Independent Redistricting Panel Doubted by U.S. High Court

U.S. Supreme Court justices cast doubt on the use of independent commissions to draw congressional district maps, suggesting the court will deal a blow to efforts by some states to make elections more competitive.

Hearing arguments Monday in Washington, the justices voiced support for contentions by Arizona’s Republican-controlled legislature, which says that a 2000 ballot initiative that set up the commission unconstitutionally stripped lawmakers of any power over federal redistricting.

Arizona is among a handful of states that give an independent panel the primary responsibility for congressional district lines. It’s one of only two -- along with California -- that effectively exclude the state legislature from the redistricting process, according to the National Conference of State Legislatures.

The one-hour argument suggested that at least the Arizona and California systems are now in legal jeopardy. The session focused on the Constitution’s elections clause, which says the rules governing congressional elections are to be set by “the legislature thereof.”

The lawyer defending the Arizona commission, Seth Waxman, drew skepticism from the court’s Republican-appointed majority when he argued that the word “legislature” encompasses the state’s entire legislative process, including ballot measures.

Justice Scalia

Justice Antonin Scalia challenged Waxman to identify any provision in the Constitution where the word “legislature” had such a broad meaning.

“I’ve looked through them all,” Scalia said. “I can’t find a single one.”

Justice Anthony Kennedy pointed to a since-amended provision of the Constitution that said U.S. senators from each state would be chosen by its “legislature.” He said the debate over that provision, which was superseded in 1913 when the 17th Amendment provided for direct election of senators, never suggested that the “legislature” would encompass a ballot initiative.

“It seems to me that that history works very much against you,” Kennedy told Waxman.

The Supreme Court has generally resisted efforts to make elections more competitive. The court has refused to put limits on partisan redistricting and, under Chief Justice John Roberts, has rejected efforts to use campaign-finance regulations to curb the influence of money.

‘Totally Superfluous’

Roberts Monday joined in the questioning of Waxman, saying the lawyer’s approach would render the elections clause’s reference to the legislature “totally superfluous.”

The commission drew its strongest support from two Democratic-appointed justices, Elena Kagan and Sonia Sotomayor.

Kagan said past Supreme Court decisions had afforded “a lot of respect” to the states in the methods they use to draw district lines.

The lines drawn by the Arizona commission for the 2012 election helped Democrats capture five of the state’s nine congressional seats. Republicans retook one of those seats in 2014.

The Arizona Independent Redistricting Commission is a five-member body whose commissioners come from a list of 25 candidates selected by a separate body that also handles judicial appointments.

Politically Competitive

Two commissioners are selected from that list by the state legislature’s highest-ranking Republicans, two by the top Democrats and the fifth by the four other panel members. Lawmakers themselves are barred from serving on the commission.

The panel’s criteria for drawing voting lines include the goal of having politically competitive districts.

A divided three-judge panel backed the commission, saying past Supreme Court decisions establish that the word “legislature” encompasses states’ entire lawmaking process, including ballot initiatives.

The case is Arizona State Legislature v. Arizona Independent Redistricting Commission, 13-1314.

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