Way back in 1811, almost 40 years before California became a state, then Massachusetts Gov. Elbridge Gerry engineered a congressional redistricting plan guaranteed to let his Democratic-Republican Party control his state’s congressional delegation.
The plan – motivated in part by Gerry’s loss of a seat in Congress after opponents 10 years earlier set up a district he could not possibly win – contained a district shaped like a lot like a salamander. This led to use of the term “gerrymander” to describe the process by which legislatures draw districts to ensure outcomes they like.
Fast forward 197 years to when California voters short-circuited that process by approving the 2008 Proposition 11, which set up an independent citizens’ commission to draw state legislative district lines starting in 2011. Two years later, passage of Proposition 20 added congressional districts to the commission’s task.
Now, after two election cycles featuring many more close and competitive races than California had seen in decades, the citizens commission’s work may be thrown out by the U.S. Supreme Court via a case brought by leaders of the Arizona Legislature.
Ironically, the plaintiff Arizona politicians are Republicans fearing a weakening in their control of that desert state. But if the Republican-dominated high court rules for them, it will be at the same time be increasing Democratic hegemony in California, where almost 80 percent of Congress members already are Democrats.
But that would not be inconsistent for this Supreme Court, which has shown for almost 20 years that it cares little about increasing voter turnout or letting voters make their own choices.
The current justices have gutted the Voting Rights Act. Most were on the court that in 2000 threw out California’s former “blanket primary” system, adopted by voters in 1996. Under that system, challenged by both major political parties, anyone could vote for any candidate on the primary ballot, regardless of party registration. The leading vote-getter in each party then made the November runoff election. Most current justices also were on the court that – also in 2000 – called a halt to recounting votes in Florida, thus assuring the presidency for Republican George W. Bush, who tallied about half a million fewer votes than Democrat Al Gore. In all those cases, so much for what the majority of voters wanted or for helping more Americans exercise their right to vote.
So it was hardly surprising that several justices appeared in a court hearing this month to favor the arguments of the Arizona Legislature’s Republicans, who argued that the Constitution gives the right to redraw congressional districts each decade exclusively to legislators.
They noted that the Constitution says “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the Legislature thereof.” Of course, choice of U.S. senators was taken out of legislative hands in 1913 by the 17th Amendment, but even before then, many states were electing senators by popular vote regardless of the fact that Article 1 of the Constitution still said senators from each state were to be “chosen by the Legislature thereof…”
So there’s plenty of precedent for deviating from strict constitutional construction, even without an amendment.
But, as cynics might say, tell that to the justices.
Justice Antonin Scalia, leader of the court’s usually controlling conservatives, claimed in the early March hearing on the Arizona appeal that when the Constitution says “Legislature,” it means only elected lawmakers and not the mass of voters who often pass state law via ballot propositions. Never mind that initiatives didn’t exist in 1787.
Letting a commission draw districts, Scalia said, “is giving this power to an unelected body…”
Californians deliberately did just that. And the work of the first citizens’ commission, vetted by the state’s non-partisan auditor, has gotten generally good marks.
Chances are if the court – due to rule on this case before July 1 – rules for the Arizona legislators, the decision would quickly be applied to California via lawsuits in lower federal courts. That makes it possible new congressional districts could be in place by the 2016 primary, drawn by Democratic legislators to favor election of even more Democrats to Congress. Voters would be lucky if lines look no more convoluted than salamanders.
But there’s one large comfort here: Any such ruling would apply only to congressional districts and not state legislative lines. So the citizens commission will be back in 2021 no matter what, even if its work is not as broad as it was four years ago.