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The Supreme Court Strikes a Blow Against Partisan Gerrymandering

Sean J. Young,
Legal Director ,
ACLU of Georgia
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July 1, 2015

On Monday the United States Supreme Court issued a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, which preserved a vital weapon against partisan gerrymandering, a practice which artificially keeps the dominant political party in power regardless of popular will.

The court held that the elections clause of the Constitution, as well as a federal statute, permit the people of Arizona to use the initiative process to take the congressional redistricting process largely out of the hands of state legislators — those who benefit directly from the redistricting process — and to entrust that important process to an independent body.

As has been widely reported, the congressional redistricting process in many places has devolved into an anti-democratic procedure where politicians essentially decide who they want their voters to be. Using demographic models and projections of voting patterns calculated down to the neighborhood-level, districts can be drawn in such a way (often into odd-looking shapes) so as to virtually guarantee an electoral outcome.

Both parties are guilty of this. Thus, for instance, in 2012, in states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats. In states where Republicans controlled the process, their candidates won roughly 53 percent of the vote but 72 percent of the seats. As one politician has put it, “We are in the business of rigging elections.”

Though courts have long recognized the anti-democratic nature of partisan gerrymandering, they have thus far been reluctant or unable to stop it. So in states like Arizona and California, the people themselves have taken action. Voter-passed initiatives in both states have put redistricting into the hands of independent commissions, which are required to adhere to neutral redistricting principles, such as ensuring compactness and contiguity. Though imperfect, independent commissions have been an important weapon in the fight against partisan gerrymandering.

Arizona politicians, having been stripped of this power, sued in federal court. They argued that the United States Constitution prohibits the people from regulating the redistricting process, because it entrusted that responsibility to the state “Legislature.” This cramped interpretation was rejected by a majority of the Supreme Court, which yesterday held that the “Legislature” refers to the lawmaking power, which in states like Arizona can include lawmaking by popular will through the initiative process. In addition, the court found that Congress had permitted such redistricting by initiative in 2 U.S.C. § 2a(c), requiring congressional redistricting in accordance with enumerated criteria “until such State shall be redistricted in the manner provided by the laws thereof.”

There are three important takeaways from the court’s ruling.

First, the court confirmed that the democratic principles expressed by the Constitution are expansive enough to embrace methods of democratic participation that did not necessarily exist in 1787. As the majority recognized, “direct lawmaking by the people” was “virtually unknown when the Constitution of 1787 was drafted.” Yet by presumptively entrusting congressional elections procedures to the states’ own democratic processes, the elections clause embraced forms of state lawmaking that emerged later, such as the initiative process.

Second, a majority of the court agreed that partisan gerrymandering is “incompatible with democratic principles.” Though several justices separately recognized as much over a decade ago in Vieth v. Jubelirer, the case was a splintered decision with no commanding majority. Today’s majority confirmed that principle as a given, and they also confirmed that eradicating partisan gerrymandering is a valid democratic aim.

Third, the court reaffirmed that “We the People” remain the “font of governmental power.” The majority agreed with the amicus brief filed jointly by the ACLU and other organizations that it would be “perverse” to use the Constitution to block measures that help enshrine this principle of accountability to the People. The Constitution supports representational legitimacy and efforts to secure it.

As the majority of the court aptly summarized, “the core principle of republican government” is “that the voters should choose their representatives, not the other way around.” This decision marks a victory for democracy, and a victory for the voters.

This piece was originally posted on ACSblog.