Justices seem skeptical of independent electoral map boards in several states

By Mark Sherman
Associated Press

WASHINGTON (AP) - The Supreme Court, unwilling to limit partisan influence in redistricting in earlier cases, now seems poised to stop states that have tried to take matters into their own hands by removing map-drawing power from elected lawmakers.

The justices heard arguments Monday in a challenge to Arizona's independent redistricting commission's drawing of U.S. House seats in a case that could also affect a dozen other states, including California.

The big issue before the court is whether voters can take away the power given by the U.S. Constitution to elected state legislatures to decide how members of the U.S. House are elected.

The court's conservative justices indicated that they think the answer is no. And some liberal justices also seemed troubled by arguments put forth by lawyers for the Obama administration and the Arizona commission.

Justice Anthony Kennedy, whose vote often controls closely fought cases, recounted what led to the change in the Constitution that provided for direct election of U.S. senators, who previously had been chosen by legislatures. "It seems to me that history works very much against you," Kennedy told commission lawyer Seth Waxman.

Paul Clement, representing Arizona's Republican-dominated legislature, said the constitutional provision at issue in Monday's case means "you can't completely cut out of the process the state legislature on a permanent basis."

That's what Arizona voters did in 2000 when they adopted an independent commission. The legislature's Republican leaders filed their lawsuit after the commission's U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won them all in 2012, but the Republicans recaptured one last year.

States are required to re-draw maps for congressional and state legislative districts to account for population changes after the once-a-decade census.

The justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.

Republicans employed an enormously successful strategy to take advantage of the 2010 census, first by winning state legislatures and then using that control to draw House districts to maximize their power. One measure of their success: In 2012, Republicans achieved a 33-seat majority in the House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents.

Independent commissions such as Arizona's "may be the only meaningful check" left to states that want to foster more competitive elections, the Obama administration said.

The argument against independent commissions rests in the Constitution's Election Clause, which gives state legislatures the power to set "the times, places and manners of holding elections for senators and representatives."

Waxman tried to persuade the court that the word "legislature" includes not just elected lawmakers, but also the voters who amended the state Constitution to create the redistricting commission.

Justice Antonin Scalia challenged Waxman: "Give me one provision of the Constitution that uses the term 'legislature' that clearly was not meant to apply to the body of representatives of the people that makes the laws." Waxman could cite only the words at issue in the case.

Only Arizona and California essentially remove the legislature from the process, the National Conference of State Legislatures said in support of the Republican lawmakers. Lawmakers' only contribution in those states is picking commission members from a list devised by others. In the other states - Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Jersey, New York, Ohio and Washington - lawmakers have more input.

While Republicans presumably would benefit if the court strikes down the commission, Democrats who dominate politics next door in California could pick up seats in their 53-member House delegation, the nation's largest.

Clement tried to make the case that a more partisan outcome is not a certainty, because the court's decision would not affect the independent commission's work on state legislative districts. "And, of course, that means that if these commissions are as effective as my friends on the other side say, then we will have nonpartisan districts that will elect ... the state representatives and the state senate, and then those nonpartisanly gerrymandered, perfectly representative bodies will be the ones to take care of congressional districting," Clement said.

A decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, 13-1314, is expected before July.

Published: Wed, Mar 04, 2015