On June 29th, 2015 the US Supreme Court ruled 5-4
that Arizona’s commission to draw state Congressional districts was not a
violation of Article I Section 4 of the US Constitution. This news drew frowns
of concern from many a political and policy wonk, but barely a whisper from the
general public. Sadly, the majority of the population was still chattering
about the same-sex marriage ruling—oblivious to the fact that the “Arizona Independent
Redistricting Commission” ruling will prove a far more troubling precedent to
our every-day lives.
At first glance it would seem that this decision is a win
for democracy, especially for grass-roots movements frustrated with
establishment politics who entrench themselves through gerrymandered districts.
As is all too often the case, the devil is truly in the details. The Commission
was enacted via a ballot initiative, which succeeded 56%-44%, during the 2000
election. It was immediately challenged by the Arizona legislature as a clear
violation of the US Constitution and has been tied up in the court system until
the SCOTUS ruling in June of this year. The Commission’s stated purpose was to
remove partisan politics from the redistricting process in order to prevent
gerrymandering. Again, an entirely noble
goal and one that so simply stated should have passed by a far wider margin.
One of the reasons the vote was not a unanimous victory was
due to well stated opposition that pointed out an essential flaw with the commission
(beyond it’s blatant disregard for Constitutional law): that removing politics
and party matters from an election process is not only counter-intuitive, but Quixotic.
The very make-up of the commission lends
itself to partisan manipulation. The first four members are appointed by the
four most powerful people in the Arizona state legislature—the very people the
voters wanted removed from the redistricting process— the Speaker of the
Arizona House of Representatives, the Minority Party Leader of the Arizona
House of Representatives, the President of the Arizona State Senate and the
Minority Party Leader of the Arizona State Senate. Those four appointees will
then choose a fifth and final member who will chair the commission. Further rules include: no more than two of the
members can be from the same political party or the same county. Persons would
be eligible for membership on the commission if they meet certain voter
registration requirements, and if during the last three years, they have not
been candidates for public office or appointed to public office, except for
school board members or officers, have not served as an officer of a political
party or as an officer of a candidate's election committee and if they have not
been a paid lobbyist.
The most naive of observers will note that changing a party
registration is a simple matter that does not affect one’s actions once in
office. That makes the “balancing” of
the parties on the commission nothing more than a sop to voters. Rules
regarding previous employment are likewise little more than polite
window-dressing. Nothing in the regulations state that a commission member
cannot have been a member of a House or Senate member’s staff in the past three
years, or even the last month! The three year time limit itself seems
questionable also, as districts are re-drawn after every US Census, or, every
ten years. A member of Congress
re-districted right out of his or her seat could very well strong arm his or
her way onto the next commission and be within the rules.
After going through the mental gymnastics of creating a “non-partisan”
election commission, the initiative then sets out rules for how districts are
to be drawn. Again, these, at first
glance, sound perfectly reasonable and eminently democratic.
1. Districts shall comply with the United States Constitution and the federal
Voting Rights Act. 2. Both legislative and congressional districts shall be
equal in population, to the extent practicable. This establishes a new strict
population equality standard for legislative districts. 3. Districts shall be
geographically compact and contiguous, as much as practical. 4. District
boundaries shall respect "communities of interest," as much as
practical. 5. District lines shall follow visible geographic features, and
city, town and county boundaries and undivided "census tracts" as
much as practical. 6. Political party registration, voting history data and
residences of incumbents and other candidates may not be used to create district
maps. 7. "Competitive districts" are favored if competitive districts
do not significantly harm the other goals listed.
Well, #1 is already void but we’ll review that in just a
moment. Points 2 and 3 seem reasonable enough. Number 4 however gets dicey, as
“communities of interest” starts fiddling with VRA language. Also, do you
respect communities of interest more than keeping districts compact
geographically? What’s the priority there?
