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Who Can Draw Legislative Districts? The People, SCOTUS Says

By Casey C. Sullivan, Esq. on June 30, 2015 | Last updated on March 21, 2019

The Supreme Court has upheld Arizona's use of independent commissions in drawing legislative districts. In order to prevent gerrymandering, the state elected, through public referendum, to establish an independent commission to draw congressional districts. The state legislature challenged this practice, arguing that it violated the constitution's Elections Clause, which declares that the time, place and manner of Congressional elections should be determined "in each State by the Legislature therefor," though Congress can alter those regulations.

The opinion, written by Justice Ginsburg and joined by Kennedy, Breyer, Sotomayor, and Kagan, held that states weren't limited to having their legislatures in charge of legislative districting, so long as the choice is enacted through proper means. "Legislature," read this way, isn't limited to elective representatives -- it means any law-making authority, including the people themselves.

Power to the People

The Court read the Elections Clause as allowing redistricting by independent commission, since its dominant purpose was not to limit redistricting methods, but allow Congress to override state election rules. The use of "the Legislature thereof," was not referring only to a state's legislature, the Court ruled, but to a state's governmental processes, which can include the initiative system used in Arizona. To rule otherwise, Ginsburg wrote, would be to ignore the "animating principle" behind the Constitution -- that the people themselves are the source of governmental power and authority.

In plain language, the case means that unelected, presumably disinterested, commissions can continue to draw legislative boundaries -- a practice currently unique to Arizona and a handful of other states.

It also represents an endorsement of direct democracy solutions to problems a state legislature may not be able to solve on its own. As Ginsburg notes, twenty-one states now have direct democracy practices, such as initiative processes. These could presumably be used to institute a system similar to Arizona's, should a state's voters so desire.

The Return of the Living Constitution?

The case is also a reminder that the idea of a "living Constitution" hasn't died. Ginsburg's broad reading of a seemingly straightforward phrase, "the Legislature thereof," echoes the pragmatic interpretation of Constitutional provisions as "organic, living institutions," as Justice Oliver Wendell Holmes wrote, capable of adapting to modern times the Framers had not imagined. A similar approach was taken by Kennedy in last week's marriage equality ruling, where the majority held that due process need not be limited to the views of the Framers in 1787, but can recognize "our evolving understanding of liberty."

The court's originalists, predictably, were not pleased. Roberts notes that "legislature" is used throughout the Constitution, without ambiguity. If it could have been read as relating to direct democracy, Roberts writes, there would have been no need for the Seventeenth Amendment.

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