The future of California’s effort to entrust a nonpartisan citizens’ panel with redrawing the state’s congressional districts appeared in serious doubt Monday after arguments in the Supreme Court.
The court’s conservative justices voiced agreement with a lawyer for Arizona’s Republican-led Legislature who insisted the Constitution reserved redistricting power exclusively for elected state lawmakers.
Voters in Arizona and California have approved ballot measures in recent years that shifted redistricting authority from politicians to independent commissions in an effort to curtail creation of voting districts with boundaries that clearly favor a single political party or individual.
The case heard Monday raises the question of whether gerrymandering, as such partisan redistricting is known, is protected by the Constitution.
Arguing on behalf of the Arizona lawmakers, former U.S. Solicitor Gen. Paul Clement said voters may not “cut out” a state’s lawmakers and give the power to “an unelected and unaccountable commission.”
If the court’s majority agrees — which appeared likely based on the justices’ responses — the ruling would strike down numerous congressional districts in Arizona and California that were drawn by nonpartisan citizen commissions.
It also would deal a setback to reformers who see independent commissions as the best weapon to stop politicians from manipulating electoral district lines to protect incumbents or political fiefdoms.
California elects 53 members to the House of Representatives. The delegation, currently 38 Democrats and 15 Republicans, is the largest in Congress.
California’s voters approved the Voters First Act in 2008 to create the Citizens Redistricting Commission for state Legislature seats. Two years later, voters approved a second measure to extend its authority to congressional districts.
Leading Republicans in California, including former Govs. Pete Wilson, George Deukmejian and Arnold Schwarzenegger, strongly backed the commission plan. The Republican leaders filed a friend-of-the-court brief to the Supreme Court highlighting the history of Democratic dominance in Sacramento and urging the court to uphold Arizona’s commission.
Districts drawn by California’s commission left Democrats with a solid hold on the congressional delegation. But the redrawn districts also forced two senior House Democrats to fight for a seat from the San Fernando Valley in 2012. In that race, Rep. Brad Sherman defeated veteran Rep. Howard Berman.
Voters in Arizona adopted a ballot measure in 2000 to create a five-member independent commission for redistricting.
The state elects nine members to the House, currently five Republicans and four Democrats. Several of the seats are closely contested under lines drawn by the state commission.
A Supreme Court ruling in the Arizona case should not prevent independent panels from drawing districts for state legislators who serve in Sacramento or Phoenix. Clement argued that state legislators ultimately thus reflect popular views.
“If these commissions are as effective as my friends on the other side say, then we will have nonpartisan districts that will elect the statehouse … and these perfectly representative bodies will be the ones to take care of congressional redistricting,” he said.
Lawyers on both sides agreed that states may rely on “advisory” commissions to help draw election maps so long as legislators have the final word.
Reformers argue that giving the power to political operatives is the real problem. A party in control of the statehouse can redraw districts to ensure safe seats for its members.
The practice has a long political lineage. The term gerrymandering dates to 1812, when a supposedly salamander-shaped state Senate district in Massachusetts was created to help elect supporters of Gov. Elbridge Gerry.
The case heard Monday will hinge on whether the court decides that the Constitution reserves redistricting solely to state legislatures.
Clement pointed to a clause that says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
Justice Antonin Scalia said this refers to elected lawmakers only. Arizona, by contrast, “is giving this power to an unelected body of five people,” he said.
But the liberal justices said the word “legislature” can be understood broadly to refer to the state’s lawmaking process.
For example, a governor may veto a bill passed by the legislature. And in California and Arizona, the state constitution makes clear that the voters may change the law through initiatives.
Justices Elena Kagan and Sonia Sotomayor said the court should defer to the states on how they divide up power, rather than impose a rule from Washington.
With the justices split along ideological lines, the outcome probably depends on Justice Anthony M. Kennedy, a Sacramento native who is very familiar with California politics.
Kennedy asked skeptical questions of attorneys for both sides. But at one point he said constitutional history strongly suggested the word “legislature” referred only to the elected lawmakers.
If the court agrees with Clement, it would affect other election laws passed through ballot measures.
“This case could be really significant” by raising legal doubts about all manner of election rules, said Justin Levitt, an election-law expert at Loyola Law School in Los Angeles.
The justices will rule in the case of Arizona State Legislature vs. Arizona Redistricting Commission by the summer.