Op-Ed: California fixed redistricting; will the Supreme Court break it again?

Californians may not realize it, but one of their best political ideas is under attack.

In 2008, voters approved an initiative that created an independent redistricting commission; then in 2010, they expanded its reach to include the state’s congressional districts. The commission, which designed its first maps in 2011, has quickly become a model for the country. Structurally, it shields its members from political pressure. Aesthetically, its districts are compact and respect community boundaries. And electorally, they are competitive and politically balanced compared to the ones they replaced.

The reason this reform is in jeopardy? Arizona State Legislature vs. Arizona Independent Redistricting Commission — set to be argued before the U.S. Supreme Court on March 2. Since 2000, Arizona has had a very similar commission to California’s. Unhappy with how it drew the state’s nine congressional districts in 2012, Arizona Republicans filed a federal suit. They cited the Elections Clause in Article I of the U.S. Constitution, which states that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” The commission, obviously enough, is not “the legislature.” So, the plaintiffs say, it is unconstitutional for it to play a role in regulating the “manner” of elections for Congress.

If Arizona’s commission falls, California’s cannot stand. Both were created by voter initiative — not by the Legislature. Neither requires legislative approval for its maps. If anything, California is on even thinner legal ice. Arizona lawmakers actually select four of the five commissioners from a vetted list; California’s are limited to striking 24 from the final applicant pool of 60.

Fortunately, the fate of Arizona’s commission is hardly settled. As the commission explains in its legal brief, for almost a century the Supreme Court has interpreted “the legislature” to refer to a state’s lawmaking process in its entirety. If this process includes voter initiatives (as it does in about half of U.S. states), then there is nothing improper about voters deciding to transfer district-drawing authority to a commission. Laws enacted by initiative, after all, are just as valid as those passed by the Legislature.

But there are three arguments for redistricting commissions beyond the ones in the briefing. The first should be familiar to anyone who knows the saying about not letting the fox guard the henhouse. Legislators are the last people who should be responsible for redistricting because they have the most to gain by manipulating the process. In a bipartisan gerrymander, both parties’ incumbents entrench themselves in districts from which they are nearly impossible to dislodge. Alternatively, in a partisan gerrymander, one party “packs” and “cracks” its opponents to give itself a systematic advantage.

Commissions, in contrast, have no incentive to make such mischief. When designed like those in Arizona and California, they are staffed with non-legislators who cannot benefit personally from safe districts. They also have an equal number of members from each party, so that neither side can outvote the other. So a Supreme Court that cares about democratic values — as this one professes to — should embrace commissions with open arms.

The second argument for commissions is empirical. In a recent article, Eric McGhee and I calculated the extent of partisan gerrymandering for congressional district plans from 1972 to 2012. I also tracked which institution drew each plan: a commission, a court, a state government unified under a single party’s control or a divided state government. Pairing the two sets of data, I found that commissions substantially reduce gerrymandering relative to unified governments. Specifically, their plans are about half as distorted as the typical congressional plan. Plans drawn by courts and divided state governments are fairer as well (though not to the same extent).

These results mean that the benefits of commissions are not just theoretical. Election results confirm that, relative to legislatures, commissions draw maps that are less biased in either party’s favor. This is another reason for the court not to scrap the bodies. To do so would be to further increase the already staggering rates of gerrymandering in modern American politics.

The final point is one about consequences. If the court rules in favor of the plaintiffs, more than redistricting commissions could be eliminated. So too could every other non-legislative institution that helps regulate federal elections. In most states, for example, governors can veto district maps and state courts can review their legality. But neither governors nor courts are “the legislature,” so these actions might be banned. Similarly, voter initiatives dealing with issues such as ballot access, party primaries and campaign finance could be invalidated too.

To be sure, the court could issue a narrow decision that avoids sparking an election law revolution. It could hold that the Elections Clause is only violated when the Legislature is completely stripped of its redistricting authority. But the plaintiffs’ logic clearly supports a more aggressive ruling. If “the legislature” really means the state Legislature alone, then no other body should be able to regulate federal elections.

So the stakes are high — for Arizona, for California and for the country as a whole. Several of the justices are textualists who might be receptive to the plaintiffs’ claim. But even textualists are not mindless literalists and so should be able to resist a siren song with such pernicious implications for American democracy.

Nicholas Stephanopoulos is a law professor at the University of Chicago, where he specializes in election law.

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