Gerrymandering (Almost) Gone Wild: How the Supreme Court Saved Independent Redistricting Reform

Elections have consequences. In the 2010 U.S. midterm elections, the Republican Party made historic congressional gains. After the election, much political discourse focused on the incoming battle between the new Republican Congress and President Barack Obama. Yet the midterm results affected much more than the presidential agenda, as the Republican Party also achieved impressive state-level gains that resulted in control of many legislative chambers nationwide. These sweeping state-level gains did not affect policy alone. The Democratic Party—and the Republican Party in several “blue” states—paid a drastic price: the gerrymandered results of the 2010 decennial redistricting cycle. As a partisan tool, gerrymandering refers to drawing electoral districts “in a manner that intentionally discriminates against a political party.” Although the practice of gerrymandering is historically common, state legislatures arguably gerrymandered to an even higher degree during the 2010 redistricting cycle. Not all states face gerrymandering issues, however. In fact, several states have curtailed legislative gerrymandering while others have completely removed the legislature’s redistricting power. For example, Florida voters approved a ballot proposal amending the state’s constitution to set strict guidelines on the legislature’s redistricting. In California, a voter initiative established an independent redistricting commission to combat problems associated with gerrymandering. Some observers likened California’s commission to the one Arizona voters enacted almost a decade before, the Arizona Independent Redistricting Commission (AIRC). However, these two commissions had one key difference: Arizona’s initiative authorized legislative party leaders to appoint members onto the AIRC, making it inherently more partisan. While some heralded the initiative as “the most advanced citizen-based approach” to redistricting when enacted, this wrinkle of partisan appointment was controversial and almost led to the destruction of all independent redistricting reform. After the 2010 redistricting process in Arizona, the AIRC’s debatably partisan map aided Democratic candidates in winning additional seats the following election. Angered, various Republicans attacked the AIRC commissioners as biased and “unaccountable to the people.” In turn, the growing crescendo of attacks resulted in a massive legal battle between the Arizona legislature and the AIRC that would culminate in a narrow five-to-four decision—Arizona State Legislature v. Arizona Independent Redistricting Commission. In June 2012, the Arizona legislature sued the AIRC and its members, arguing that Proposition 106—the voter initiative creating the AIRC—was unconstitutional. A three-judge panel ruled that the legislature had standing by showing “its loss of redistricting power constitute[d] a concrete injury,” but dismissed the claims that the AIRC’s existence was unconstitutional. Subsequently, the Supreme Court accepted jurisdiction on the case. Many worried that the Court would invalidate all redistricting reform that did not originate in a state legislature. During the case’s oral argument, the Court appeared to be narrowly divided on the actual merits, i.e. whether the word “legislature,” as used in the U.S. Constitution’s Election Clause, literally meant that only the legislature could draw congressional districts. If the Court had ruled in favor of this interpretation, it would not only have struck down the AIRC, but other states’ redistricting committees as well. This Comment discusses how the Arizona State Legislature majority reached its decision to uphold independent redistricting commissions, addresses issues that several of the dissenters raised, and analyzes how the decision will impact partisan gerrymandering and future redistricting reform. Part I briefly overviews reapportionment, gerrymandering, and redistricting reform. Part II then examines Arizona State Legislature and provides the legal and political context for the nearly five-year debate over the AIRC. Finally, Part III explores potential legal and policy ramifications of the decision on the future of partisan gerrymandering and redistricting reform