Supreme Court authorizes unaccountable gerrymanders

Supreme Court authorizes unaccountable gerrymanders

If you are going to have gerrymandering of Congressional districts, it might as well be done by a state legislature, which is accountable to the people, rather than an “independent” commission, which is not.  Moreover, regardless of who would do a better job, the Constitution explicitly states that it’s the legislature’s job: the Constitution’s elections clause states that the “Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

But the Supreme Court on Monday ignored the language of the Constitution in its ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission. In a five-to-four decision, the Court “upheld a plan Arizona voters approved in 2000 that set up an independent commission to draw the boundaries.”  Although voters may have been fooled by the “independent” label applied to this commission, it has proven to be not truly independent, but rather a reliable ally of state Democrats, who comprise a minority of Arizona voters.  As Chief Justice John Roberts said in his dissent, the supposedly independent commission is not “‘independent’ in practice”: For example, it drew district lines in a way that gave Democratic votes more weight than Republican votes by packing more people into Republican leaning districts than Democratic leaning districts.  Although Arizona has not voted for a Democrat for president since 1996, and both of its Senators are Republicans, until recently, five of Arizona’s nine Representatives were Democrats (Senators, who are elected statewide, are thus not subject to redistricting or gerrymandering), and even today, four of the nine are Democrats. Random, non-partisan redistricting would lead to fewer Democratic Representatives in Arizona, especially given how Democratic voters tend to be more heavily concentrated in a few urban areas.

As Chief Justice Roberts noted in his dissent,

“The facts described in a recent opinion by a three-judge District Court detail the partisanship that has affected the Commission on issues ranging from staffing decisions to drawing the district lines. See Harris v. Arizona Independent Redistricting Comm’n [2014]. The per curiam opinion explained that ‘partisanship played some role in the design of the map,’ that ‘some of the commissioners were motivated in part in some of the linedrawing decisions by a desire to improve Democratic prospects in the affected districts,’ and that the Commission retained a mapping consultant that ‘had worked for Democratic, independent, and nonpartisan campaigns, but no Republican campaigns…. Judge Silver’s separate opinion noted that ‘the very structure of Arizona’s reformed redistricting process reflects that partisanship still plays a prominent role.’… Judge Wake’s separate opinion described the Commission’s ‘systematic overpopulation of Republican plurality districts and underpopulation of Democratic plurality districts’ as ‘old-fashioned partisan malapportionment’ … In his words, the ‘Commission has been coin-clipping the currency of our democracy — everyone’s equal vote — and giving all the shavings to one party, for no valid reason.'”

As liberal polling expert Nate Silver notes, gerrymandering by legislatures is not why Republicans currently control the House: “much or most of the Republican advantage in the House results from geography rather than deliberate attempts to gerrymander districts. Liberals tend to cluster in dense urban centers, creating districts in which Democrats might earn as much as 80% or 90% of the vote. In contrast, even the most conservative districts in the country tend not to give more than about 70% or 75% of their vote to Republicans. This means that Democrats have more wasted votes in the cities than Republicans do in the countryside, depriving Democrats of votes at the margin in swing districts.”

This “independent” commission is slanted in favor of the Left, because members of the commission have to be selected from “a list of 25 people compiled by a group that also selects judicial candidates.”  That group, a judicial nominating commission, has helped give Arizona one of the nation’s more liberal state judiciaries, even though the state is one of America’s more conservative states (a phenomenon typical of states that have such judicial nominating commissions. Judicial nominating commissions tend to be dominated by liberal lawyers. Since Republican governors typically have to select judges from lists of choices presented by such commissions, that results in conservative states like Kansas and Missouri having predominantly liberal judiciaries: “As the Wall Street Journal reported . . . Missouri’s nominating commission repeatedly jammed former Republican governor Matt Blunt, rigging their judicial recommendations in favor of trial lawyers” who supported the agenda of the Democrats, and effectively forcing him to select liberal judges.  Due to its judicial nominating commission, Missouri’s state judges are selected from an overwhelmingly liberal pool of nominees: “The amount of money contributed by judicial nominees was skewed 93 percent to Democrats and only 7 percent to Republicans.”)

As election-law expert Hans Von Spakovsky disapprovingly notes, the author of the majority opinion, Justice Ruth Bader Ginsburg, “spent 35-pages in essence denying that the term ‘Legislature’ really means ‘Legislature’ and talking about the ‘policy’ implications of having legislative issues and redistricting done by ‘the people’ through the initiative process and redistricting commissions. The majority claims that while redistricting is a legislative function, there is no constitutional barrier to a state’s empowerment of its people by embracing the referendum as a form of lawmaking.”

But redistricting is not being done by the “people” here, contrary to Justice Ginsburg’s claims: it is being done by an unaccountable commission that voters have no influence over (unlike the state legislature, which is accountable to voters).  The fact that the people may have voted to create this commission, in violation of the Constitution’s elections clause (which some of them now regret creating), means little.  The people cannot vote to give away democratic functions like Congressional redistricting to unaccountable bodies, anymore than they could authorize an unaccountable body to restrict free speech, or give it the legislature’s power to pass laws.

The Supreme Court has recognized this in the context of redistricting in the past.  In Lucas v. Forty-Fourth Gen. Assembly of Colorado (1964), the Supreme Court rejected the argument that an apportionment plan that resulted in legislative districts having substantially unequal populations could be upheld because the voters themselves had approved that legislative apportionment by a popular referendum.  It rejected the argument that Constitutional provisions could be waived by majority vote, and declared that “a citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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