Congressional maps and the power of the pen

A case argued recently before the U.S. Supreme Court questioned the best way to shield voter rights from politicians’ whims. The question was, should legislators or politically appointed panels draw voting districts every decade following the census?

“This avowed effort to re-delegate that authority to an unelected and unaccountable commission is plainly repugnant to the Constitution’s vesting … of that authority in the legislatures of the states,” said attorney Paul Clement, arguing the authority for drawing districts belongs to legislators. The case is from Arizona, but it affects other states with a similar scheme.

In 2000, Arizona voters placed an independent commission in charge of drawing up the political boundaries for federal congressional districts. The idea was to stop gerrymandering and shield map-drawers from political pressure. The Elections Clause in Article I of the U.S. Constitution says, “the … manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

The meaning of the word “legislature” was the lynchpin of the argument. State lawmakers said the independent commission is not “the legislature.” But the independent commission said “legislature” meant the process of passing laws, not the building or body of elected officials.

Justice Sonia Sotomayor seemed to side with that point of view.

“If a state constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn’t that the legislative process?” she asked.

Arguing for the legislators, Clement said this situation was different.

“This is about the most extreme case that you’re going to have,” he said. “So if the Elections Clause means anything at all in terms of its delegation of this responsibility to the state legislatures, maybe we can talk about taking part of it away, but they can’t take the entire thing away on a permanent basis and give it to a commission that’s defining feature is that it’s not representative.”

Justice Anthony Kennedy pointed out a problem for the commission. Until the Constitution was amended to let voters elect senators directly, senators were chosen by the legislature. Nobody ever said anyone other than the legislature got to decide that until the 17th Amendment was adopted in 1913.

But the lawyer for the commission, Seth Waxman, replied the framers of the Constitution emphasized state sovereignty.

“No one questioned the fundamental principles that the sovereign states could choose to allocate their legislative power as they wanted,” he said. “If there had been any suggestion, the anti-federalists would have been screaming bloody murder that the states could not do so.”

Four liberal justices seemed to support the independent commission, while four conservative justices seemed to support the legislature. That leaves the swing-voter, Kennedy, as the one to watch. And he seemed to go along with the conservatives on this one. The days may be numbered for independent commissions drawing up political maps.

Listen to “Legal Docket” on The World and Everything in It.