Let Voters Attack Gerrymandering

Their vote, their right.

Photographer: Jonathan Gibby/Getty Images

It’s hard not to be cynical about politics when legislators pick their voters before voters pick their legislators. Arizona has devised a creative way to address this problem -- and it should be allowed to proceed.

On Monday, the U.S. Supreme Court will hear arguments in a case brought by the Arizona legislature against the Arizona Independent Redistricting Commission. On one level, the case is about gerrymandering, the practice by which state legislators draw their own districts to maximize their chances of re-election. On another level, however, the case is about how much deference elected officials owe the public.

On both levels, it's not a difficult call. Rarely -- if ever -- has the court curtailed rights that have been expressly granted to voters by a state legislature. It shouldn’t start now.

In Arizona, voters gathered enough signatures to put a proposal on the ballot in 2000 that turned the job of drawing legislative districts over to a five-member commission mostly appointed by the legislature. Six other states have adopted similarly independent redistricting commissions, including California, where the law -- passed by voters in 2010 -- has been credited with helping to shake up a dysfunctional state government.

Gerrymandering is not new -- the term dates to 1812 -- but technology has brought the practice to new levels of absurdity. As gerrymandering has grown more sophisticated, elections have become less competitive and partisan differences more entrenched. Reining in gerrymandering wouldn’t end these problems, but it would help.

At any rate, in Arizona members of the legislature didn’t care for the commission’s maps, so they sued. Their argument rests on a clause in the U.S. Constitution that states: “The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

Sounds clear enough, but context can be everything. The following sentence grants Congress the power to set or override state election laws, because the Founders feared that some recalcitrant states would not send representatives to Congress, denying the people the right to exercise their authority. The idea that voters have “usurped” a power that was included in the Constitution to protect them makes no sense.

In addition, briefs submitted by the law's defenders argue convincingly that when the Constitution was written, “legislature” was understood to mean the people or the state generally, not an elected body. That interpretation is not novel: The Supreme Court effectively affirmed it in a 1916 case upholding the right of voters to veto a districting law passed by the legislature.

If the court overturns that precedent, any election law established by initiative could become void, and the initiative process -- which helped open the ballot to women in Arizona and has been used to advance all types of election laws around the country, from party primaries to voter identification requirements -- would be severely restricted.

It's in the very language the Arizona legislature cites in support of its argument: How states run their elections is up to the states. If a state wants to limit its initiative process so it excludes election laws, it is certainly free to do so. But if a democratically elected body confers power upon the people to exercise lawmaking authority, the court has no business taking it away.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.