Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review
Although racial gerrymandering has been ruled unconstitutional, political gerrymandering has not yet been explicitly rejected by the courts and is even supported by some as an acceptable mechanism for drawing congressional district maps. However, in a political landscape where race, gender, religion, education level, and class are all strong predictors of party affiliation, political gerrymandering can easily serve as a smokescreen not only for racial gerrymandering, but also for other forms of redistricting discrimination that are likely to lead to further silencing of already marginalized groups. This is not to say that political gerrymandering is per se unconstitutional. But, where citizens are not satisfied with political redistricting, some mechanism should be available for voters to push back.
In states where citizens have decided that politically motivated redistricting is undesirable, voters have done just that. In order to mitigate political gerrymandering, residents of several states have taken action through various means, including the creation of nonpartisan commissions dedicated to drawing impartial Congressional district maps. But, despite popular support, this trend toward impartial redistricting has not been without controversy. Most recently, the Supreme Court heard oral arguments in a case out of Arizona regarding election map redistricting. This case, brought by Arizona’s own state legislative body, challenges the constitutionality of an independent redistricting commission created via a voter-initiated referendum in 2000. Provided that the case is not decided entirely on the issue of standing, the Supreme Court is poised to determine whether the Arizona Independent Redistricting Commission (AIRC)—and, along with it, other similar redistricting commissions currently in action across the country—violates the Elections Clause of the United States Constitution. But the implications of this decision go beyond redistricting commissions; a decision in favor of the Arizona state legislature on this matter could call into question the voting public’s right to make direct changes to the laws that govern them even when the elected officials who represent them may disagree. This right is foundational to the American public’s ability to ensure preservation of all other rights. In light of this, the Supreme Court should affirm the lower court’s decision upholding the constitutionality of the AIRC, thereby preserving the right of voters to protect the democratic process in their state.
Arizona Voters Take Action
Since Arizona’s acceptance into the United States in 1912, its Congressional districts have been drawn entirely by the state legislature. Frustrated by the highly politicized redistricting process in their state, Arizona voters approved Proposition 106, a state constitutional amendment that created the Arizona Independent Redistricting Commission. As required by this amendment, the AIRC consists of five members, four of whom are selected by state legislature leadership from both parties, with the fifth individual selected by the other newly appointed members. The governor, with concurrence of the state senate, maintains termination authority over the AIRC members for cause while both bodies of the legislature are permitted to submit comments to the AIRC on any new district map, which the AIRC is required to review and duly consider. However, despite this continued, significant involvement in the redistricting process, the legislature was not satisfied with this restriction of what they believed to be power vested to them by the United States Constitution. In 2012, following the approval of new Congressional districts drawn by the AIRC, the Arizona Legislature brought an action against the AIRC in federal district court. In this action, the Legislature challenged the constitutionality of not just the new district map, but the Commission itself.
The Legislature argued that this commission, along with similar systems created in other states, violates the Elections Clause contained in Article I, Section 4 of the Constitution, which provides that each state’s legislature is responsible for prescribing the “Times, Place and Manner” of elections for members of Congress. However, the lower court found in favor of upholding the Commission, holding that the Elections Clause allows residents of a state to utilize the legislative process to make this kind of change to the redistricting process. Over the objections of the Legislature, the lower court held that a state constitutional amendment enacted via a voter-driven ballot initiative was not only supported by Arizona’s own state constitution, but that the Supreme Court has rejected the very foundation of the Legislature’s arguments against such an initiative. Although the Legislature argued that the Elections Clause “specifically grants the power to realign congressional districts to the legislature,” the Supreme Court has held to the contrary in two previous cases: Ohio ex. rel. Davis v. Hildebrant and Smiley v. Holm. In light of these earlier cases, the district court could not justify striking down the validly promulgated constitutional amendment creating the AIRC. For this same reason, the Supreme Court must and should affirm the lower court’s ruling.
Supreme Court Precedent Favors the AIRC
In Hildebrant, Ohio voters exercised their state constitutional power to vote down any law passed by the state legislature in order to veto a congressional redistricting plan. In response, the state legislature brought a mandamus action against the state’s election authority, seeking to compel the election authority to ignore the referendum and proceed with the redistricting plan as promulgated by the state legislature. The Ohio Supreme Court denied the writ of mandamus, holding that “the [state constitutional] provisions as to referendum were a part of the legislative power of the state” and therefore fell well within the standards set forth in the Election Clause’s reference to “the Legislature.” In affirming the denial of the writ, the Supreme Court endorsed the Ohio Supreme Court’s holding that the Elections Clause was meant to vest authority for actions such as congressional redistricting “in the operation of a state’s legislative power; not necessarily in the state legislature.”
Later, in Smiley, the Minnesota Secretary of State challenged a state constitutional provision that gave the state’s governor the authority to veto redistricting maps drawn by the state legislature, arguing that this violated the Election Clause’s vesting of redistricting authority solely with the legislature of the state. The Minnesota Supreme Court ruled in favor of the Secretary, but the Supreme Court reversed the decision, holding that there was “no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.” In light of this analysis, the Court held that the Elections Clause cannot be read either to require or to exclude state legislative systems that vest congressional redistricting powers in entities outside of the legislature.
Supported by the Constitution, Arizona state law, and Supreme Court precedent, the district court ruled in favor of the AIRC, rejecting the Legislature’s argument that the Elections Clause did not permit democratically promulgated laws to pass any part of the redistricting process to entities outside the state legislative body. Nevertheless, the Legislature appealed to the Supreme Court, which granted certiorari, and the Court will decide the fate of the Commission at some point later this term.
