How To Run For Congress in a District That Doesn't Exist

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Andy Tobin has an odd problem. The Arizona Republican thinks he can win a House seat in 2016 after his 2014 bid to unseat a Democratic incumbent fell just short. But as he prepares his next bid, he can't say for sure what district he'll run in, or even if, by 2016, the districts he's currently eyeing will still exist.

That's because the fate of Arizona's electoral map is currently sitting before the Supreme Court. The court will hear arguments next month in a case that pits Arizona's Republican-led legislature against a state commission that was assigned to draw its Congressional districts. The commission was created in 2000 in order to stop gerrymandering and create competitive districts, but lawmakers say that process was unconstitutional because the authority to draw districts should belong solely to the state's elected officials.

After the March arguments, the court will likely issue a ruling by the end of its term in late June. And when the ruling comes down, it has the potential to shake up the Congressional map not just in Arizona, but in a host of states (including California) that have looked outside their legislatures for help drawing the boundaries of their Congressional districts.

Here are some of the possible court rulings, as well as what they mean for Congress.

Scenario 1: Status quo. Arizona's map would remain unchanged if the court rules in favor of the commission. In that case, Republicans will still have four safe districts, Democrats will have two safe districts, and three will be toss-ups. And rather than allowing the legislature to draw lines without many regulations, it would continue to require that the commission create as many competitive districts as possible in future redistricting sessions.

That doesn't help Tobin's chances at Congress in 2016, but he would still have a reasonable chance. He lost to Democratic incumbent Ann Kirkpatrick by just 5 percentage points last cycle, and the district still leans Republican—and against President Obama.

This scenario would be the most favorable for Democrats, who would have a reasonable chance at holding five of the state's nine seats—which they did from 2012 to 2014—if they overperform and win all three swing seats. By not pushing any more Republicans into swing districts, it would give Democratic Rep. Kyrsten Sinema a likely path to reelection if she chooses not to run for Senate and would keep Republican Rep. Martha McSally on her toes.

Scenario 2: SCOTUS tosses out Arizona's system and the dominoes fall. The Supreme Court could rule that a truly independent commission like Arizona's—one that draws maps without running them past the legislatures—is unconstitutional because they cut the elected lawmakers out of the redistricting process. In that case, the Arizona legislature will redraw the map from scratch. And it's likely they'll be required to do that immediately, rather than waiting until the next redistricting year after the 2020 Census, said Justin Levitt, a professor at Loyola Law School who filed an amicus brief siding with the commission.

Tobin, who railed against the current maps while serving as speaker of the state House, said that in drawing the lines, his party wouldn't gerrymander any more than the commission did. For evidence, he points to the state's two rural districts that loop oddly around different regions. The district he ran in, for example, covers a portion of northwest Arizona, the entire northeastern portion, an area just north of Tucson in the southeast, and a small part of the southern Phoenix metro area in the center of the state.

From Democrats' perspective, this ruling would guarantee a negative outcome, because Republicans would be in charge of drawing the maps. "It's going to be bad for Democrats and bad for Arizona," said D.J. Quinlan, executive director of the state Democratic Party.

Quinlan said he would expect Republicans to try to draw six safe Republican districts instead of the current four, one "semi-competitive" district that would lean Republican, and two Democratic districts that pack as many liberal voters into Reps. Raul Grijalva's and Ruben Gallego's districts as possible.

Beyond Arizona, the court ruling would almost toss out the district boundaries of the five other states—California, Alaska, Idaho, Montana, and Washington—that have allowed independent commissions to their electoral maps, forcing those states to go back to the drawing board. Alaska and Montana each contain only one Congressional district, and Idaho has two, so the repercussions would likely be minimal. But in Washington and particularly in California, the massive maps and high numbers of representatives would set off a contentious fracas as incumbents work to protect their seats and their party's chance at gaining the upper in hand.

Scenario 3: The unlikely, but still possible, radical reorganizing. It's also possible, but not very likely, that the court throws out the congressional maps of any state that involves anyone but the state legislature—possibly including commissions, governors, and even other courts, Levitt said. That's if the court decides that when the Constitution gives the "legislature" the power to draw new maps, it literally means only the legislature and no other portion of the legislative process, he said.

In that scenario, the repercussions would be so drastic that there's not much speculation about the consequences right now.

"I think it's impossible to predict the effects," said Tim Storey, spokesman for the National Conference of State Legislatures, which filed a brief siding with the legislature. "Once you take the lid off and start from scratch, anything is possible."

Levitt believes this scenario is unlikely: He argues that in two previous cases, the court has ruled in parallel scenarios that "legislature" refers to the usual process of passing laws and doesn't exclude everyone but state lawmakers.

And, although the court's top priority is interpreting the law, it also takes into account how much political havoc its decisions can cause, Levitt said.

"If it decides against the commission, depending on how it decides, it could throw a whole lot into chaos," Levitt said. "Depending on how the court rules, if it says 'legislature means legislature, period,' most congressional districts in the country are invalid."

This article is from the archive of our partner National Journal.