Supreme Court Weighs Overturning Dozens of Congressional Districts

The fate of a favorite anti-gerrymandering tool sat before the high court Monday, and the panel's conservative justices seemed wholly unimpressed.

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC. (National Journal)

The fate of congressional districts and elections around the country may hang on how the Supreme Court defines "legislature"—an argument that came to a head Monday in a clash between the Supreme Court's liberal and conservative wings.

At issue is whether Arizona violated the U.S. Constitution when voters stripped the state Legislature of the power to draw congressional districts, instead handing that authority to an independent commission. The move was intended to reduce gerrymandering, but it has been mired in legal controversy since the commission started its work after the last census.

And now, if the Court rules that the law doesn't past constitutional muster, it would likely not only invalidate Arizona's districts, but also those of a handful of other states—including California—that have also put redistricting authority in the hands of independent commissions.

In oral arguments Monday, attorneys for the state Legislature and the commission sparred over whether Arizona's system was in keeping with a provision of the Constitution that says state election procedures "shall be prescribed in each State by the Legislature thereof."

The commission's attorneys are arguing for a broad definition, saying that "legislature" refers generally to the powers that make laws in a state. "Arizona defines its Legislature in its constitution to include both the people and two representative bodies," said Seth Waxman, a solicitor general under President Clinton and the commission's counsel of record.

But several of the Court's conservative justices appeared deeply skeptical of the argument. Justice Antonin Scalia pointed out that at the time of the Constitution's drafting, "there was no such thing" as a ballot measure and that the Framers could not have intended for that to be an avenue for making election procedure.

Chief Justice John Roberts asked Waxman to explain why the Constitution would say "legislature," as opposed to "the state," if the Framers intended for someone other than state representatives and senators to set redistricting and other election procedures.

Meanwhile, the Supreme Court's liberal justices aggressively questioned the Arizona Legislature's counsel, Paul Clement—himself a former solicitor general under President George W. Bush.

Justice Sonia Sotomayor said previous opinions defined "legislature" to mean "legislative process." And Elena Kagan, the newest member of the Court, asked Clement why other election laws established by ballot measure (such as Oregon's vote-by-mail system), had not previously been rendered unconstitutional in other cases by his argument.

Clement responded that in Arizona, voters had specifically stripped the state Legislature of a constitutionally provided power and given it to another body. "It's not that nobody but the Legislature can ever do anything," Clement said in response to one question. But the Arizona ballot measure "purposely divests the state Legislature" of authority the Constitution "clearly vests" in it, Clement said in his opening statement.

The Arizona system landed in court after Republicans were furious with the state's new maps, which resulted in Democrats holding five of the state's nine congressional districts following the 2012 elections. State Republicans initially tried to remove the chair of the commission from her post before a state court reversed that action.

Although the case originated in Arizona, it could affect California most of all. The country's biggest state voted to establish its own independent redistricting commission in 2008 and 2010 after decades of insider-controlled map-drawing that resulted in few congressional or state legislative districts ever changing hands. Washington and a handful of other states also have independent commissions involved in their redistricting processes.