Capitol Journal: Supreme Court ruling reaffirms the power of voters, not politicians
That was a nice Fourth of July gift from the Supreme Court, reaffirming that “We the People” get to decide how our elected representatives are chosen.
The politicians are not endowed with an inalienable right — not even a constitutional one — to choose their own voters.
Thank you, especially Justice Anthony M. Kennedy, a Californian who grew up in the shadow of the state Capitol, the son of an influential lobbyist and political pal of Gov. Earl Warren. Kennedy again cast the swing vote in a landmark 5-4 decision.
Nifty timing, coming just before we celebrate the nation’s 239th birthday.
Although admittedly it would have been entertaining to watch the fireworks in California’s Capitol had the court empowered the politicians instead of the people. The lawmakers — in this case Democrats — could not have resisted creating mischief. It’s in their DNA.
But the court ruling was a win-win-win: for Republicans, for Democrats, for citizens.
In California, it means that some Republican members of Congress won’t face political annihilation by the Democratic-controlled Legislature. “The court saved Republicans from a real disaster in California,” says political analyst Tony Quinn, a redistricting guru. And it saved Democrats from themselves; they won’t be looking like self-serving, arrogant bullies.
And it means that voters can continue to use the tool of direct democracy — the ballot initiative — and outrank legislators in any lawmaking.
This court ruling was specifically about the arcane subject of drawing congressional districts. But some feared — and the court concurred — that if the decision had gone the other way, other citizen-originated reforms could have been jeopardized.
“Banning lawmaking by initiative to direct a state’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage,” Justice Ruth Bader Ginsburg wrote. “It would also cast doubt on numerous other election laws adopted by the initiative method of legislating.”
Californians not only have empowered an independent citizens commission to draw congressional districts, but also legislative lines. Independent redistricting combined with California’s “top two” open primary — a product of both the Legislature and voters — is resulting in more pragmatic, less politically extreme lawmakers being sent to Sacramento.
The state is becoming governable again.
For generations, legislative gerrymandering shamelessly rigged election outcomes, mainly to muscle up the majority, but also sometimes to protect incumbents of both parties. California voters put a stop to that in 2008 and 2010.
“We can’t let a legislature run rampant,” says Kathay Feng, executive director of California Common Cause. “They’re the worst people to vest redistricting power in.”
Arizona was ahead of us, forming an independent redistricting commission in 2000. There, the Republican-controlled Legislature angrily sued, contending that the Founding Fathers gave the task of drawing congressional districts exclusively to legislatures.
Arizona legislators cited the Constitution’s so-called Elections Clause: “The times, places and manner” of electing congressional representatives shall be decided “in each state by the legislature thereof.”
Reformers argued that voters could act as a legislature through the initiative process. And the court agreed.
Writing for the majority, Ginsburg asserted: “The Framers may not have imagined the modern initiative process…. But the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power.”
Ginsburg quoted the Declaration of Independence: “Governments are instituted among men, deriving their just powers from the consent of the governed.” And referencing the Constitution’s preamble, she wrote that “government derives its authority from ‘We the People.’”
In his dissent, Chief Justice John G. Roberts Jr. accused the majority of performing “a magic trick.” My, for such an august body, some of these justices sometimes do seem a bit uncivil.
In a biting retort of Kennedy’s earlier opinion striking down prohibitions against same-sex marriage, Roberts accused the majority of “stealing this issue from the people” and asked: “Just who do we think we are?” Good question. Maybe Fox News analysts?
Justice Antonin Scalia called Kennedy’s opinion “a judicial Putsch,” “pretentious,” “egotistic,” “silly” and filled with “straining-to-be-memorable passages.” Kids, especially law students: Pay no attention to such vitriolic language.
Now that the court has reaffirmed the voters’ power, we should make it easier to use. New California Secretary of State Alex Padilla is pushing some good ideas.
One Padilla-sponsored bill, AB 1461 by Assemblywoman Lorena Gonzalez (D-San Diego), would automatically register every Californian to vote when they go to the DMV. That measure passed the Assembly on a party line vote — Democrats for, practically all Republicans against. GOP politicians realize that new voters would tend to favor Democrats.
Another bill, SB 450 by Sens. Ben Allen (D-Santa Monica) and Bob Hertzberg (D-Van Nuys), would require that every voter be mailed an absentee ballot. They could mail it back or drop off the ballot at a voting center 10 days before the election.
Padilla says 6.6 million Californians are eligible to vote but are unregistered. He estimates the legislation could pick up 6 million new registrants.
California also is moving toward Election Day registration by 2018.
Last November, Padilla says, California had the seventh-lowest voter turnout of any state.
In signing the Declaration of Independence on that original July 4th, the Founders pledged their lives, their fortunes and their sacred honor. More of us should at least occasionally commit a few minutes to vote.
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