Yesterday the Supreme Court of the United States affirmed the right of the people to find creative policy solutions to fix our democracy. In a 5-4 opinion, Justice Ruth Bader Ginsburg made a forceful argument defending the right of citizens to take the power to draw congressional districts out of the hands of self-interested legislators and give it to independent citizen commissions. More broadly, the case gives citizens the green light to use ballot initiatives to address structural problems in our democracy that prevent citizens from making their voices heard.
Arizonans recognized the inherent conflict of interest that exists when elected politicians draw districts. In response, they passed Proposition 106 in 2000, stripping their legislature of the power to draw congressional and state legislative districts and giving that authority to an unbiased citizen commission consisting of two Democrats, two Republicans, and one person not affiliated with either party. Applications are screened by a nonpartisan state agency.
The Arizona State Legislature, unhappy with the competitive districts that resulted from an independent process, sued the Arizona Independent Redistricting Commission on the grounds that the U.S. Constitution’s Elections Clause only allows state legislatures to draw congressional districts. In a landmark decision, the Court affirmed a three-judge panel’s ruling in favor of the Arizona Independent Redistricting Commission and Arizona voters. This decision represents a ringing constitutional endorsement for the use of direct democracy to address the most unfair elements of our electoral system.
Here are some highlights from the decision:
The Court Once Again Recognizes that Gerrymandering is a Serious Problem
States are required to draw legislative districts after each census to ensure that they reflect the most recent population numbers available. In states where legislators draw districts, they have often manipulated elections by using redistricting to protect or threaten incumbents, champion partisan interests, or create a district they might like to run in one day. Fair representation that puts the needs of the people first is often a low or nonexistent priority.
In yesterday’s landmark win for fair representation, the Court once again recognized that gerrymandering is “incompatible with democratic principles.” The majority opinion stated that the policy solution at issue in this case – the creation of independent redistricting commissions to fight gerrymandering – “sought to restore the core principle of republican government, namely, that the voters should choose their representatives, not the other way around.” The Court added that it has not yet identified a manageable standard that can be used to strike down partisan gerrymanders through litigation but added that this was “no excuse to abandon a standard of meaningful interpretation in this area.” Their interpretation was indeed meaningful and consequential for democracy reform everywhere.
The Constitution Allows States to Find Solutions to Fix Our Democracy
In addition to Arizona, other states have implemented alternative redistricting systems that reduce the risk of political gerrymandering. In California, voters similarly went to the ballot to create a citizen commission in 2008 and added congressional districts to its mandate in 2010. In several other states, legislatures have ceded redistricting authority to citizen commissions, politician commissions with partisan balance or, in the case of Iowa, a nonpartisan legislative research bureau advised by a citizen commission.
Had the Arizona Legislature prevailed in this case, all of these public policy solutions and more would have been put at risk. Beyond redistricting, citizens have passed many election reforms by ballot initiative over the last century. These include everything from top-two primaries to the use of voting machines. A broad ruling in favor of the Legislature could have put all of these reforms at risk and prohibited the use of ballot initiatives for future reforms. Instead the Court backed continued experimentation at the state level to improve democratic institutions. As the majority points out, the Supreme Court “has long recognized the role of the States as laboratories for devising solutions to difficult legal problems.”
Sovereignty Ultimately Lies With the People
Using the Constitution to deprive the public of the power to reform democratic institutions would have turned democracy on its head. Fortunately, the Court stated that “our fundamental instrument of government derives its authority from ‘We the People.’” Using language almost identical to a statement in Common Cause’s amicus brief, the Court adds that “it would be perverse to interpret the term ‘Legislature’ in the Elections Clause so as to exclude lawmaking by the people.”
State constitutions can empower the people to reform democracy through ballot initiatives because “the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power.” Arizonans’ passage of Prop 106 to bring fairness and transparency to their redistricting process was an appropriate exercise of that authority. As the majority put it, “the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.”
Now that the Supreme Court has upheld the right of citizens to implement fair and transparent redistricting, reform efforts around the country have been reenergized. Citizens in the 19 states with a direct initiative process are empowered to take a stand against gerrymandering and other assaults on fair democratic representation. Even those in states without a ballot initiative option have the wind at their backs now that the Supreme Court has once against stated unequivocally that political gerrymandering is a problem that demands a solution. Check our national redistricting website for updates on these efforts.
Office: Common Cause National
Issues: Voting and Elections