Implications Moving Forward
Traditionally, a referendum put forth by the voters to amend a state constitution would be held in very high regard by the elected officials who represent those voters in the legislature. But, when such a referendum is used to take authority previously in the hands of the state legislature and vest it with an apolitical independent body, legislators appear to be less likely to defer to the voting public. Although Arizona’s legislature challenges this initiative under the guise of constitutional concerns, it is not difficult to see the stake that they carry in this fight. By maintaining control of the redistricting process, party leaders potentially have an opportunity to maintain control of the entire legislature through the political gerrymandering process. When one political party gains control of the legislature, that same political party then has the unchecked authority to redraw a district map that favors their party, giving them a statistical advantage in future elections. When those future elections come to pass, districts mathematically favorable to that same party will then, once again, elect a legislature dominated by the same party. When it comes time to draw the district map again, the cycle starts again and, over time, it becomes nearly impossible for politicians from the opposing party to be elected without dramatic shifts in the demographics of the state or massive grassroots movements. Without an opportunity for residents of the state to push back, opposition is silenced and power remains in the hands of the same party for decades.
Unless and until the Supreme Court rules that politically motivated redistricting is unconstitutional, independent redistricting commissions like the AIRC are a critical tool for citizens to regain and maintain power over the political process within their own state in a highly politicized environment. In light of these policy considerations—in addition to the compelling legal arguments as stated by the federal district court in the present case—the Supreme Court should, undoubtedly, decide in favor of the AIRC by upholding the lower court decision this term. If they do not, the AIRC—and other commissions like it—will be dissolved, once again placing the redistricting power in the hands of political officials who may not have the best interests of the electorate at heart. By snuffing out independent redistricting commissions before they have even had a chance to make positive change, the Supreme Court—a body designed to protect the rights of the People—would give an unprecedented advantage to partisan politics over and above the very citizens those legislators are elected to represent. Such a ruling would, in short, be antithetical to the very purpose of a representative democracy.
 This issue was first directly addressed in Gomillion v. Lightfoot, 364 U.S. 339, 346 (U.S. 1960), which held that that, “[w]hen a legislature . . . singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment.”
 For a thorough discussion of political gerrymandering, generally, as well as in comparison to racial gerrymandering, see Michael Weaver, Uncertainty Maintained: The Split Decision Over Partisan Gerrymanders in Vieth v. Jubelirer, 36 Loy. U. Chi. L.J. 1273 (2005).
 As an example, according to a 2012 Pew Research Center Study, nearly 69% of African Americans and 57% of Hispanic Americans identify as Democrats, women are more likely to identify as Democrats than men (37% and 27%, respectively), and 50% of people with no religious affiliation identify as Independent. See “Partisan Polarization Surges in Bush, Obama Years,” Pew Research Center: U.S. Politics and Policy, Jun. 4, 2014, available at http://www.people-press.org/2012/06/04/partisan-polarization-surges-in-bush-obama-years/.
 For a discussion in support of independent redistricting commissions as an effective (albeit limited) mechanism for mitigating partisan political impacts on Congressional districts, including a discussion of states currently implementing similar programs, see Jeffrey C. Kubin, The Case for Redistricting Commissions, 75 Tex. L. Rev. 837 (1996-97).
 Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n., 997 F.Supp. 2d 1047, 1048-49 (D. Ariz. 2014), petition for cert. granted, Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 2014 U.S. LEXIS 4898 (U.S. 2014).
 Although the issue of standing was quickly dismissed by the lower court, the appellees included the issue in their briefs to the Supreme Court upon appeal, arguing that “an abstract dilution of institutional power” is insufficient to establish the harm necessary to support standing and that, “[a]s an organ established by the People, [the Arizona State Legislature] lacks standing to challenge the People’s decisions about how to allocate lawmaking power.” Brief for Appellees Arizona Independent Redistricting Commission, Ariz. State Legislature, 2014 LEXIS 4898, at 5.
 U.S. Const. art. I, § 4, cl. 1.
 Ariz. State Legislature, 997 F.Supp. 2d at 1048.
 Id. at 1049.
 Id. at 1049. The state legislature argued that this constitutional provision “specifically grants the power to realign congressional districts to the legislature” both by explicitly seating power in the “legislature” and because the process of establishing voting districts is ostensibly related to the “time, place, and manner” of elections. Essentially, the legislature’s argument relied on a strict textual interpretation of the Elections Clause, but did not reflect Supreme Court precedent on the matter, which has “twice rejected the notion that when it comes to congressional redistricting the Elections Clause vests only in the legislature responsibilities relating to redistricting.”; U.S. Const. art. I, § 4, cl. 1.; See also Reply Brief for Appellant, Ariz. State Legislature, 2014 LEXIS 4898.
 Ariz. State Legislature, 997 F.Supp. 2d at 1051-56.
 Id. at 1051. Article IV, part 1, § 1(1) of Arizona’s state constitution clearly states that “the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”
 Id. at 1052.
 241 U.S. 565 (1916).
 285 U.S. 355 (1932),
 Ariz. State Legislature, 997 F.Supp. 2d at 1051-56.
 241 U.S. at 567.
 Ariz. State Legislature, 997 F.Supp. 2d at 1053 (emphasis added).
 Smiley v. Holm, 285 U.S. 355, at 362-63 (1932).
 Id. at 367-68.
 Ariz. State Legislature, 997 F.Supp. 2d at 1054, citing Smiley, 285 U.S. 355 at 367-68.
 Ariz. State Legislature, 997 F.Supp. 2d at 1051-56.
 Ariz. State Legislature, 2014 U.S. LEXIS 4898. The order granting certiorari also postponed discussion of the question of jurisdiction and standing to the merits hearing.