How To Run For Congress in a District That Doesn’t Exist

As the Supreme Court considers the validity of Arizona’s electoral map, candidates are eagerly waiting for a final word on the lay of the land.

Things in Arizona are about to get weird[er].
National Journal
Feb. 16, 2015, 3 p.m.

Andy To­bin has an odd prob­lem. The Ari­zona Re­pub­lic­an thinks he can win a House seat in 2016 after his 2014 bid to un­seat a Demo­crat­ic in­cum­bent fell just short. But as he pre­pares his next bid, he can’t say for sure what dis­trict he’ll run in, or even if, by 2016, the dis­tricts he’s cur­rently eye­ing will still ex­ist.

That’s be­cause the fate of Ari­zona’s elect­or­al map is cur­rently sit­ting be­fore the Su­preme Court. The court will hear ar­gu­ments next month in a case that pits Ari­zona’s Re­pub­lic­an-led le­gis­lature against a state com­mis­sion that was as­signed to draw its Con­gres­sion­al dis­tricts. The com­mis­sion was cre­ated in 2000 in or­der to stop ger­ry­man­der­ing and cre­ate com­pet­it­ive dis­tricts, but law­makers say that pro­cess was un­con­sti­tu­tion­al be­cause the au­thor­ity to draw dis­tricts should be­long solely to the state’s elec­ted of­fi­cials.

After the March ar­gu­ments, the court will likely is­sue a rul­ing by the end of its term in late June. And when the rul­ing comes down, it has the po­ten­tial to shake up the Con­gres­sion­al map not just in Ari­zona, but in a host of states (in­clud­ing Cali­for­nia) that have looked out­side their le­gis­latures for help draw­ing the bound­ar­ies of their Con­gres­sion­al dis­tricts.

Here are some of the pos­sible court rul­ings, as well as what they mean for Con­gress.

Scen­ario 1: Status quo. Ari­zona’s map would re­main un­changed if the court rules in fa­vor of the com­mis­sion. In that case, Re­pub­lic­ans will still have four safe dis­tricts, Demo­crats will have two safe dis­tricts, and three will be toss-ups. And rather than al­low­ing the le­gis­lature to draw lines without many reg­u­la­tions, it would con­tin­ue to re­quire that the com­mis­sion cre­ate as many com­pet­it­ive dis­tricts as pos­sible in fu­ture re­dis­trict­ing ses­sions.

That doesn’t help To­bin’s chances at Con­gress in 2016, but he would still have a reas­on­able chance. He lost to Demo­crat­ic in­cum­bent Ann Kirk­patrick by just 5 per­cent­age points last cycle, and the dis­trict still leans Re­pub­lic­an — and against Pres­id­ent Obama.

This scen­ario would be the most fa­vor­able for Demo­crats, who would have a reas­on­able chance at hold­ing five of the state’s nine seats — which they did from 2012 to 2014 — if they over­per­form and win all three swing seats. By not push­ing any more Re­pub­lic­ans in­to swing dis­tricts, it would give Demo­crat­ic Rep. Kyrsten Sinema a likely path to reelec­tion if she chooses not to run for Sen­ate and would keep Re­pub­lic­an Rep. Martha Mc­Sally on her toes.

Scen­ario 2: SCOTUS tosses out Ari­zona’s sys­tem and the dom­in­oes fall. The Su­preme Court could rule that a truly in­de­pend­ent com­mis­sion like Ari­zona’s — one that draws maps without run­ning them past the le­gis­latures — is un­con­sti­tu­tion­al be­cause they cut the elec­ted law­makers out of the re­dis­trict­ing pro­cess. In that case, the Ari­zona le­gis­lature will re­draw the map from scratch. And it’s likely they’ll be re­quired to do that im­me­di­ately, rather than wait­ing un­til the next re­dis­trict­ing year after the 2020 Census, said Justin Levitt, a pro­fess­or at Loy­ola Law School who filed an amicus brief sid­ing with the com­mis­sion.

