In case you missed it — and most Americans did — there was a third significant ruling by the U.S. Supreme Court at the end of June. It received the least media attention, but it may eventually affect more citizens directly than the decisions upholding Obamacare and greenlighting same-sex marriage.
The case in question weighed efforts in Arizona to reign in the gerrymandering of congressional districts. Gerrymandering is one way in our imperfect democracy that the victor claims the spoils. After every 10-year census count, legislatures are tasked with redrawing congressional districts to reflect changing demographics. But the itch to protect seats from being taken by the other party has led to ever more absurd efforts at electoral mapmaking.
The court’s 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission left in place a solution enacted by ballot initiative. That’s huge, because the justices have long been unified in acknowledging the dangers to democracy of increasingly contorted districts. What they hadn’t ruled on was what voters could legally do about it.
The decision upheld an amendment to Arizona’s constitution, enacted by a ballot measure, that takes the power of redistricting away from the legislature and entrusts it to a commission. The Arizona State Legislature sued on the grounds that the amendment violates the U.S. Constitution’s Elections Clause, which stipulates that such matters the "shall be prescribed in each State by the Legislature thereof." The majority opined on semantic grounds that "legislature" — defined as "the power that makes laws" — is a broad enough term to encompass ballot initiatives.
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The soundness of that reasoning aside, the impact may be significant. The director of the ACLU’s Voting Rights Project, Dale Ho, summed up the ruling this way: "In essence, it says voters can keep the fox from guarding the henhouse."
And that fox is a shape shifter, taking the form of Democrats or Republicans, depending on which party controls the state legislature. Clearly, gerrymandering is a political tool of both parties. It is used to strip competition from elections, which contributes to voter apathy.
It’s why so many Congressional districts, observed as maps, look like something Jackson Pollock dribbled onto a canvas.
Arizona’s solution, enacted in 2000, was to create an independent, bipartisan commission charged with redrawing congressional districts. The five members are two Democrats, two Republicans (each chosen by their party) and an independent chair who is picked by the other four members.
Not surprisingly, legislators weren’t pleased. By 2011, Republican Gov. Jan Brewer led a Senate effort to oust the chairwoman of the commission on the grounds that new proposals for how to draw districts favored Democrats. The Arizona Supreme court intervened and reinstated the commission chair.
California has a similar commission, but its works in the other political direction — keeping the Democrats from cementing control. About a dozen states have some form of a commission, with varying levels of independence from their legislatures.
A brief filed in the Arizona case by a conglomerate of organizations, including the Campaign Legal Center and the League of Women Voters, cited a 2012 study by the Brennan Center for Justice: "(I)n states where Republicans controlled the redistricting process, their candidates won roughly 53 percent of the vote but 72 percent of the seats. In states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats."
Thanks to gerrymandering, in the 2012 elections Republicans garnered 1.7 million fewer votes for congressional seats than Democrats, but they still maintained a sizable majority in the House.
Gerrymandering has helped create the gridlock in Washington. By guaranteeing safe majorities, it frees parties from the obligation to appeal to voters outside their base. That in turn tends to ensure that moderate, centrist voices are shut down at the primary level.
The Washington Post’s Christopher Ingraham has written extensively on the subject. He has pointed out that all of this is easily solvable, with a little help from technology. Algorithms could be used to draw the maps — fairly, without inserting political leverage.
For that to happen, legislators would have to agree to step away from the process. Fat chance of that.
In the meantime, the Supreme Court has at least clarified that voters do have some means of interceding on their own behalf.
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