Jus­tices up­hold use of pan­els for redistricting

Los Angeles Times - - CALIFORNIA - By David G. Sav­age

WASHINGTON — Po­lit­i­cal re­form­ers in Cal­i­for­nia and Ari­zona — and the vot­ers who sup­ported them — won a big round at the Supreme Court on Mon­day when the jus­tices up­held the use of in­de­pen­dent com­mis­sions to draw elec­tion dis­tricts for mem­bers of Congress.

In a 5- 4 de­ci­sion, the jus­tices said the Con­sti­tu­tion did not pre­vent states from tak­ing this power away from elected politi­cians and lodg­ing it in the hands of a non­par­ti­san board.

The goal is to pre­vent par­ti­san ger­ry­man­der­ing, where law­mak­ers draw safe seats for their friends and al­lies. Ari­zona’s Repub­li­can Leg­is­la­ture had gone to court to chal­lenge the de­ci­sion of their vot­ers.

Jus­tice Ruth Bader Gins­burg said the Con­sti­tu­tion gives states broad lee­way to de­cide on their elec­tion rules, and states like Ari­zona and Cal­i­for­nia may rely on “di­rect democ­racy,” which al­lows the vot­ers to de­cide.

“There’s no con­sti­tu­tional bar­rier to a state’s em­pow­er­ment of its peo­ple,” she said in the court­room. “The peo­ple of Ari­zona turned to the ini­tia­tive to curb the prac­tice of ger­ry­man­der­ing,” she said, and noth­ing in the Con­sti­tu­tion for­bids them from mak­ing that de­ci­sion.

The four most con­ser­va­tives jus­tices dis­sented.

Chief Jus­tice John G. Roberts Jr. ac­cused the ma-

jor­ity of per­form­ing a “magic trick” by in­ter­pret­ing the Con­sti­tu­tion to al­low the peo­ple, not the Leg­is­la­ture, to set the rules for elect­ing mem­bers of Congress.

He agreed with Ari­zona’s Repub­li­can Leg­is­la­ture that it should have the ex­clu­sive power to de­cide on dis­tricts for mem­bers of Congress. Jus­tices An­tonin Scalia, Clarence Thomas and Sa­muel A. Al­ito Jr. agreed.

The de­ci­sion turned on a some­what ob­scure pro­vi­sion in the Con­sti­tu­tion. It says: “The times, places and man­ners 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.”

Ari­zona’s vot­ers passed a state con­sti­tu­tional amend­ment in 2000 to re­move the redistricting au­thor­ity from the state Leg­is­la­ture and to turn it over to a new Ari­zona In­de­pen­dent Redistricting Com­mis­sion.

Three years ago, Ari­zona’s Repub­li­can law­mak­ers sued in fed­eral court seek­ing to over­turn the amend­ment, say­ing the Con­sti­tu­tion re­served this power to “the Leg­is­la­ture thereof,” and this au­thor­ity may not be taken away.

De­fend­ers of the com­mis­sion ar­gued the state’s law­mak­ing au­thor­ity can rest with the peo­ple when they pass propo­si­tions.

If the court had struck down the in­de­pen­dent com­mis­sions in Ari­zona State Leg­is­la­ture vs. Ari­zona In­de­pen­dent Redistricting Com­mis­sion, it would have threat­ened nu­mer­ous con­gres­sional dis­tricts in Ari­zona and Cal­i­for­nia that were drawn by non­par­ti­san citizen com­mis­sions.

In ad­di­tion, f ive other states have semi- in­de­pen­dent com­mis­sions that could have been af­fected by the rul­ing: Washington, Idaho, Mon­tana, Hawaii and New Jersey.

Richard Hasen, an elec­tion law ex­pert at UC Irvine, called the rul­ing a rejection of “mind­less lit­eral read­ing” of a con­sti­tu­tional pro­vi­sion.

The de­ci­sion is a vic­tory for re­form­ers who see in­de­pen­dent com­mis­sions as the best weapon to stop politi­cians from ma­nip­u­lat­ing elec­toral dis­trict lines to pro­tect in­cum­bents or po­lit­i­cal fief­doms. Three for­mer Cal­i­for­nia gover­nors — Pete Wil­son, Ge­orge Deuk­me­jian and Arnold Sch­warzeneg­ger — filed a friend- of- the- court brief urg­ing the jus­tices to up­hold the state’s in­de­pen­dent panel.

