Posted by Harry Kresky on July 01, 2015 at 2:51 PM
Legal Corner: What the SCOTUS decision on redistricting in Arizona means for America's voters
The ruling issued by the Supreme Court on June 29th, rejecting a challenge to a Redistricting Commission implemented by the people of Arizona through the initiative and referendum process (“I&R”), is a positive example of our highest court exercising political leadership.
The challenge, brought by the State’s Legislature, was based on language in Article I, Section 4 of the U.S. Constitution, which states, inter alia:
″[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”
Its argument rested on the use of the words “by the Legislature thereof,” which the Legislators contended meant that body only and did not allow legislation by I&R. In a 5-4 decision written by Justice Ruth Bader Ginsburg, the Supreme Court ruled that the term “Legislature” did not mean the specific representative body in Arizona and other states, but, rather the exercise of legislative power under the State’s system of government, which, in Arizona, includes the use of I&R. In his lengthy dissent, Chief Justice Roberts said the word Legislature should be read to mean the specific legislative body elected by the citizens of AZ.
Justice Ginsburg, writing for the Court’s majority, stated:
“The importance of direct democracy as a means to control election regulations extends beyond the particular statutes and constitutional provisions installed by the people rather than the States’ legislatures. The very prospect of lawmaking by the people may influence the legislature when it considers (or fails to consider) election related measures. See, Persily and Anderson, Regulating Democracy Through Democracy: The Use of Direct Legislation in Election Law Reform, 78 S. Cal L. Rev. 997, 1006-1008 (2005) (describing cases in which ‘indirect pressure of the initiative process … was sufficient to spur [state] legislative action’) Turning the coin, the legislature’s responsiveness to the people its members represent is hardly heightened when the representative body can be confident that what it does will not be overturned or modified by the voters themselves.”
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“The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to insure that Members of Congress would have an ‘habitual recollection of their dependence on the people.’ The Federalist No. 57 at 350 (J. Madison). 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.’ Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elections Clause does not hinder that endeavor.”
(decision, pp. 34-35)
The majority, which included the Court’s liberal bloc (usually identified as Democrats) was speaking, in part, to Democratic party leaders, reminding them that democracy through I&R, something the Democratic Party has viewed with suspicion, may be used to increase its clout in states like Arizona where Republicans control both the legislature and the governorship, and have been able to insure Congressional delegations that are more heavily Republican than the makeup of the electorate.
Critics of the Court over the years have questioned whether weighing in on “political” issues is acting contrary to democratic principles. The controversial 1973 decision recognizing a women’s right to abort an unwanted pregnancy (Roe v. Wade) provoked criticism on those grounds. At other times when a court has taken a controversial stand it turned out to be giving expression to a substantial majority of Americans. The Supreme Court of Massachusetts 2003 ruling in favor of gay marriage was one such instance.
The beauty of the U.S. Supreme Court’s decision in upholding the Arizona Redistricting Commission is that it leads by supporting the democratic process itself.