On Monday, March 2nd, the Supreme Court heard arguments for the case Arizona Legislature v. Arizona Independent Redistricting Commission. In essence, the case involves the Arizona state legislature alleging that Arizona’s independent, nonpartisan, redistricting commission is unconstitutional, because it was created by state voters through ballot initiative in order to end a long history of gerrymandering, and is an inappropriate delegation of powers reserved for the Legislature.
ElectionLawBlog.org describes the situation aptly, saying “The question in the case arises from the Constitution’s Elections Clause, giving each state ‘legislature’ the power to set the rules for Congressional elections if Congress does not act. The key question is whether the people, acting through a state’s initiative process as lawmakers, are acting as the legislature for purpose of this clause. If not, redistricting done without the involvement of the legislature would be unconstitutional.”
The case, if decided for the legislature, could prohibit the adoption of independent redistricting commissions, a proven solution to the partisan extremism and unfair incumbent protection generated by gerrymandering. Even more than that, it could prohibit any other reform to the redistricting process through the ballot initiative, as well other electoral reforms, like National Popular vote and possibly many others, when adopted by ballot .
That’s not something we should let happen. It would be a tremendous setback should the Supreme Court rule broadly in favor of the Arizona legislature. Both independent redistricting, and the integrity of the initiative process itself, are vital to the reform movement.
In Massachusetts, we also have a long history with fair redistricting campaigns, and the ballot initiative process, that serves as a testament to the stakes of this case.
To start, Massachusettts is actually the birthplace of gerrymandering. The Boston Gazette coined the term in 1812, when MA Governor Elbridge Gerry drew a legislative district so oddly, designed to benefit his political party’s hold on power, that it actually resembled the shape of a salamander.
From there, the trend spread across the nation, becoming a favored technique for incumbent protection and securing a political party’s hold on power, as well as ensuring limited or no representation for racial minorities. The Federal Voting Rights Act eventually outlawed racial gerrymandering, but partisan gerrymandering remains legal unless a state's constitution says contrary.
In 2001, a little less than 200 years after Governor Gerry, the Massachusetts legislature was again in trouble for fixing districts to reduce minority voting power. A coalition of minority organizations in Boston sued the state and won. As part of the lawsuit, it became apparent that House Speaker Thomas Finneran was lying under oath about his role in the redistricting process. Common Cause called for an investigation, culminating in the MA House Speaker leaving office, and then being indicted and convicted of obstruction of justice.
During the lawsuit, Common Cause also called for a better way of doing redistricting—an independent redistricting commission — and we waged an aggressive campaign to pass legislation that would establish it. We also conducted a number of advisory ballot questions, all of which passed overwhelmingly, to promote the policy.
Then, in 2005, Common Cause led a petition drive to put an independent redistricting commission constitutional amendment before the legislature. We collected 60,000 validated signatures and numerous endorsements, but not enough to get the legislature to adopt the proposal (in Massachusetts, Constitutional Amendments must go through the legislature for two successive legislative sessions before reaching the ballot). But the campaign still bore fruit.
Feeling the pressure, the 2011 legislative redistricting committee took our reform agenda to heart, leading to the most open, transparent, and principled redistricting process ever seen in Massachusetts.
The Joint Committee on Redistricting released their maps with an unprecedented two-week comment period, created an informative and interactive website which gave citizens the tools to create maps, held numerous hearings attended by over 3,000 citizens and, most importantly, released maps that were more compact, preserved communities, and provided significantly better minority representation than ever before. The Center for Public Integrity ultimately gave Massachusetts redistricting process an "A" grade for openness and transparency.
We know our ballot initiative and general campaign for independent redistricting, as some committee members privately acknowledged, were a key factor in this success.
The lesson of the Massachusetts story is that not only can gerrymandering be overcome with the right tools, such as an independent redistricting commission, or even the promise of one, but that the ballot initiative is an essential tool in the voting public’s toolbox to fix and improve democracy.
In addition to this campaign, Common Cause Massachusetts has successfully used the ballot initiative process to promote the state Campaign Finance Office, the Lobbying Disclosure law, the State Ethics Commission, Legislative Rules Reform, and various campaign finance reforms. Without the ballot initiative process, none of these successes would have likely happened. When comparing states with the initiative to those without, it is clear that the states with ballot processes have generally progressed much further with reform. The ballot initiative is a critical tool for voters to hold their elected officials accountable.
If the Supreme Court rules the wrong way in the Arizona case, then new success stories like ours in Massachusetts will be much less frequent. The initiative process will take a major blow, and the pressure we have built for redistricting and some other kinds of electoral reform will fade.
That would be most unfortunate for democracy and for the voters of this country.