Redistricting and the Supreme Court: Be careful what you wish for

House Minority Leader Nancy Pelosi of San Francisco, front center in purple, gestures as she poses with the Democratic women of the 114th House of Representatives on Jan. 7 on the steps of the Capitol in Washington.
House Minority Leader Nancy Pelosi of San Francisco, front center in purple, gestures as she poses with the Democratic women of the 114th House of Representatives on Jan. 7 on the steps of the Capitol in Washington. The Associated Press

A U.S. Supreme Court case could easily upend congressional politics in California; it also could help Nancy Pelosi and Democrats win back the House.

In 2010, Californians voted to give the Citizens Redistricting Commission the power to draw congressional district lines in the 2011 redistricting.

No one at the time thought its actions were unconstitutional, but they are under assault now. California’s commission was structured much like the Arizona redistricting commission, created by that state’s voters in 2000.

But the Arizona redistricting has been fraught with partisan disagreements. Arizona Democrats fought the commission’s 2001 plan with a decade of lawsuits; Republicans hated the 2011 plan. Following its adoption, the GOP-controlled Legislature sued to have it tossed out.

Its argument is that the Constitution clearly gives legislatures the power to set the “time, places and manner of holding elections” for members of Congress, which means only legislatures can do congressional redistricting.

When Arizona lawmakers filed their lawsuit, most people thought it was a long shot, and a three-judge federal appeals court panel threw it out.

Then, to the surprise of the people like me who pay attention to such matters, the Supreme Court took up the case. If the high court rules against the Arizona redistricting commission, it will by implication throw out the California commission’s power to draw congressional districts.

That is exactly what is encouraged by the National Conference of State Legislatures. In its amicus brief, the conference points out that while 13 states have a redistricting commission, in 11 of those states, the legislature plays a role in the process.

For instance, in Hawaii, Idaho, Montana, New Jersey and Washington state, legislators select a majority of commissioners.

However, in Arizona and California, the legislatures are entirely excluded from the process, and this, the conference argues, violates the “time, places and manner” language of the Constitution.

Lawsuit opponents claim that the people’s power in states like California and Arizona that have the initiative is equivalent to that of the legislature.

The California Redistricting Commission and others argue that the people have the right to establish an independent redistricting body to counter the nefarious practice of partisan gerrymandering. But there is a problem.

The federal courts, including the Supreme Court, often overturn popular votes; most recently Proposition 8, the anti-gay marriage initiative. It seems the people’s will carries less weight when courts don’t like what the people did.

Even more threatening for the California commission is the Supreme Court’s ruling in 2000 on our initial attempts to set up an open primary. In 1996, voters enacted Proposition 198 to open California primaries to all voters, but the Supreme Court threw it out on the grounds that it violated the rights of political parties.

The author of that opinion was none other than Justice Antonin Scalia, who is a stickler for what he calls the “original” intent of the constitution’s framers. An originalist reading of this case suggests that congressional redistricting not done by a legislature could indeed be unconstitutional.

Since the court agreed to hear this case, there must have been at least four justices who wanted to examine the issue. Count on Scalia and whoever else he can round up to vote to toss the Arizona and California redistricting commissions.

What would happen then? Forget the constitutional niceties; this is all about political power.

In Arizona, the GOP-controlled Legislature would probably draw a plan that gives Republicans an additional seat or two. But Arizona has only nine congressional districts, and Republicans already hold five of them, so the gains will be very small.

In California, the opposite is true. Wouldn’t the Democratic Legislature love to get its hands on the congressional map with its 53 districts?

Republicans are near bottom in congressional districts now, but a Democratic gerrymander could add several more Democratic seats.

Latino activists encouraged the California Commission to create an additional Democratic Latino seat in the Central Valley by putting GOP Reps. Devin Nunes, R-Tulare, and Kevin McCarthy, R-Bakersfield, into one district.

This would be easy to do. With Senate President Pro Tem Kevin de Léon, D-Los Angeles, in charge, count on legislative Democrats to gut the GOP-held seats in the name of more Latino districts.

It is no surprise that former GOP governors George Deukmejian, Pete Wilson and Arnold Schwarzenegger filed an amicus brief defending the California Independent Redistricting Commission.

Constitutional interpretations aside, the real purpose of this brief is partisan, to remind “the decider,” fellow Californian and Ronald Reagan appointee Justice Anthony Kennedy, of the sordid history of redistricting in California and the number of times the Republicans were big losers.

The Deukmejian-Wilson-Schwarzenegger brief is an attempt to tell Kennedy that if he goes with Scalia and the others, California Republicans could pay the price.

Conservative groups have championed this lawsuit. GOP super-lawyer Paul Clement will be arguing on behalf of the Arizona Legislature before the Supreme Court. It would be ironic if he wins. Then, California Democrats could slice up GOP congressional districts. This is a classic case of don’t ask for something, you might actually get it.

Tony Quinn was on the California Legislature’s redistricting staff in the 1970s and 1980s and has written extensively on the topic.