ated the U.S. Con­sti­tu­tion when voters stripped the state Le­gis­lature of the power to draw con­gres­sion­al dis­tricts, in­stead hand­ing that au­thor­ity to an in­de­pend­ent com­mis­sion. The move was in­ten­ded to re­duce ger­ry­man­der­ing, but it has been mired in leg­al con­tro­versy since the com­mis­sion star­ted its work after the last census.

And now, if the Court rules that the law doesn’t past con­sti­tu­tion­al muster, it would likely not only in­val­id­ate Ari­zona’s dis­tricts, but also those of a hand­ful of oth­er states—in­clud­ing Cali­for­nia—that have also put re­dis­trict­ing au­thor­ity in the hands of in­de­pend­ent com­mis­sions.

In or­al ar­gu­ments Monday, at­tor­neys for the state Le­gis­lature and the com­mis­sion sparred over wheth­er Ari­zona’s sys­tem was in keep­ing with a pro­vi­sion of the Con­sti­tu­tion that says state elec­tion pro­ced­ures “shall be pre­scribed in each State by the Le­gis­lature there­of.”

The com­mis­sion’s at­tor­neys are ar­guing for a broad defin­i­tion, say­ing that “le­gis­lature” refers gen­er­ally to the powers that make laws in a state. “Ari­zona defines its Le­gis­lature in its con­sti­tu­tion to in­clude both the people and two rep­res­ent­at­ive bod­ies,” said Seth Wax­man, a so­li­cit­or gen­er­al un­der Pres­id­ent Clin­ton and the com­mis­sion’s coun­sel of re­cord.

But sev­er­al of the Court’s con­ser­vat­ive justices ap­peared deeply skep­tic­al of the ar­gu­ment. Justice Ant­on­in Scalia poin­ted out that at the time of the Con­sti­tu­tion’s draft­ing, “there was no such thing” as a bal­lot meas­ure and that the Framers could not have in­ten­ded for that to be an av­en­ue for mak­ing elec­tion pro­ced­ure.

Chief Justice John Roberts asked Wax­man to ex­plain why the Con­sti­tu­tion would say “le­gis­lature,” as op­posed to “the state,” if the Framers in­ten­ded for someone oth­er than state rep­res­ent­at­ives and sen­at­ors to set re­dis­trict­ing and oth­er elec­tion pro­ced­ures.

Mean­while, the Su­preme Court’s lib­er­al justices ag­gress­ively ques­tioned the Ari­zona Le­gis­lature’s coun­sel, Paul Clem­ent—him­self a former so­li­cit­or gen­er­al un­der Pres­id­ent George W. Bush.

Justice So­nia So­to­may­or said pre­vi­ous opin­ions defined “le­gis­lature” to mean “le­gis­lat­ive pro­cess.” And Elena Kagan, the new­est mem­ber of the Court, asked Clem­ent why oth­er elec­tion laws es­tab­lished by bal­lot meas­ure (such as Ore­gon’s vote-by-mail sys­tem), had not pre­vi­ously been rendered un­con­sti­tu­tion­al in oth­er cases by his ar­gu­ment.

Clem­ent re­spon­ded that in Ari­zona, voters had spe­cific­ally stripped the state Le­gis­lature of a con­sti­tu­tion­ally provided power and giv­en it to an­oth­er body. “It’s not that nobody but the Le­gis­lature can ever do any­thing,” Clem­ent said in re­sponse to one ques­tion. But the Ari­zona bal­lot meas­ure “pur­posely di­vests the state Le­gis­lature” of au­thor­ity the Con­sti­tu­tion “clearly vests” in it, Clem­ent said in his open­ing state­ment.

The Ari­zona sys­tem landed in court after Re­pub­lic­ans were furi­ous with the state’s new maps, which res­ul­ted in Demo­crats hold­ing five of the state’s nine con­gres­sion­al dis­tricts fol­low­ing the 2012 elec­tions. State Re­pub­lic­ans ini­tially tried to re­move the chair of the com­mis­sion from her post be­fore a state court re­versed that ac­tion.

Al­though the case ori­gin­ated in Ari­zona, it could af­fect Cali­for­nia most of all. The coun­try’s biggest state voted to es­tab­lish its own in­de­pend­ent re­dis­trict­ing com­mis­sion in 2008 and 2010 after dec­ades of in­sider-con­trolled map-draw­ing that res­ul­ted in few con­gres­sion­al or state le­gis­lat­ive dis­tricts ever chan­ging hands. Wash­ing­ton and a hand­ful of oth­er states also have in­de­pend­ent com­mis­sions in­volved in their re­dis­trict­ing pro­cesses.

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