Harris shouldn’t duck Arizona redistricting case

Kamala Harris speaks to the Sacramento Bee Editorial Board in  August.
Kamala Harris speaks to the Sacramento Bee Editorial Board in August. bnguyen@sacbee.com

Republicans expanded their control of the U.S. House of Representatives in Tuesday’s election in part because of legislators’ power to gerrymander districts to their liking, for the benefit of incumbents.

The one threat to legislators’ power to gerrymander is you. But now, voters face the prospect of losing the right to challenge politicians’ authority to shape and twist congressional boundaries to help incumbents.

The U.S. Supreme Court recently agreed to hear an Arizona case involving redistricting – that arcane, once-a-decade process dominated in most states by legislators.

More specifically, the issue is whether voters can use initiatives to establish commissions to draw congressional boundaries. Voters in Arizona and California have approved such commissions.

Attorney General Kamala Harris ought to get involved in the case, on the side of the Arizona Independent Redistricting Commission and states’ rights.

The court could decide the case on narrow grounds. But a broad pronouncement in Arizona State Legislature v. Arizona Independent Redistricting Commission almost certainly would reverberate in California.

Not that we get our news from The Daily Show, but the satirists had a point last week when they showed how the Republican-controlled Legislature carved up the weirdly liberal city of Austin so four Republicans and only one Democrat represent it.

Independent commissions don’t necessarily favor one party. But that’s the point. They are less influenced by incumbents’ clout. In Arizona, Democrats hold five of nine congressional seats. Pre-election polling suggested that Republicans could defeat two or three Democratic incumbents.

Voters in Arizona approved the redistricting commission in 2000. The congressional lines for the decade of 2001-2010 generally favored Republicans. The boundaries for this decade, however, were less clear, and the Republican-controlled Arizona Legislature sued.

The suit cites the elections clause of the U.S. Constitution, which says state legislatures have the power to prescribe “the times, places and manner of holding elections for Senators and Representatives.” The Arizona Legislature claimed that only legislators, not voters using the initiative process, have the power to draw congressional district lines.

By a 2-1 vote, a panel of Arizona district court judges ruled against the legislators, concluding that “the lawmaking power plainly includes the power to enact laws through initiative, and thus the Elections Clause permits the establishment and use of the Independent Redistricting Commission.”

The Supreme Court won’t hear arguments or rule on the case until next year. The justices dealt with initiatives recently, when they ruled on California’s same-sex marriage initiative. In that case, Justice Anthony Kennedy offered a pointed defense of direct democracy:

“The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.”

We hope Kennedy and the other justices adhere to that view.

Joseph A. Kanefield, one of the attorneys for Arizona’s Independent Redistricting Commission, said the team has asked the California attorney general to file a friend-of-the-court brief. Harris should do so, and persuade other attorneys general to join.

The Sacramento Bee’s editorial board endorsed the 2008 initiative that created California’s redistricting commission to draw legislative boundaries, and opposed the 2010 initiative that extended the commission’s power to draw congressional districts.

Voters narrowly approved the 2008 measure involving legislative districts, and overwhelmingly extended the commission’s authority in 2010 to include congressional districts. The commission crafted reasonable boundaries.

Even if the commission had erred, citizens clearly have the right to pass an initiative governing redistricting. A ruling by the Supreme Court to the contrary would severely limit voters’ power to govern themselves.