The next few days of commentary on the Arizona redistricting decision will include the usual debate about which side had the better of the “legal argument.”   And, in truth, both the majority opinion and the chief (Roberts) dissent can be defended.  Each is effectively drawn, making the most of the materials available to it.  Each also takes the usual liberties with the construction of precedent and the standards by which particular points—an example being the majority’s reliance on 2 U.S.C. §2(a)(c)—are deemed relevant.  More interesting is the way that the majority weighs the reform objective.  The majority in the Arizona case adheres to a model familiar in political reform arguments, within and outside the Court.

For this majority, the constitutional question cannot be considered apart from the reform objective served by the initiative creating the Independent Redistricting Commission.  The “people” are seen to be taking urgent steps to protect against officeholder self-interestedness. So, as Justice Thomas points out in dissent, the Court here lauds the exercise of direct democracy, which at other times is given the back of its hand.  The reason for the difference is simple: the objective that, in this case, the tools of direct democracy have been wielded to bring about.

An Exchange on the Arizona Redistricting Case

June 26, 2015
posted by Bob Bauer
Earlier today, Rick Pildes  commented on the Election Law Blog on the Arizona redistricting case, and I replied.

The Supreme Court and the “Constituent”

June 2, 2015
posted by Bob Bauer

The Supreme Court has effectively decided to consider the question of who qualifies as the constituent of a legislator, and, as Joey Fishkin has pointed out, it got into this question from a different perspective in its most recent campaign finance decision, McCutcheon.  There the Court included in that category donors, including out-of-jurisdiction donors.  Is it possible that this Court would conclude that a donor is a constituent but that for purposes of the constitutional question presented in Evenwel , a resident under the age of 18 or a noncitizen is not?    Fishkin writes: “[W]ho counts as a constituent?  That’s the question, long latent, that the Court has decided to decide in Evenwel.”

This question can be attacked by the Court’s application of High Theory, or the resolution can be left with…. the politicians, entrusted with the judgment of how to define their representative relationships.  This is one way to reconcile the McCutcheon decision with the right decision in Evenwell: the Court should not jump in and shape that choice by insisting on the one definition of constituency—eligible voters.  To the extent that the Constitution does not dictate the answer, the Justices would be unwise to do so.

It is understandable that supporters of redistricting reform would root hard for victory in the Supreme Court for the Arizona Independent Redistricting Commission.  Discounting the claim that there is a unique constitutional problem with the Arizona initiative--that it completely "cuts the legislature out" of redistricting--they fear a broad ruling with adverse effects beyond Arizona on various kinds of independent commissions.

But the suggestion that what is at stake is “democracy” has been pushed far.  Noah Feldman writes, for example, that initiatives constitute a crucial response to what “special interests” can do to “distort what happens in state legislatures.”  Of course, initiatives are also not free of distortions.  Success in the initiative process can go to the side with the most money; initiative campaigns do not necessarily qualify as the most informative or accurate in the presentation of their case; ballot language can be confusing to voters; and so forth.

The argument over the constitutionality of the Arizona Independent Redistricting Commission can go the way of plain language debates, and it can also branch off into the question of whether it is good to have legislators function under the threat of initiative. A fine brief filed by Professor Nate Persily, on behalf of himself and eminent political scientists Bruce Cain and Bernard Grofman, takes on that question, among others, and answers it in the affirmative.

Under their theory, legislators who know that the public might act in their place may engage in constructive defensive maneuvers: they may make more of an effort to craft a redistricting map that is fair or not lopsidedly partisan. And even if the voters take this decision out of their hands, the lawmakers will be spared the bloody battles that are singularly damaging to legislators' working relationships across-the-board.

On this view, initiatives like the one in Arizona can be defended as effective in structuring incentives for sound legislative decision-making or in protecting against the collapse of comity. But they can also draw the objection that the effect of these incentives is uncertain and that this uncertainty exacerbates constitutional concerns about the invasion of a legislature’s authority.