Supreme Court's Redistricting Ruling Averts 2016 Chaos—But Will It End Gerrymandering?

It will take more than one court ruling to end the legislative tinkering that produces safe districts, election reform advocates say.
Graphic: Bloomberg

Election-reform advocates breathed a sigh of relief Monday when the Supreme Court upheld a voter-approved independent redistricting commission in Arizona. The court's 5-4 decision averted potential chaos in the 2016 elections, but whether it represents a significant victory for reformers trying to come up with antidotes to partisan gerrymandering remains to be seen.

"We escaped not a bullet but a cannonball," Michael P. McDonald, an election law expert who teaches political science at the University of Florida, said after the Supreme Court, meeting on the last day before its long summer recess, the opinion in the Arizona case, written by Justice Ruth Bader Ginsburg, the leader of the Court's liberal wing. That's because the case could have invalidated a host of election-law changes that have been made through statewide referenda, running the gamut from redistricting rules to voter ID laws.

Ideologically, "it would've cut both ways. Some liberal-favored laws and conservative-favored laws would've been at risk," McDonald said. 

Whether the court's ruling will boost the election reform movement that was the basis for the Arizona commission, however, is more open to question. Arizona is one of just two states that currently relies on an commission that is completely independent of the legislature to do its redistricting, the decennial redrawing of congressional and state legislative maps. The other is trend-setting California.

Traditionally, the process is handled by state legislatures and is highly politicized, with state lawmakers jockeying to draw lines that will advantage themselves and their political parties. Both the Democratic and Republican parties now have national fundraising committees devoted to winning as many state legislative seats as possible, in part so they can control as much of the district line-drawing as possible. Republicans have had the upper hand in that fight since their 2010 sweep.

In a friend-of-the-court brief filed in support of the Arizona redistricting commission, Thomas Mann and Norman Ornstein, two congressional scholars and authors of The Broken Branch, a book about hyper-partisanship in Congress, called independent commissions a necessary antidote to such political gamesmanship. Seats that are "safe" for one party or another, they argue, result in candidates who tend to worry more about placating ideological extremes—and thus avoiding a primary challenge—than in finding middle ground. 

The high court's ruling in favor of the Arizona redistricting panel won't necessarily lead to more independent commissions, Ornstein and McDonald agreed. Both scholars said that there are myriad more obstacles than court challenges to creating such groups.

While a ruling that went the other way it would have "made it impossible not just to alter redistricting but anything involving the election process by bypassing self-interested politicians," it's not a guarantee of progress, Ornstein said.

"It's dodging a bullet more than it is having a big fancy gun for yourself," he added, noting that passing ballot initiatives is extremely difficult in some states. "We're back to, in effect, the status quo ante. You can do the commissions, but it's still going to be a state-by-state slog with a lot of money and effort that will have to go into it to make a difference." 

Others are more hopeful. Hailing the ruling on his blog, Rick Hasen, an election law expert who teaches at University of California Irvine School of Law, called it a "huge victory" not only for proponents of redistricting panels, "but those who want to see election reforms done with the use of the initiative process and other tools for direct democracy."

Such reforms also include the "top-two" primary, an innovative runoff system adopted by California and other states in which all candidates run in a free-for-all primary with the the top-two finishers, regardless of party, facing each other in November. That change, also designed to favor candidates that appeal to the widest spectrum of voters, was cited as one of the election laws at risk had the Supreme Court invalidated the Arizona commission. It was mentioned in a friend-of-the-court brief filed in favor of the Arizona commission. One of the signers of that brief was former New York City Mayor Michael Bloomberg, founder of Bloomberg, L.P., the parent company of Bloomberg News and Bloomberg Media.

The ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission is a blow to the state Republicans who brought the lawsuit on the grounds that the 2000 ballot initiative that set up the commission usurped the legislature's authority under the Constitution. The Election Clause provides that the "times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof" but that Congress can change the rules.

The Supreme Court held that the referendum was a valid exercise of that authority, concluding that "there is no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking."

In a statement, the Republican leaders of Arizona's two chambers said they were "disappointed that the Supreme Court has decided to depart from the clear language of the Constitution."

But Republicans to the west in California, which also uses a voter-approved commission to draw districts were celebrating the court's ruling. Had the court ruled against Arizona, it could have empowered the Golden State's Democratic-dominated legislature to remake the congressional map in their party's favor.

"The redistricting commissions are considered the gold standard for openness and transparency. More states will move in this direction over time unless they are completely controlled by the smokey back room where the lines are drawn," said Matt Rexroad, a Republican county supervisor and strategist in Northern California.

In 2015 alone, lawmakers in at least four other states  — Massachusetts, Illinois, Florida and Tennessee—have introduced bills to create redistricting commissions, but so far none of them have reached a governor's desk.

Ornstein nevertheless said Ginsburg's majority opinion provided "a rousing support for the ability of voters to act in their interest instead of letting politicians act in their own self-interest." While he hopes it will provide "a positive jolt in the morale of reformers trying to change the process," Ornstein added, "it's not an easy thing to do."

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