Not as good a day at the Supreme Court today as Friday (only one out of three decisions went the right way), but the one was very significant. In a moderately surprising development, Justice Anthony Kennedy again sided with the four liberal justices to uphold Arizona’s independent redistricting commission.
The commission was originally adopted by state voters via the initiative process in 2000, specifically to address partisan gerrymandering in the redistricting process. In 2012, following the commission’s redistricting plan for both congressional and state legislative districts, the state legislature sued, claiming that by stripping the legislature of its redistricting prerogatives, the voters of Arizona ran afoul of the Elections Clause of the Constitution, which states that:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Con gress may at any time by Law make or alter such Regulations . . . . Art. I, §4, cl. 1.
The Supreme Court today, in a 5-4 decision, opinion by the Notorious RBG, held that the creation by the voters of an independent commission to create congressional districts did not violate the above constitutional provision.
The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representa tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec tions Clause does not hinder that endeavor.
Any state - even those, like Maryland, that do not have the power of initiative, and thus require affirmative legislative action - that seeks to create an independent or bipartisan redistricting commission, can now do so secure in the knowledge then it will not be subject to constitutional challenge.
In Maryland, it would take a constitutional amendment passed by the General Assembly and then approval by the voters. I’ve advocated for such a process for years. Today’s decision should be a spur to such efforts. Let’s see what if anything happens.