Court weighs future of independent redistricting
© Greg Nash

The U.S. Supreme Court appeared skeptical of independent redistricting commissions during oral arguments of an Arizona case that could have implications for the way states draw congressional districts. 

Justice Anthony Kennedy, who is often the court's swing vote, told the Arizona commission's lawyer, Seth Waxman, that “history works very much against you” while he was recounting the basis for part of his argument.

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The GOP majority in Arizona’s Legislature is claiming that the commission, approved by voters in 2000, violates lawmakers’ right under the Elections Clause of the Constitution to have a hand in the redistricting process.

Supporters of the commission, however, are arguing that the framers intended for the people to have some control over the way districts are drawn and elections are held.

The case will decide whether voters can deny state legislatures the power to draw congressional districts, which proponents of redistricting reform say helps stop lawmakers from consolidating power or gerrymandering a district map that favors their party.

“I think what you have to show is respect for the way that the state says the state Legislature can go about lawmaking,” said former solicitor general Paul Clement, who was arguing the case for the Arizona Republicans. “But it is completely different to say it's okay to cut the state Legislature out of the process entirely.”

The court’s more liberal members, however, seemed to doubt that argument, signaling that if voters approved such commissions by referendum, that is the process the Constitution intended. 

“If a state constitution says that the people hold the power and they can choose a commission or however else they want to do it. Isn't that the legislative process?” asked Justice Sonia Sotomayor.

The Obama administration is supporting the redistricting commission in the case.

If the court rules that it is unconstitutional for voters to create independent redistricting commissions through referendums, it could bring to a halt efforts by good government groups to put the commissions on the ballot in several states.

Many Democrats see the commissions as a way to break the Republican hold on statehouses around the country, while state lawmakers in the majority would be able to further consolidate power if they had more control over the redistricting process.

In addition to Arizona, California has an independent redistricting commission that was created by a voter referendum. Other states have commissions chosen by the legislatures, which could come under fire if the court rules on the case more broadly.

A decision on the case is expected by the end of the court’s session in June.