One can read too much into questions and comments from appellate judges during oral arguments, but with that caveat, it appears that the U.S. Supreme Court is poised to erase the redrawing of congressional districts by independent commissions created by voters through the initiative process.
If it happens, it would presumably strike that power from California’s redistricting commission, and could lead to other outcomes, such as invalidating the state’s top-two primary system in congressional and U.S. Senate elections.
A majority of the nine justices made sympathetic noises Monday when attorneys for the Republican-controlled Arizona Legislature argued that the U.S. Constitution gives states and “the legislatures therein” the exclusive power to set congressional and senatorial election rules.
California, like Arizona, has an independent commission, created by initiative ballot measure, that redraws legislative and congressional districts after every decennial census to equalize their populations.
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The Arizona Legislature challenged the commission’s constitutionality, citing the elections clause of the U.S. Constitution, but it lost in a federal appellate court, sending the case to the Supreme Court.
The issue before the court is whether “the legislatures therein” can include the initiative process, as the appellate court ruled it could.
The court’s conservative justices, including Chief Justice John Roberts, were sharply critical of that interpretation, citing the Constitution’s plain language, while its liberals were clearly sympathetic.
The case may hinge on the court’s perennial swing vote, Sacramento’s Anthony Kennedy, who is intimately acquainted with California’s political dynamics.
Judging from his comments during oral arguments, Kennedy, too, appears to be skeptical of redistricting by voter-created commission. At one point, he told the Arizona commission’s lawyer, Seth Waxman, “It seems to be that history (of defining legislative power) works very much against you.”
A decision against the Arizona commission would clearly invalidate congressional redistricting by California’s commission as well.
Moreover, since the elections clause of the Constitution applies to all election laws, it could open the door to invalidating the top-two primary system, which also was created by initiative, in congressional and senatorial elections.
It could compel the California Legislature, which is controlled by Democrats, to adopt a mid-decade congressional redistricting plan, with all sorts of political consequences, prior to next year’s elections.
A Supreme Court decision is expected by the end of June, and if it does mean drawing new maps for 2016, the Legislature would have only a few months to get them done. And who knows what would happen vis-à-vis the top-two system for 2016?
Call The Bee’s Dan Walters, (916) 321-1195. Back columns, sacbee.com/dan-walters. Follow him on Twitter @WaltersBee.