Now, the Supreme Court may decide for or against a new way to challenge partisan gerrymandering. Yesterday, the Justices added to their docket for decision in the new term a major constitutional dispute from Arizona. It focuses on whether the primary task of redistricting a state’s seats in the U.S. House of Representatives can be taken away from the legislature, and handed to a non-partisan commission.
Arizona’s voters did that 14 years ago, passing “Proposition 106” that amended the state constitution to set up a five-member Independent Redistricting Commission. The legislature is not cut totally out of the process; its leaders get to choose, between the two major parties, four of the members, and the members then choose the fifth, as chairman. But the commissioners can be chosen only from a list that a neutral state appointing agency provides.
The legislature can send some ideas to the commission about district lines, but the commission has no duty to accept them.
Two provisions of federal law – the Elections Clause in Article I, and a federal statute that says the drawing of district lines for elections to the House must be done “in the manner provided by [state] law” – are involved. The Elections Clause gives the legislature in a state the power to designate the “times, places and manners” of electing House members. The statute seems to leave it to the state to decide “the manner” of redistricting.
In a lawsuit challenging the 2012 maps drawn by the independent Arizona commission, the state legislature insisted that only it qualifies as “the legislature” and thus the redistricting task belongs to it, constitutionally and according to the federal law. A federal District Court rejected that argument, saying the Supreme Court had long ago ruled that the concept of a “legislature” can be broader than the elected members of the official legislative body.
The legislature took the case on to the Supreme Court, asking the single question of whether taking away its redistricting powers violates the Elections Clause.
On Thursday, the Justices granted review, of both that question and the separate question of whether the federal law on the subject protects the legislature’s primary role. The court, however, gave itself the opportunity of bringing the case to an end without deciding either of those legal questions. It said it wanted the lawyers to debate whether the legislature had a legal right to file its lawsuit, and whether the Supreme Court has the authority to decide it.