Capitol Journal: Arizona redistricting fight has big implications for California
A major California political reform enacted by the voters is being threatened by the Arizona Legislature’s attempt to resume ugly gerrymandering of congressional districts.
It’s a monumental case before the U.S. Supreme Court. Justices will hear oral arguments March 2 and rule by summer.
Gerrymandering means drawing — twisting — the district lines in a clever way to rig the election outcome.
It’s usually done to increase the numerical strength of the party that controls the legislature. Democrats and Republicans have been equally guilty, depending on whether it’s in a blue or red state.
Or, as the California Legislature shamefully did in 2001, the lawmakers can merely enter into an unholy bipartisan cabal to protect incumbents of both parties against possible defeat at the polls.
Sometimes, a party may even devour its own by drawing a district that the lawmaker-on-the-outs can’t win, but another, more favored party member can.
Mainly, however, it’s about the outrageous redrawing of districts after each decennial census to bolster the party in control.
Lawmakers of the majority, in effect, select their own voters.
In California, these were the Democrats for five straight once-a-decade redistricting exercises, although two Republican governors rejected their partisan antics and rerouted the task to the state Supreme Court.
Finally, voters had their fill of the Legislature’s self-serving shenanigans. In 2008, through a ballot initiative pushed by good-government groups, Californians seized the redistricting of Assembly and Senate seats from the Legislature and handed it to an independent citizens’ commission.
Then they followed up in 2010 by also grabbing congressional redistricting from the lawmakers.
There have been some complaints about the commission being too race-conscious and drawing districts for particular ethnic groups. But, after its maiden venture in 2011, no one can accuse those citizens of taking sides politically. And — combined with top-two open primaries — more races have been competitive, with incumbents increasingly accountable to voters.
“The Legislature would have been much worse, and I’ve been there with the Legislature,” says Tony Quinn, a former Republican redistricting consultant who has criticized some of the commission’s “stupid things.”
Back to Arizona.
Voters there created an independent redistricting commission in 2000. But the infuriated Republican Legislature has rebelled and sued, claiming that the Founding Fathers in creating the Constitution gave the task of drawing congressional districts exclusively to legislatures.
Arizona lawmakers cite the so-called Elections Clause, Art. 1, Sec. 4: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof …"
The Arizona Legislature lost that argument in a federal district court last February. In a 2-1 decision, the majority decided that when voters amended the state’s constitution to create the commission, they were acting as the Legislature.
“The lawmaking power plainly includes the power to enact laws through initiative, and thus the Elections Clause permits the establishment and use of the independent redistricting commission,” the lower court concluded.
The Constitution, after all, does begin with these three words: “We the people…"
But at least four Supreme Court justices decided they want to think about this. So the panel agreed to hear Arizona’s appeal.
“I think it’s very dangerous,” UC Irvine elections law professor Rick Hasen says of the case. “I’m not happy about it at all.”
Many Californians are worried. Because if Arizona’s citizens’ commission is thrown out, California’s almost certainly would soon follow.
Benefiting by that would be California’s Democratic Party, especially the legislators.
To her credit, Democratic Atty. Gen. Kamala Harris has weighed in against gerrymandering — and her party’s interests — by signing a “friend of the court” brief submitted by a dozen other states defending the constitutional right to create a citizens’ commission.
While emphasizing she’s not pointing the finger at fellow California Democrats, Harris told me: “Knowing the history of our country, with gerrymandering, people manipulating the voting process for political purposes, it makes sense to allow independent commissions to make those decisions.”
Three former Republican governors — George Deukmejian, Pete Wilson and Arnold Schwarzenegger — also have submitted a friend of the court brief. It was largely written by longtime initiative attorney Steve Merksamer of Sacramento in conjunction with high-profile Supreme Court lawyer Theodore B. Olson.
Citing two old dictionaries, the governors’ brief argues that “in the Founding Era, the word legislature referred to legislative power or authority, not a particular legislative body…. The term Legislature thus unambiguously permits congressional redistricting to be undertaken by whatever lawmaking body the people of a state decide to vest with that power.”
A wise approach by the Framers, that brief maintains, because “for decades the California Legislature abused its power … adopting highly partisan gerrymandered districts that sparked costly political battles and at other times adopting bipartisan ‘sweetheart’ gerrymanders designed to insulate incumbents of both major parties from electoral competition.”
The court case affects only congressional elections, but there’s concern that if the Arizona politicians win, it will inspire an attack on legislative redistricting and perhaps other initiative-sparked reforms.
“It’s more than a camel nose under the tent,” says Allan Zaremberg, president of the California Chamber of Commerce, which also signed the brief. “No question, it would be an opportunity for someone to raise the issue of unconstitutionality and come after legislative redistricting.”
California Democrats would be the most likely to attack. So far, they’re sitting back. Waiting.
Waiting to pounce.
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