The real quandary, though, comes with points #6 and #7. In fact, #7 directly contradicts #6 because
you cannot have a “competitive district”, or even know that a district IS competitive
without analyzing voting history data. To be honest, these guidelines sound
like they were written by a 7th grade social studies class trying to
create the perfect democracy and without any idea of how our democratic
Republic actually works.
Finally we come to the most glaring issue: all of this is in
direct contradiction of the US Constitution. I feel like the lady in the
insurance commercial telling her friend “That’s not how it works! That’s not
how any of this works!” When we need to
decide how to draw Congressional districts there is (or, there was) very simple
guidance:
Article I Section 4
The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof;
but the Congress may at any time by Law make or alter such Regulations
A ballot initiative is not a legislature, it is a plebiscite.
Sadly, Justice Ginsburg, writing for the majority, decided to go on an
erroneous tangent about the history of democracy in America rather than address
the clear language and Constitutional precedent regarding Article I. She
cherry-picks quotes from historians to claim that “the Framers would not have
imagined the modern initiative process in which the people’s legislative power
is coexistent with the state legislatures.” Firstly, I do believe the Framers
were intimately aware of plebiscites and their power—and they were rightly
afraid of the “whims of mob rule”. Secondly, we are a democratic, legislative,
Republic. We are not a democracy. The
Right Honorable Justice needs to review not only her early American History but
her basic civics. Allowing fundamental changes in the framework of government
to be enacted by a basic ballot initiative is a dangerous road to travel.
Which is why, of course, the Framers of the Constitution made
sure that the process for amending the Constitution required strenuous debate
and agreement by a super-majority of elected representatives in either the
Congress or a convention of states. They’d
lived through the tumultuous pre-Revolutionary days in Boston and Philadelphia,
when it seemed a riot might break out at a single word. Although the world had
not yet witnessed the rise of populist demagogues in the French Revolution, or
in Nazi Germany, Madison and Morris knew well the power of words upon men’s souls. They were determined to prevent “mob rule”
and let “cooler heads prevail” through series of “checks and balances” not only
in the system of government itself, but in the very document which outlined and
defined the government.
The sad fact of the Arizona decision, and why I say that it
affects our every-day lives far more than the same-sex marriage ruling, is that
it has de-facto removed the need to amend the US Constitution. After all, the original text of Article I had
US Senators being appointed by state legislatures. That was changed by the 17th Amendment.
The idea to have a popular election of Senators was first introduced in the
1820’s but the amendment movement didn’t gain steam until the turn of the 20th
century. The 17th Amendment in it's final form was finally introduced in 1911 and fully ratified in
April of 1913. How sad that the supporters went through all that trouble, when
all they need to have done was have a plebiscite and then a Supreme Court
decision that re-interpreted the meaning of “legislature”!
Once again, we have a SCOTUS ruling that “interprets” clear
language to fit the demands of the current populace. But it is not a majority of
Americans who demanded that their legislators be removed from the redistricting
process. It was not, even, a super-majority
(2/3) of those voting in Arizona during the 2000 election. Because of how
precedence works in American law, though, there is now an opening for other
states to follow suit, not just on this matter but a host of others.
We are increasingly ruled by the dogmatic whims of nine
unelected persons rather than by the careful, reasoned debate of our elected
representatives. (Yes, I know that careful, reasoned, debate out of Washington
is hard to come by these days. At least we have recourse when they fail so
spectacularly at their jobs.) If we, the
people, are so offended by the gerrymandered districts in our states and
commonwealths, we have a duty to vote those who drew those districts out of
office. Sadly, for the people of
Arizona, that is no longer an option.
Citizens of Arizona no longer have a say in who draws their voting
districts, and there is, now, nothing stopping your state from doing the exact
same thing.
I don’t know about you, but some un-elected, un-accountable,
partisan hack deciding how, when, and who I get to vote for scares me a whole
hell of a lot more than whom my neighbor might decide to marry.
