Citizens redistricting panels survive test

People enter the Supreme Court on Monday before it met for the final time until October.
People enter the Supreme Court on Monday before it met for the final time until October. The Associated Press

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.

There is much debate about whether justices should take into account the real world consequences of their decisions; it appears that Ginsburg’s opinion is crafted with an eye toward the fallout that could have occurred from a contrary decision. Lawmakers often draw lines that allow incumbents to keep their jobs and members of their party to obtain power, instead of lines that best serve current and potential constituents. Citizens redistricting commissions, designed to avoid such self-dealing, are now here to stay.

But the ruling is also legally defensible. A decision that “Legislature” means only elected state lawmakers, and not also citizens when acting like lawmakers, would have been unduly narrow.

The constitutional provision at issue was written before states started to implement direct democracy, including the initiative, the referendum and the recall. Hence the framers did not opt to purposefully exclude the citizens, when they act in a legislative role, from those who could prescribe the times, places and manners of federal elections.

For now, the Supreme Court has kept intact one of our more successful political experiments – the independent redistricting commission. But do not breathe a sigh of relief.

Next term the court will hear a case that challenges the very meaning of representation. It has long been understood that state and congressional district lines are drawn so that each district has the same number of people, not the same number of voters. The idea is that lawmakers should represent and be responsive to all of their constituents, not just those who can vote.

Backed by the same people who recently challenged affirmative action provisions, plaintiffs are challenging that idea. A decision that local and state district lines must be drawn according to the number of voters – not the number of people – would move power away from urban areas and younger, more diverse, more liberal voters to rural areas and older, whiter, more conservative voters.

That would create a political earthquake even larger than the one that was avoided Monday.

Jessica A. Levinson is a professor at Loyola Law School, Los Angeles. She blogs at Follow her on Twitter @LevinsonJessica.