海角大神

On Monday,聽the Supreme Court heard oral argument聽in an interesting case out of Arizona that could have profound implications for recent efforts by states to take the redistricting process out of the hands of state legislatures and make them less partisan:

The question in this case revolves around Article 1, Section 4 of the Constitution, which provides that the 鈥渢ime, place, and manner鈥� regarding elections to Congress shall be determined聽by the legislature聽of each state (emphasis added). The state legislature of Arizona, which has been joined by representatives from state legislatures around the country, contends that this means that any law regarding apportionment of congressional seats and the drawing of congressional districts must be approved by state legislatures and that the Arizona law is unconstitutional because it takes the manner of redistricting completely out of the hands of the legislature. The commission, on the other hand, essentially seems to be arguing that the Constitution鈥檚 requirement that election laws be adopted 鈥渂y the legislature鈥� is satisfied the fact that the process was approved by the state鈥檚 voters. This is an interesting and certainly inventive argument, but it strikes me as being incomplete because it fails to acknowledge the fact that the commission itself is not, in fact, a legislature of any kind since its membership is not elected by the people and is not answerable to the state legislature. On its face, then, it would seem that the state legislature has the stronger argument here, but the oral argument today makes it clear that the issue is murky in the eyes of the court, and that the court could end up ruling on this matter without actually ruling on the merits of the case.

Lyle Denniston聽notes that there appears to be a majority on the court that is at the very least skeptical of the constitutionality of Arizona鈥檚 law:

Rick Hasen聽also agrees that the Arizona law appears to be in trouble:

On the surface, making the redistricting process less partisan is something that sounds like a good idea. As we鈥檝e noted here at OTB many times in recent years, much of the gridlock and hyperpartisanship that we see in Capitol Hill today can be traced to the fact that such a large number of congressional districts on both sides of the aisle have been drawn in such as way as to protect the political interests of one party or the other, or simply to protect the interests of incumbents regardless of party. Here in Virginia, for example, congressional redistricting after the 2010 census resulted in a congressional map that essentially made every incumbent incredibly difficult to beat. While that plan has, in part, been聽tossed out by a federal court, it鈥檚 fairly clear that any future changes between now and 2020 in response to that ruling will do little to change the fact that each of Virginia鈥檚 members of Congress will, most likely, not have to worry very much about a serious challenger in the general election. The situation is much the same in many other states, and in others the process is even more blatantly partisan, which itself has led to the fact that Republicans are unlikely to lose control of the House at any point before the first elections after the 2020 Census, which won鈥檛 happen for another seven years.

Changes to the law that make the process of redistricting less partisan would, therefore, seem to be a really good idea. However, the fact that something is a good idea doesn鈥檛 mean that it is permitted under the Constitution. In this case, the Constitution quite clearly seems to give state legislatures near-exclusive control over election laws, which redistricting most certainly is. The Arizona law is problematic in this respect because it takes the legislature completely out of the process and places it in the hands of an 鈥渋ndependent鈥� commission that, creative arguments notwithstanding, cannot fairly be called a legislature of any kind. For that reason alone, it would seem that the Arizona law is unconstitutional. Theoretically at least, the scheme could be saved if the law were changed to give the legislature a role the process 鈥� perhaps by giving the commission the authority to draw district lines but requiring that the ultimate plan be approved by the legislature in an up-or-down vote 鈥� but it isn鈥檛 the Supreme Court鈥檚 role to rewrite state laws. Instead, as a majority of the Court seemed to say today, the law itself must be struck down.

It鈥檚 possible that the court will find some middle ground here, but it鈥檚 hard to see what that might be. In either case, we should expect the opinion on this one some time around the end of June along with the court鈥檚 other high profile opinions. No matter which way the court decides, though, it鈥檚 likely to have a huge impact on election laws at the state level going forward.

SCOTUSBlog has links to the pleadings in this case at their site,聽and the transcript of Monday's argument is embedded here.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.