Court Hands Victory to the People in Redistricting

Steven D. Schwinn, John Marshall Law School

The Supreme Court ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that federal law and the Elections Clause permit the people of Arizona to create, by referendum, an independent redistricting commission and vest it with authority to redraw congressional districts.

Arizona voters designed the Commission to take redistricting authority away from the state legislature and put it in the hands of an independent authority. In validating the Commission, the Court handed a significant victory to the voters--the People themselves--as against the state legislature and its partisan gerrymandering. The ruling means that Arizona's independent commission stays in place and can continue its work redrawing congressional districts.

Here's our oral argument review.

The key dispute between the majority and dissent is how to cast the exercise of redistricting power through referendum: the majority says that the people themselves hold government power, and therefore hold "legislative" power under the Elections Clause to create an independent redistricting commission; the dissent says that only the legislature holds redistricting power under the Elections Clause.

Justice Ginsburg wrote for the Court, joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. She wrote that 2 U.S.C. Sec. 2a(c)--which provides that "[u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment," it must follow federally prescribed redistricting procedures--permits redistricting by an independent commission created by voter referendum. She also wrote that the Elections Clause permits this. "The history and purpose of the Clause weigh heavily against [preclusion of the right of the people to create an independent redistricting commission], as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government."

Chief Justice Roberts wrote the principal dissent, joined by Justices Scalia, Thomas, and Alito. He wrote that the text, structure, and history of the Elections Clause say that only "the legislature" can prescribe "The Times, Places and Manner of holding Elections for Senators and Representatives."

Justices Scalia and Thomas each wrote their own dissents, each joined by the other.