Constitution Daily

Smart conversation from the National Constitution Center

The Supreme Court to look behind the “safe seats” issue

October 3, 2014 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, explains how an Arizona case accepted by the Supreme Court on Thursday could be of deep significance to the future of redistricting across the nation.


800px-Supreme_Court_US_2010Few tasks that confront a state legislature are more jealously guarded than the power to draw new lines for election districts for their members and for their state’s members in the U.S. House of Representatives. But few actions of state legislatures may do as much to limit voters’ real choices than the use of those redistricting powers.


With a month to go before this year’s congressional election, according to the respected Rothenberg Political Report, a total of 385 of the 435 seats in the House are considered safe for the party that now holds them: 212 Republicans, 173 Democrats. Thus, the Report’s most recent calculation is that only 50 seats are actually “in play.”


Defenders of the system argue, of course, that there are many reasons why a district does not become competitive at the polls. But hardly anyone would try to argue that partisan preference, in the drafting of district maps, plays no role whatsoever in that. And, in a nation where national politics is deeply polarized along party lines, there seems little prospect that redistricting will turn away from partisan plotting.


For years, there has been a fatalistic saying among experts in redistricting that politicians now pick the voters, rather than the other way around. With census tract data available down to the most basic neighborhood – or even household – level, it is quite literally possible to draw a district by moving voters around so that the party victory being sought can be almost certainly assured. “Safe seats” are the result, much of the time.


Reformers would like to take the partisanship out of it, but up to now, the Supreme Court has been resistant. Three times, it has concluded that it is unable to develop a constitutional standard to judge how much partisanship is constitutionally too much in redistricting. The “partisan gerrymander,” in other words, has survived even rigorous testing before the court.


Now, the Supreme Court may decide for or against a new way to challenge partisan gerrymandering. Yesterday, the Justices added to their docket for decision in the new term a major constitutional dispute from Arizona. It focuses on whether the primary task of redistricting a state’s seats in the U.S. House of Representatives can be taken away from the legislature, and handed to a non-partisan commission.


Arizona’s voters did that 14 years ago, passing “Proposition 106” that amended the state constitution to set up a five-member Independent Redistricting Commission. The legislature is not cut totally out of the process; its leaders get to choose, between the two major parties, four of the members, and the members then choose the fifth, as chairman. But the commissioners can be chosen only from a list that a neutral state appointing agency provides.


The legislature can send some ideas to the commission about district lines, but the commission has no duty to accept them.


Two provisions of federal law – the Elections Clause in Article I, and a federal statute that says the drawing of district lines for elections to the House must be done “in the manner provided by [state] law” – are involved. The Elections Clause gives the legislature in a state the power to designate the “times, places and manners” of electing House members. The statute seems to leave it to the state to decide “the manner” of redistricting.


In a lawsuit challenging the 2012 maps drawn by the independent Arizona commission, the state legislature insisted that only it qualifies as “the legislature” and thus the redistricting task belongs to it, constitutionally and according to the federal law.   A federal District Court rejected that argument, saying the Supreme Court had long ago ruled that the concept of a “legislature” can be broader than the elected members of the official legislative body.


The legislature took the case on to the Supreme Court, asking the single question of whether taking away its redistricting powers violates the Elections Clause.


On Thursday, the Justices granted review, of both that question and the separate question of whether the federal law on the subject protects the legislature’s primary role.   The court, however, gave itself the opportunity of bringing the case to an end without deciding either of those legal questions. It said it wanted the lawyers to debate whether the legislature had a legal right to file its lawsuit, and whether the Supreme Court has the authority to decide it.


Those are procedural kinds of added questions, but both are also rooted in the Constitution, because Article III does not allow a court to decide a case where those who sued had no right to do so, or where a court lacks jurisdiction.


If, however, the court were to move past those barriers and confront the ultimate questions of who is the legislature, for redistricting purposes, and how that is to be decided, it might well do one of two things: encourage the reformist notion that a non-partisan body can take over the task of redistricting, or kill that idea before it spreads widely to other states.


The decision will not come before the new House of Representatives is chosen in the election on November 4. The Arizona case will not come up for a hearing at least until February, and maybe later. Constitutionally, though, it is of deep significance to the future of redistricting across the nation.


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