The United States Supreme Court on Monday heard oral argument in a case testing whether Arizona can have an independent commission draw its congressional election districts instead of state legislators.
At issue is an innovative attempt in Arizona to address the kind of partisan gerrymandering that is routine in most states. Typically, legislators of the controlling political party draw district lines that favor their party and hurt the opposing party.
But in 2000, Arizona voters passed a ballot initiative that assigned congressional redistricting to a five-member independent commission. Six other states, including California and New Jersey, also assign congressional redistricting to independent commissions, and election reform advocates have pushed for more states to follow Arizona’s lead.
The question before the high court is whether assigning this role to an independent commission violates the US Constitution.
The election clause reads in part: “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”
In 2012, members of the Arizona state legislature sued to have the state’s independent redistricting commission declared unconstitutional. They said the voter initiative and resulting independent commission permanently usurped power that the US Constitution assigns specifically to the state legislature.
Based on questions posed during the hour-long oral argument, the commission and its proponents may be facing an uphill battle at the high court.
In his argument on behalf of the Arizona legislature, former US Solicitor General Paul Clement said creation of the Arizona commission violated the Election Clause because it redelegated legislative authority to an unelected and unaccountable commission.
Mr. Clement said that scheme was “plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the States.”
He said the Arizona legislature would have no problem if the Independent Redistricting Commission was an advisory body. But the commission’s actions are permanent and unreviewable by the legislature, he said.
“What we object to is the permanent wresting of authority from the state legislature,” Clement told the court.
If that is the case, Justice Elena Kagan asked, what about all of the laws established by referendum or ballot initiative completely apart from the work of a state legislature? They include a Mississippi voter ID law, voting by mail in Oregon, and use of voting machines in Arkansas, she said.
“Would all of those be unconstitutional as well,” Justice Kagan asked. “And we can go further,” she said. “I mean, there are zillions of these laws.”
The difference, Clement said, is that none of those measures sought to redelegate authority away from state legislatures. To the contrary, he said, many of them actually delegated authority to state lawmakers to implement the measures.
Another former US solicitor general, Seth Waxman, is representing the Arizona commission. He urged the justices to embrace a broader view of the Constitution’s term “legislature thereof.”
“Arizona defines its legislature in its constitution to include both the people and two representative bodies,” Mr. Waxman said.
Under this view, a referendum establishing an independent commission would be an act, broadly speaking, of the Arizona legislature, he said.
Justice Antonin Scalia disagreed. “Give me one provision of the Constitution that uses the term ‘legislature’ that clearly was not meant to apply to the body of representatives of the people that makes the laws,” Justice Scalia asked.
Waxman began to reply: “There is no provision.…” He was cut off.
“All I want is one provision of the Constitution that clearly has your meaning,” Scalia insisted. “And I looked through them all. I can’t find a single one.”
Waxman suggested a passage from a Supreme Court decision from 1916.
Justice Anthony Kennedy joined the exchange. “It seems to me that that history works very much against you,” he said to Waxman.
The former solicitor general persisted. He told the justices that nearly half of the states have defined their own legislative power to include the people using a ballot initiative.
Other states that assign congressional redistricting to independent commissions are Hawaii, Idaho, Montana, and Washington. Seven states use commissions in an advisory role to assist lawmakers in drawing election maps.
The case is Arizona State Legislature v. Arizona Independent Redistricting Commission (13-1314).
A decision is expected by late June.