The Wall Street Journal : Trying to Pry the Gerrymander Out of Politics

February 27, 2015

The Wall Street JournalMore than 200 years ago, at the South Carolina convention that debated ratification of the U.S. Constitution, Charles Pinckney described the new country as “a republic, where the people at large, either collectively or by representation, form the legislature.”

It is the continuing validity of that definition that is at stake in a case that will be argued before the U.S. Supreme Court on March 2.

Arizona used “the people at large” to empower an independent redistricting commission to draw district lines for the U.S. Congress. A decade later, so did California.

Now the Arizona State Legislature is suing to invalidate the congressional maps, arguing that “the people at large” had no authority to create an independent commission with the power to draw district lines. It posits the Constitution gives that power exclusively to the legislature. If this view is accepted by the court, there may be repercussions far beyond merely Arizona and California. That’s why we joined with three former governors of California and the California Chamber of Commerce in filing an amicus brief with the court in this case.

Even where the legislature itself passed a law creating such a commission, as was done in four states, that too would be invalid because the legislature would still lack the final authority to vote on the district lines that the Election Clause requires.

And the effects may ripple beyond that. Hawaii created an independent commission by constitutional convention, while five other states use advisory commissions that recommend plans to the Legislature. Indiana and Connecticut use backup commissions that draw the lines if the legislature cannot agree on the maps. Florida voters enacted a ballot measure that constrains how the legislature may draw the lines, such as not favoring or disfavoring an incumbent.

It’s conceivable that all of these reforms could be ruled invalid.

The Supreme Court must determine the meaning of the Elections Clause of the U.S. Constitution. It contains two parts: the first provides that the “Legislature” of each state shall set the “Times, Places and Manner” of federal elections. The second says that Congress may “make or alter” any state laws on that topic at any time.

The Arizona Legislature argues that “Legislature” only means the specific group of elected members sitting in the state Capitol. But leading dictionaries from both just before and after 1787, most famously Noah Webster’s dictionary of 1806, defined Legislature as “the power that makes laws.”

Did “Legislature” include the people as a whole when they are the ones exercising that power? We don’t know because the ballot initiative was not in use at the time. But we believe the Framers were aware that states sometimes used other methods to decide issues and were distrustful of state legislatures. A referendum was used in one state to vote on the ratification of the Constitution itself. And the second line of the Elections Clause, giving Congress the power to override any state law relevant to a federal election, was adopted precisely because of the latter concern. Allowing for a broader definition of “legislature” would also be in accord with the vision of federalism and popular sovereignty that underlies much of 18th century American thought. The idea of a federal government of delegated powers was not intended to unduly limit the power of states. The Framers believed that each state needed freedom to operate. In Federalist No. 43, James Madison wrote that the Constitution would not mandate alterations in state government, and said, “Whenever the States may choose to substitute other republican forms, they have a right to do so.”

Regardless of how the original intent of the Framers is viewed, Congress may have settled the matter in 1911, when it rewrote the federal statute on reapportionment. It changed the words redistricting by “the legislature of such State” to redistricting by a state “in the manner provided by the laws thereof.”

The history shows that Congress talked about the recent innovations in state governments, including initiatives and referenda. One member even referred to nonpartisan commissions. We can infer from this legislative record that Congress understood that it was giving the state the right to draw new districts using its existing form of government.

Redistricting commissions are a work in progress. But flaws could be fixed before the next decennial reapportionment, and their body of work to date has represented an improvement over the undemocratic, partisan gerrymandering that has too often resulted from legislatures’ handiwork. They need to be preserved.

Bill Mundell is former chairman of Californians for Fair Redistricting, and was the executive producer of the 2010 feature documentary “Gerrymandering.”

Charles T. Munger, Jr. was the chief proponent of California Proposition 20, which put the drawing of California’s 53 congressional districts into the hands of a citizens’ commission.

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