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Supreme Court upholds Arizona's independent redistricting
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Supreme Court upholds Arizona's independent redistricting

Arizona's system of drawing congressional districts with an independent commission rather than the Legislature is constitutional, the Supreme Court ruled 5-4 Monday, rejecting a suit filed by lawmakers.

The case has a major impact on the Southern Arizona district now represented by U.S. Rep. Martha McSally.

The state's Independent Redistricting Commission was established after voters approved Proposition 106 in 2000, amending the state's Constitution to take redistricting power away from the Legislature. The move was meant to limit the ability of politicians to gerrymander their own districts.

The ruling in the Arizona case affects a dozen other states that have some form of independent input into the redistricting process, including California, with the largest congressional delegation in the nation.

The suit brought by the Legislature dealt with the IRC's drawing of congressional districts, arguing that the U.S. Constitution requires that the Legislature draw those boundaries. It did not touch on state legislative redistricting.

Justice Ruth Bader Ginsberg wrote the majority opinion, in part citing James Madison from the Federalist Papers: "The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have 'an habitual recollection of their dependence on the people.'"

"In so acting, Arizona voters sought to restore 'the core principle of republican government,' namely, 'that the voters should choose their representa­tives, not the other way around,'" Ginsburg wrote.

"Redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum," she wrote.

Chief Justice John Roberts dissented, as did Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined Ginsberg in the majority.

Roberts blasted the decision in his dissent, writing that it is a "deliberate constitutional evasion" that "has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court."

The decision keeps in place the boundaries used for the 2012 and 2014 elections, which were drawn up by the IRC.

The decision could have meant the end to the divided Southern Arizona district now represented by McSally. If it were redrawn by the Legislature to be a safer Republican district, a right-wing party challenger to the GOP freshman would have been likely.

The decision wasn't welcomed by legislative Republicans.

"It's unfortunate that the clear constitutional design has been demolished in Arizona by five lawyers at the high court," said state House Speaker David Gowan, R-Sierra Vista, and Senate President Andy Biggs, R-Gilbert.

According to political insiders, Gowan had been backing a plan for the Legislature to redraw the district map to create a Southeastern Arizona district that included fewer Democrats in Tucson, thus giving him a shot at unseating McSally in a GOP primary.

“We are disappointed that the Supreme Court has decided to depart from the clear language of the Constitution. The framers selected the elected representatives of the people to conduct congressional redistricting,” the Arizona Republicans said.

The area now covered by CD 2 is nearly evenly divided between the parties, among voters with a partisan preference, as evidenced in the many close recent elections. Following on narrow victories by former U.S. Rep. Gabrielle Giffords, the district saw two tight races between Ron Barber and McSally. Barber was sent to Congress by 2,400 votes in 2012, with McSally winning by just 167 votes in November 2014.

McSally said "I respect the Court's decision today, and look forward to continuing to represent the people of Arizona's Second District."

"I was sent to Congress with a job to do, and will continue to work tirelessly with the focus of expanding economic opportunity and improving security for Southern Arizonans," she said in a written statement Monday morning.

State Rep. Victoria Steele, who is exploring a run for the seat, said Monday that the "decision could have dramatically and fundamentally changed the electoral landscape in Arizona. "

"I am encouraged to learn of this ruling in favor of the power of the people in Arizona. We can now get on with the important business of electing our next congressional delegation," she said in a press release.

U.S. Rep. Ann Kirkpatrick, whose district extends from the Grand Canyon to Oro Valley, said Monday that she's "thrilled that the will of Arizona voters was affirmed today in our nation’s highest court."

"In 2000, when voters created the independent redistricting commission, their goal was to give power back to the people and end the back-room deals by a handful of politicians," Kirkpatrick said in a press release. "Today's ruling protects that goal and closes the door once and for all on the back-room dealmakers and their power grabs."

"We are thrilled with the court's decision," said Colleen Coyle Mathis, the chair of the IRC. "Arizona voters decided that they wanted an independent citizen commission, rather than the Legislature, to be responsible for both congressional and legislative redistricting when they passed Proposition 106 in 2000. This is a victory not only for the people of Arizona, but for the entire country."

Because each state's number of representatives in Congress is reapportioned every 10 years based on the U.S. Census, states redraw their electoral boundaries to reflect any changes. 

Only California and Arizona have independent bodies that control the redistricting process. In the other states, the legislature has varying levels of input into drawing new election maps: Connecticut, Hawaii, Idaho, Indiana, Iowa, Maine, Montana, New Jersey, New York, Ohio and Washington.

Arizona's commission, overwhelmingly approved by voters, has five members: two chosen by Republican lawmakers and two by legislative Democrats. The independent chair is picked by the four others.

"We resist reading the Elections Clause to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process. Nothing in that Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’' constitution," the decision read.

"The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation," Ginsberg wrote.

From the decision:

The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. As Madison put it: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people but that those intrusted with it should be kept in dependence on the people.”

The people’s ultimate sovereignty had been expressed by John Locke in 1690, a near century before the Constitution’s
formation:

“[T]he Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supream Power to remove or alter the Legislative,when they find the Legislative act contrary to the trust reposed in them. For all Power given with trust for the attaining an end, being limited by that end,whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the Power devolve into the hands of those that gave it,who may place it anew where they shall think best for their safety and security.” Two Treatises of Government

Our Declaration of Independence, ¶2, drew from Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 540–541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,” Art. I, §2. See Cain, 121 Yale L. J., at 1817.

In a second dissent, Scalia, joined by Thomas, said he would have dismissed the case because the Legislature lacked legal standing to file suit.

"Normally, having arrived at that conclusion, I would express no opinion on the merits," Scalia wrote. "In the present case, however, the majority's resolution of the merits question ('legislature' means 'the people') is so outrageously wrong, so utterly devoid of textual or historic support, so flatly in contradiction of prior Supreme Court cases, so obviously the willful product of hostility to districting by state legislatures, that I cannot avoid adding my vote to the devastating dissent of the chief justice."

But Ginsberg and the majority approved of what they called "an endeavor by Arizona voters to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power."

"The animating principle of our Constitution is that the people themselves are the originating source of all the powers of government," Ginsberg wrote.

Voting-rights groups hailed the decision, which they said would be felt in any state where voters can petition issues to the ballot.

“Not only is it a victory for retaining this nonpartisan independent redistricting body, but it also strategically is an important victory for legislating through the ballot box,” said Sam Wercinski, executive director for the Arizona Advocacy Network.

Had the court ruled otherwise, Wercinski said, it could have put at risk all other citizen-passed laws. He criticized the Republican-dominated Legislature for filing the challenge in the first place.

“I think it’s unfortunate that every year we see a Republican majority backed by big-money special interests challenging laws that have been passed by the voters of Arizona,” Wercinski said.

Common Cause President Miles Rapoport said Monday’s decision affirms Abraham Lincoln’s declaration that “ours is a government of, by and for the people.”

“Now that our highest court has given their initiative its blessing, we’re hopeful that citizens and legislators alike in other states will push politics aside and create independent bodies to draw truly representative districts after the 2020 Census,” Rapoport said.

Kathay Feng, national redistricting director for Common Cause, said the group will be working “across the country to end political gerrymandering through the creation of citizen-driven commissions like the one in Arizona.”

Cronkite News reporter Soyenixe Lopez contributed to this story.


“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.”

— U.S. Constitution, Article 1, Section 4

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