With 53 mem­bers, the Cal­i­for­nia del­e­ga­tion in the House of Rep­re­sen­ta­tives — 38 Democrats and 15 Repub­li­cans — is the largest in Congress.

In 2008, Cal­i­for­ni­ans ap­proved a bal­lot mea­sure to shift the redistricting power for state Leg­is­la­ture seats to a cit­i­zens com­mis­sion. Two years later, vot­ers ap­proved a sec­ond mea­sure to ex­tend its au­thor­ity to con­gres­sional dis­tricts.

Cal­i­for­nia Repub­li­can Party Chair­man Jim Brulte praised the Supreme Court rul­ing on Mon­day, say­ing that if it had gone the other way, he fully ex­pected the Demo­cratic- con­trolled Leg­is­la­ture to take full po­lit­i­cal ad­van­tage.

“It is an in­her­ent con­flict of in­ter­est for a leg­is­la­tor to draw their own leg­isla­tive dis­tricts, or con­gres­sional dis­tricts that they may run for,” Brulte said. “Redistricting is the most par­ti­san po­lit­i­cal ac­tiv­ity that a leg­isla­tive body can en­gage in, so al­low­ing a cit­i­zens com­mis­sion to draw leg­isla­tive and con­gres­sional dis­tricts makes a lot sense to me.”

Paul Mitchell, a Demo­cratic redistricting ex­pert, said the Supreme Court’s “sur­prise” rul­ing prob­a­bly spared Cal­i­for­nia from years of po­lit­i­cal up­heaval.

The de­ci­sion, in ef­fect, could of­fer sta­bil­ity to most Cal­i­for­nia con­gres­sional dis­trict bound­aries for decades, he said.

The in­de­pen­dent com­mis­sion is re­quired to re­spect com­mu­nity bound­aries and con­sider “com­mu­ni­ties of in­ter­est,” which in­clude mi­nori­ties. While some dis­tricts may change to en­sure fair rep­re­sen­ta­tion to Cal­i­for­nia’s grow­ing Latino and Asian Amer­i­can pop­u­la­tions, there won’t be whole­sale changes to bound­aries across the state.

“We won’t see mas­sive changes,” Mitchell said.

The ex­cep­tion may be in the ar­eas around four Cal­i­for­nia coun­ties — Kings, Merced, Monterey and Yuba. In 2012, the in­de­pen­dent redistricting com­mis­sion “bent over back­ward” to en­sure the new po­lit­i­cal bound­aries did not dis­crim­i­nate against mi­nori­ties in those coun­ties, which had a history of dis­crim­i­na­tion and re­quired fed­eral ap­proval be­fore chang­ing elec­tion pro­ce­dures, Mitchell said.

Some ad­vo­cates ex­pressed op­ti­mism that Mon­day’s de­ci­sion would buoy ef­forts to re­form redistricting pro­cesses in other states.

“It gives mo­men­tum to re­form­ers across the spec­trum be­cause it re­moves an am­bi­gu­ity about whether these sorts of com­mis­sions were con­sti­tu­tional,” said Michael Li, a redistricting ex­pert at the Bren­nan Cen­ter for Jus­tice.

In Ohio, for ex­am­ple, a pro­posal on the bal­lot this year would over­haul how state leg­isla­tive dis­tricts are drawn. Ac­cord­ing to Ohio State Univer­sity pro­fes­sor Ed­ward Fo­ley, some in­volved in the process were hes­i­tant to act on a con­gres­sional redistricting re­form pro­posal while the case was un­de­cided.

“It was seen as a non­starter,” Fo­ley said. Now the Supreme Court has “given a green light” to over­haul con­gres­sional redistricting, he said.

Other sup­port­ers of redistricting ques­tioned whether the rul­ing would jump- start ad­di­tional re­form ef­forts.

“Pro­po­nents of redistricting re­form have dodged a bullet, but it’s not like it gives them a great big gun of their own to use,” said Nor­man Orn­stein, a res­i­dent scholar at the Amer­i­can En­ter­prise In­sti­tute.

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