Supreme Court's Upcoming Redistricting Decision Could Upend Many Other Election Laws

WASHINGTON -- How the Supreme Court rules this year in Arizona's redistricting case could affect election laws across the country and lead to a scramble in the state as officials and voters figure out how to create acceptable redistricting procedures.

The case pits the Republican-controlled legislature against the state's independent redistricting commission, which was put in place through a ballot initiative in 2000 to resolve complaints that the legislature was engaging in partisan gerrymandering of congressional districts. The commission has two Republicans and two Democrats, who are chosen by legislative leaders from a list drawn up by the state's Commission on Appellate Court Appointments. Those four members then choose a chairman, who cannot be affiliated with either party.

After the 2010 census, the commission drew four safe seats for the GOP and two for Democrats, along with three tossup districts, which all elected Democrats in 2012. After that cycle, Republicans in the legislature began to attack the commission's members as unelected and unaccountable to the people, and then sued, saying that the Constitution's elections clause designated that the "times, places, and manner" of federal elections should be decided in each state by the "legislature thereof."

In oral arguments last week, the commission's defense argued that the "legislature" can refer to the legislative process, as exercised by the people through the direct democracy of the ballot initiative. The legislature's attorney, on the other hand, said the constitutional language was solely referencing the legislative body.

If the court rules for the legislature, havoc could ensue: California's redistricting process, which is similar to Arizona's, could also be struck down, along with the redistricting commissions in a number of other states. The Brennan Center for Justice, which supports the independent commission, has pointed out that dozens of other election laws created by ballot initiatives could also fall, including those establishing all-mail elections in Oregon and voter ID in Mississippi.

Justin Levitt, a professor at Loyola University's law school who signed an amicus brief in support of the commission, suggested that "it is clear that the court’s pretty split on the things that it found most problematic."

"It's sort of more than a fight about commissions, it’s a fight about who gets to speak for Arizona," Levitt told The Huffington Post. "If the court finds for the legislature, then what happens next could depend a huge amount on what the basis for the court’s holding is -- at the most extreme end, if it says legislature means legislature for real, it would undo two past cases the court has passed and it could call into question not only whether commissions can draw lines, but whether any constraint on the legislature is constitutional."

"That would upset an awful lot of apple carts," he added.

Perhaps because the potential for disruption is so broad, independent redistricting advocates in Arizona say it's premature to prepare any contingency plans.

"Nobody’s been having any kind of discussions about that, what the alternative would be, because we feel it’s been working for two rounds," said Robyn Prud'homme-Bauer, the president of the League of Women Voters of Arizona. "The groups that have been involved in redistricting haven’t really been talking about any alternatives because we’re hoping that won’t have to be discussed. We feel our model works very well and we feel confident that they should vote on our side."

Prud'homme-Bauer added that backers of the independent commission wanted to keep the legislature "at arm's length" from the redistricting process, and that will should be respected by the court.

"If they throw it out, are they throwing out the initiative process? That’s the question that needs to be asked," she said.

If the court strikes down the commission, advocates could look to a variety of models in other states as they decide what options to place before voters in 2016 or the future.

One of the states frequently held up as an example that redistricts efficiently and without drama is Iowa, where a nonpartisan legislative services bureau draws the lines, which it then submits to the legislature for approval. The legislature has the opportunity to reject the congressional maps twice before drawing its own.

Other states could find it impossible to replicate Iowa's process, however, because it is heterogenous in many ways -- partisan makeup, minority population distribution, urban and rural distribution, etc. -- across the state.

"Iowa’s like bread. No matter which way you slice it, it's still bread. That’s not true in most other states," Levitt said. "A lot of different lines will yield about the same mix of the population. Those are the easiest conditions to make a body like that perform to the satisfaction of the people."

Because Arizona's legislature brought the suit, it's unlikely that it would be amenable to a solution that still vested line-drawing control in the hands of another institution.

"This is going to sound super hokey, but it’s actually true. [Iowa's process] works because Iowa politics are nice," Levitt explained. "The legislature has kept it in place even when the commission makes decision that pair incumbents together, they’ve kept it even when it hurts them. That’s based on a political culture that is very hard to mimic elsewhere. There aren’t a lot of states where there’s this institution that systematically gets in the way of the legislators having exactly what they want."

If Iowa's process can't be replicated, then disappointed Arizonans could look to Washington state, where the independent commission that draws the lines is chosen by the state legislature's leadership. If two-thirds of the legislature agrees, it can tweak the commission's lines after they're submitted by no more than 2 percent of any given district.

Levitt said that even that kind of "tinkering at the end" could be at risk.

"That allows the legislature to have a role, but is that enough of a role? It totally depends on what the Supreme Court says," he noted.