Dan Morain

Once again, legislators threaten voters’ rights

An Arizona redistricting case before the U.S. Supreme Court threatens voters’ rights to approve independent redistricting commissions to draw congressional districts.
An Arizona redistricting case before the U.S. Supreme Court threatens voters’ rights to approve independent redistricting commissions to draw congressional districts. Associated Press file

There are certain truisms. Fish swim. Dogs eat garbage if they get the opportunity. Legislators gerrymander.

They also will fight any attempt by voters to limit their power and make the political system fairer.

Understanding that self-interested lawmakers draw district boundaries to protect themselves by excluding or including blocks of voters, the Arizona electorate in 2000 created an independent redistricting commission to draw congressional boundaries. Californians did the same in 2010, overwhelmingly approving Proposition 20.

The Republican-controlled Arizona Legislature has sued to unravel that state’s independent redistricting commission. The U.S. Supreme Court will hear arguments on the case in March. It doesn’t bode well for direct democracy in Arizona, or in any other state that has the power of initiative.

The National Conference of State Legislatures has joined with the Arizona Legislature, filing a brief urging that the justices return to legislators the power that, in the conference’s view, is rightfully theirs.

“The principle that redistricting is primarily the province of state legislatures is so fundamental that courts defer to legislative determinations regarding districting whenever possible,” the conference’s brief says.

The California Legislature is not involved in the case. However, the Office of Legislative Counsel, the Legislature’s attorney, will pay $400,000 in your money and mine to the conference this year.

Given the size of that payment, perhaps the conference might have thought to check with California legislators to see if they minded that the organization was trying to undermine California voters.

Susan Parnas Frederick, senior federal affairs counsel for the conference, said the organization did consult with legislators before proceeding, but not ones from California.

If the conference had checked, it might have learned that California Attorney General Kamala Harris, to her credit, was preparing to join with a dozen other states by filing a brief before the high court defending our right to create independent commissions that draw congressional districts.

Most of the 13 states are blue, though Mississippi and Idaho joined; they too have redistricting commissions.

“It is about voting rights,” Harris told me last week after she signed off on the brief written by Washington state Attorney General Robert W. Ferguson. “States have the power to use initiatives and referenda that govern elections. It is a national issue.”

Too often, legislatures draw lines in ways that “disenfranchise voters,” Harris said. They are “diluting the power of any one constituency by cutting up jurisdictions and doing it for political reasons.”

The brief that Harris signed notes that while other state redistricting commissions differ from Arizona’s, “the Arizona Legislature’s arguments threaten them all.”

“The people of these states perceived a number of benefits from adopting redistricting commissions,” the 13 states’ brief says. “For one, the people of these states have found their redistricting commissions less likely than state legislators to engage in gerrymandering to protect incumbents or to manipulate the redistricting process for partisan gain.”

Think of Austin, one of the few Democratic bastions in Texas. Lawmakers in that state have carved up the city and its environs in such a way that four Republicans and only one Democrat represent slices of Austin in Congress.

Henry Waxman and Howard Berman were best of friends and closet of allies in Congress and, earlier, in the California Legislature. They dominated West Los Angeles politics for four decades.

They were assured of being re-elected for life, so long as their district boundaries were drawn by legislators, who were guided by the rumpled and brilliant consultant, Michael Berman, Howard’s brother.

Not surprisingly, Waxman and Berman were among the strongest opponents of Proposition 20, the 2010 initiative that granted the California Independent Redistricting Commission the power to draw congressional lines.

With the commission in charge of the lines, Berman’s district shifted, and Rep. Brad Sherman defeated him in 2012. Waxman, also running in unfamiliar turf, survived a challenge from a wealthy independent, William Bloomfield Jr., but didn’t seek another term in 2014.

As he prepared to leave office in November, Waxman surprised me by telling me that he thought the commission “did a very good job.”

“It was fair. It was nonpartisan. It reflected a genuine effort to create districts that were reasonable,” Waxman said. “I would like to see every state adopt a plan like that. It would take a lot of the politics out of it.”

So long as legislatures draw lines, Waxman said, incumbents will win.

“The problem I saw with this redistricting commission was that California was put at a disadvantage,” Waxman said. “There was no regard for California’s influence in Congress, because there was no regard for partisanship. … Other states were protecting their powerful, influential incumbents.”

As is the case with any issue that winds up before the U.S. Supreme Court, the legal question is complex. It raises questions about what the founders thought or didn’t think when they approved the Elections Clause of the U.S. Constitution, and how far you and I can go when legislatures let us down.

Arizona’s defenders include the Coolidge Reagan Foundation, a conservative nonprofit group based in Washington, D.C. Coolidge Reagan, which filed a friend of the court brief on Arizona’s side, has defended voter identification laws and sued to unravel federal campaign finance laws.

The foundation’s chairman, Shaun McCutcheon, is the Republican businessman from Alabama whose name is atop a 5-4 U.S. Supreme Court decision striking down cumulative limits on donations to federal candidates, parties and political action committees.

“I’m not opposed to initiatives in any way shape or form,” said Dan Backer, a Virginia attorney who represented McCutcheon and founded the group named for Calvin Coolidge and Ronald Reagan. “But I don’t think you can ignore the Constitution. The Constitution clearly delegates the power to the legislatures.”

Complicated though the legalities may be, the politics are clear. If the high court limits the ability of voters to approve independent redistricting commissions, legislators will reassert themselves. It’s in their nature.

In California, where Democrats are in control, legislators will make sure Democrats gain more congressional seats. In Arizona, where Republicans control state government, legislators will carve out more Republican seats. Either way, voters would lose.

Follow Dan Morain on Twitter @danielmorain.

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