Facing Our Boundary Issues

When congressional or state legislative districts are periodically redrawn, accusations of gerrymandering usually follow.

This illustration can only be used with the Molly Mirhashem piece that originally ran in the 2/14/2015 issue of National Journal magazine. (National Journal)

When congressional or state legislative districts are periodically redrawn, accusations of gerrymandering usually follow. To avoid the appearance—or the reality—of gerrymandering, six states have, over the years, adopted an unusual approach: Instead of allowing partisan state legislatures to redraw districts, Alaska, Arizona, California, Idaho, Montana, and Washington outsource the job to independent commissions.

But now that practice is facing a major challenge. Next month, the Arizona Legislature will argue before the Supreme Court that state legislatures should have the sole power to map U.S. congressional districts. If the Court buys that argument, it would overturn the results of the statewide referendum that created Arizona's independent redistricting commission in 2000. It would also strike a blow against a practice that good-government advocates have long hoped would spread to other states. (The Court's ruling would pertain only to the redrawing of U.S. congressional districts; it would not affect how state legislative districts are crafted.) (Sergio Membrillas)

Much of the case for removing state legislatures from the redistricting process is intuitive: Elected officials have a vested partisan interest in the location of district lines. "It's like the foxes guarding the henhouse," says Dan Vicuña, the national redistricting coordinator for the liberal group Common Cause.

Forestalling gerrymandering has other, less concrete benefits as well. According to Justin Levitt, a professor at Loyola Law School who studies redistricting (and who has filed a brief in support of preserving the commission in Arizona), independent commissions can lead to more accurate representations of voters' interests. That's because partisan redistricting often fragments districts so much that the people in them don't have a lot in common. "If there's a community, there's a sense of what that community might want," Levitt argues. "That isn't the case if all [the people in the district] have in common is a political affiliation."

The upcoming Supreme Court case rests on language in the Constitution that requires state legislatures to determine the boundaries of congressional districts. Article 1, Section 4 declares that the "times, places, and manner" of federal elections are regulated by state legislatures, unless Congress says otherwise.

But the Constitution's language is ambiguous, says Levitt. "The Court hasn't interpreted that language literally in cases in the past," he says. In previous instances, the "legislature" has been understood more broadly to include the governor and also referendum power.

The Coolidge Reagan Foundation, a conservative group chaired by Shaun McCutcheon of McCutcheon v. FEC fame, has filed a brief in support of the Arizona Legislature. However, the concept of independent redistricting commissions does enjoy bipartisan support. Last month, three former California GOP governors submitted a brief in support of independent redistricting. And a group of 20 members of Congress—11 Democrats and nine Republicans—has also filed a brief in support of maintaining the status quo in Arizona.

This isn't the first time Congress has waded into independent redistricting: Democratic Rep. Alan Lowenthal of California introduced a House bill last year to bring independent commissions to all states. And in 2013, Democratic then-Rep. Bruce Braley of Iowa sponsored a bill that would have given independent commissions the ability to draw district maps, with legislatures getting final approval powers. Neither effort received much support.

A ruling striking down Arizona's law could be far-reaching or it could be more limited, says Levitt. It could apply to just a handful of states, or it could affect numerous states where entities other than the legislature play a role in redistricting—for instance, states where courts have the ability to revise gerrymandered districts. If "the Court sides with the Arizona commission, states generally have all the options on the table," Levitt explains. "If the Court sides with the Arizona Legislature, depending on how they rule, it could affect a few states or the vast majority of them."

Levitt emphasizes that there isn't a one-size-fits-all commission that would serve all states' needs. Still, the benefits of somehow limiting the gerrymandering power of elected officials are undeniable. The question now is whether the Supreme Court will allow this practice to continue.