Briefs filed with the Supreme Court recite this question in the elevated language of original understanding, Madisonian theory, and the Federalist. But like many, if not most, important constitutional cases, Arizona State Legislature v. Arizona Independent Redistricting Commission is really comic-opera politics in knee britches.
In 2000, civic groups in Arizona—including the League of Women Voters, Common Cause, and the Arizona School Boards Association—joined a bipartisan group of political leaders to propose a voter initiative, Proposition 106. Approved by 56 percent of the voters, it created a new, bipartisan panel called the Independent Redistricting Commission. The commission’s job is to create new districts for the legislature and Arizona’s nine members of the U.S. House. It is not permitted to consider protection of incumbents; it is, however, under a duty to make as many districts “competitive” as possible. The legislature may not approve or disapprove the commission’s maps.
The appointment process is labyrinthine: First a commission on appointments proposes names, then officials of the legislature choose two Republicans and two Democrats to serve. These two then select an independent to serve as chair. The governor can remove a member for neglect of duty or misconduct, but otherwise, political control is nonexistent.
Despite its good-government origins, the commission broke into partisan squabbling; the chair, a political independent, often sided with the two Democrats. Governor Jan Brewer, a Republican, fired her. The state supreme court reinstated the chair, saying she hadn’t neglected or abused her office.
The Arizona Republican Party bitterly protested the commission’s 2012 maps. In the most recent legislative elections, the voters picked Republicans by a 17-13 margin in the state Senate and 36-24 in the House. In the U.S. House, the margin flipped from 5-4 Republican to 5-4 Democratic. A partisan districting plan, however, could have given the Republicans a supermajority in the statehouse and kept one or more additional House seats for the GOP.
Now the GOP-controlled legislature has sued, arguing that the Constitution doesn’t allow redistricting of a state by to any official body not controlled by “the legislature thereof.” A three-judge panel below dismissed the suit. The Court will decide, as soon as September 29, whether to affirm the three-judge court or put the case down for a full hearing. The constitutional issue is a close one; the political division underlying it is stark.
Our political system, as we all know, has degenerated into a partisan abattoir; in Congress and in many state capitals, compromise and conciliation are as out of fashion as the straw boater. One major reason is partisan gerrymandering, which produces legislators (on both sides of the aisle) who respond to no one except their wealthy funders and their partisan base. In a 2004 case called Vieth v. Jubelirer, the Supreme Court ducked the chance to put the brakes on this odious practice. Writing for four members of the Court, Scalia scoffed at the idea that partisan thimblerigging was worthy of the Court’s attention: “‘Fairness’ does not seem to us a judicially manageable standard.”