Arizona’s Battle to Retain Its Independent Redistricting Commission: When “Legislature” Doesn’t Really Mean “Legislature”

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Although racial gerrymandering has been ruled unconstitutional,[1] 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.[2] However, in a political landscape where race, gender, religion, education level, and class are all strong predictors of party affiliation,[3] 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.[4] 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.[5] Provided that the case is not decided entirely on the issue of standing,[6] 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.[7] 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.

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Racial Quotas in Partisan Gerrymandering

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Every ten years, a special ritual, steeped in political history, takes place in the United States. That ritual is the reapportionment and redrawing of state and federal congressional maps. Redrawing legislative districts serves to keep representation relatively equal among voters, i.e., to ensure each district has an equal amount of voters. Following the release of the census data, the political party in power has incentive to redraw districts in a manner that maximizes party control and protects incumbents. This strategy is called gerrymandering. Partisan gerrymandering, despite criticism, is permissible so long as voters retain a relatively equal voice (equal populations per district) and there is no discriminatory purpose in the redistricting.

On November 12, 2014, the United States Supreme Court heard arguments in The Alabama Legislative Black Caucus v. Alabama. The Court is expected to answer whether the Republican-controlled Alabama legislature took part in racial gerrymandering when redrawing state senate and house districts. In Alabama, the racial gerrymandering claims will likely fail because the redistricting was done under racial considerations but with regard to the mandates of the Voting Rights Act of 1965 (VRA). As such, Alabama’s state legislature engaged in permissible partisan gerrymandering, void of discriminatory intent. Given the nature of the questions the justices asked during oral argument in the case this past November, the Court is likely to agree that the VRA is invaluable to the redistricting process and uphold the redistricting.

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