Trying to Pry the Gerrymander Out of Politics
Arizona voters want an independent commission to handle redistricting. Irate state legislators sued.
By Bill Mundell And Charles Munger Jr.
More than 200 years ago, at the Massachusetts convention to debate ratifying the U.S. Constitution, state representative Theophilus Parsons emphasized the need for a remedy if “a state legislature” were to “make an unequal and partial division of the state into districts for the election of representatives.” But although the Framers responded by providing for federal regulation of elections in the new Constitution, the problem of gerrymandering persists.
Courts and legislatures struggled to address gerrymandering for decades, but it was not until 2011 that one state, Arizona, successfully used a ballot initiative to create an independent commission to draw district lines for Congress. Now the Arizona state legislature is suing to invalidate the lines drawn that year, arguing that the U.S. Constitution requires that the state legislature draw those lines. On March 2, the U.S. Supreme Court will hear arguments in this lawsuit.
We in California have a strong interest in this court case. That’s because California used the ballot to go even further than Arizona and barred the legislature from directly selecting the members of the commission. We, together with three former governors of California and the Chamber of Commerce, filed an amicus brief that among other things demonstrates that the dangers inherent in this lawsuit extend well beyond Arizona and California.
A broad decision from the high court eliminating any regulation of the “manner” of federal elections not made by state legislators could not only invalidate fair redistricting in other states that use independent commissions but also threaten important existing reforms that were first accomplished by ballot measure, such as permanent voter registration and all-mail balloting.
The principal issue before the court is: What does the Elections Clause of the Constitution mean? It says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . .”
The Arizona legislature argues that “Legislature” may only mean the specific group of elected members sitting in the state capitol. But the dictionary known to the Framers, by Dr. Samuel Johnson, defined legislature as “the power that makes laws.” So did Noah Webster, when he wrote his 1806 dictionary.
For the past century, some states have used the initiative and referendum as “the power that makes laws” on a broad range of subjects. In spite of the fact that state legislatures have historically misused their power to redistrict, the Arizona legislature insists that the citizens of Arizona should not be allowed to use the initiative to create a commission to draw new lines.
We will never be certain of how the Framers would have defined “Legislature,” because the initiative was unknown in 1787. But we do know their views on federalism and fair elections.
The authors of the Federalist Papers contemplated that Congress would serve as a backstop in case the state legislatures abused their power to regulate elections to cripple the nascent federal legislature. Hence that second line in the Elections Clause, giving Congress the power to pass its own laws that would override state rules. Had Congress been displeased with the use of new alternative political structures to carry out redistricting, it could have mandated that redistricting be done solely by the legislators.
But Congress never did so. In fact, a later Congress acted to further clarify the vision of the Framers by considering the changed landscape and explicitly giving the states freedom to act in accordance with their own laws. In 1911 Congress changed the relevant law, which had referred to redistricting by “the legislature of such State” to provide that the redistricting should be done by a state “in the manner provided by the laws thereof.”
This was done after a floor discussion of the then-new phenomenon of the statewide initiative, first adopted in 1898 in South Dakota, and some mention of nonpartisan commissions. It would now be up to the states to choose the means to accomplish their duties.
And yet today we have the remarkable irony of state legislators arguing that the clause intended to give Congress the power to prevent gerrymandering instead forbids a state from preventing it.
The commissions recently used in California and Arizona may have their flaws. But those could be fixed before meeting again in six years time. Already, they have proven to be far more open, transparent and responsive to diverse groups than the alternative—legislators meeting in a backroom and producing new maps. And like it or not, commissions produced many more competitive seats in 2012 and 2014 than had been seen in the past.
There should never again be a situation like that in California in the decade of the 2000s where, in a state with 53 House seats, there was a change of party exactly once in 265 House races. “We the people” deserve better.