To­bin, who railed against the cur­rent maps while serving as speak­er of the state House, said that in draw­ing the lines, his party wouldn’t ger­ry­mander any more than the com­mis­sion did. For evid­ence, he points to the state’s two rur­al dis­tricts that loop oddly around dif­fer­ent re­gions. The dis­trict he ran in, for ex­ample, cov­ers a por­tion of north­w­est Ari­zona, the en­tire north­east­ern por­tion, an area just north of Tuc­son in the south­east, and a small part of the south­ern Phoenix metro area in the cen­ter of the state.

From Demo­crats’ per­spect­ive, this rul­ing would guar­an­tee a neg­at­ive out­come, be­cause Re­pub­lic­ans would be in charge of draw­ing the maps. “It’s go­ing to be bad for Demo­crats and bad for Ari­zona,” said D.J. Quin­lan, ex­ec­ut­ive dir­ect­or of the state Demo­crat­ic Party.

Quin­lan said he would ex­pect Re­pub­lic­ans to try to draw six safe Re­pub­lic­an dis­tricts in­stead of the cur­rent four, one “semi-com­pet­it­ive” dis­trict that would lean Re­pub­lic­an, and two Demo­crat­ic dis­tricts that pack as many lib­er­al voters in­to Reps. Raul Gri­jalva’s and Ruben Gal­lego’s dis­tricts as pos­sible.

Bey­ond Ari­zona, the court rul­ing would al­most toss out the dis­trict bound­ar­ies of the five oth­er states — Cali­for­nia, Alaska, Idaho, Montana, and Wash­ing­ton — that have al­lowed in­de­pend­ent com­mis­sions to their elect­or­al maps, for­cing those states to go back to the draw­ing board. Alaska and Montana each con­tain only one Con­gres­sion­al dis­trict, and Idaho has two, so the re­per­cus­sions would likely be min­im­al. But in Wash­ing­ton and par­tic­u­larly in Cali­for­nia, the massive maps and high num­bers of rep­res­ent­at­ives would set off a con­ten­tious fracas as in­cum­bents work to pro­tect their seats and their party’s chance at gain­ing the up­per in hand.

Scen­ario 3: The un­likely, but still pos­sible, rad­ic­al re­or­gan­iz­ing. It’s also pos­sible, but not very likely, that the court throws out the con­gres­sion­al maps of any state that in­volves any­one but the state le­gis­lature — pos­sibly in­clud­ing com­mis­sions, gov­ernors, and even oth­er courts, Levitt said. That’s if the court de­cides that when the Con­sti­tu­tion gives the “le­gis­lature” the power to draw new maps, it lit­er­ally means only the le­gis­lature and no oth­er por­tion of the le­gis­lat­ive pro­cess, he said.

In that scen­ario, the re­per­cus­sions would be so drastic that there’s not much spec­u­la­tion about the con­sequences right now.

“I think it’s im­possible to pre­dict the ef­fects,” said Tim Storey, spokes­man for the Na­tion­al Con­fer­ence of State Le­gis­latures, which filed a brief sid­ing with the le­gis­lature. “Once you take the lid off and start from scratch, any­thing is pos­sible.”

Levitt be­lieves this scen­ario is un­likely: He ar­gues that in two pre­vi­ous cases, the court has ruled in par­al­lel scen­ari­os that “le­gis­lature” refers to the usu­al pro­cess of passing laws and doesn’t ex­clude every­one but state law­makers.

And, al­though the court’s top pri­or­ity is in­ter­pret­ing the law, it also takes in­to ac­count how much polit­ic­al hav­oc its de­cisions can cause, Levitt said.

“If it de­cides against the com­mis­sion, de­pend­ing on how it de­cides, it could throw a whole lot in­to chaos,” Levitt said. “De­pend­ing on how the court rules, if it says ‘le­gis­lature means le­gis­lature, peri­od,’ most con­gres­sion­al dis­tricts in the coun­try are in­val­id.”

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