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SCOTUS Upholds Arizona Redistricting Commission

June 29th, 2015, 11:17am by Sam Wang

Update, 10:05pm: At Slate, Mark Joseph Stern thinks this case might be seen someday as the most important one of this Supreme Court term. I agree with him. -Sam

This morning, the US Supreme Court upheld a lower court’s decision on redistricting in Arizona. Ruth Bader Ginsburg penned the opinion. For anyone interested in redistricting, this is a big deal – and in my view, a good development, for reasons I wrote about in 2013. Here’s what happened…

In 2000, Arizona citizens voted for an initiative that took redistricting out of the hands of the legislature, and into the hands of a bipartisan commission. The Arizona legislature sued, on the grounds that the words of the Constitution state that determining representatives is in the hands of the “Legislature.” The counterargument is that based on precedent dating to 1916 and 1932, this clause in the Constitution has been construed as meaning the entire legislative process – which includes the citizen-driven initiative process.

Based on oral arguments back in March, the vote looked like it might potentially split along familiar lines: Democratic-appointed justices (Kagan, Sotomayor, Breyer, Ginsburg) voting to uphold precedent and keep the commissions, and Republican-appointed justices (Roberts, Scalia, Alito, and Thomas) to read the Constitution more narrowly, and overturn. Roughly speaking, partisan leaning (D vs. R), the stated judicial philosophy (a living Constitution vs. a literal reading), and the patterns of recent years (sticking with precedent v. willingness to revisit old issues) all coincided. So a 4-4 split among these eight Justices would not be surprising*.

The wild card was Justice Anthony Kennedy. Kennedy is the justice to watch in other redistricting cases, most notably Vieth v. Jubelirer, in which he gave his view that partisan gerrymandering was justiciable (i.e. SCOTUS could look at it), but that a standard had not yet been met. I am still educating myself on his opinions, but I would construe his stance there as being open to reforms, and persuadable. In oral arguments, Kennedy went back and forth a bit. SCOTUSblog, whose coverage of the Court is incomparable, has the history of the case. In their description, Kennedy was apparently concerned about whether abolishing the commissions would have a broader effect on other election laws that come from voters, all of which rely on past precedents. Justice Kagan picked up on this theme. But Kennedy also pointed out that elsewhere in the Constitution, where the election of Senators is described “the Legislature” was clearly literal, and was changed only by the Seventeenth Amendment, which mandated direct popular elections. In short, Kennedy’s vote was very much up in the air.

Over at FantasySCOTUS, which believe it or not is an electronic market of amateur Supreme Court prognosticators, the wisdom of the crowd had the Arizona Legislature winning, 5-4. However, the top three prognosticators, who had an overall track record of about 93% correct, all said Kennedy would vote with the Commission. As it turns out, these three SCOTUS nerds – jamesandrew24, HashimMM, and the famous-to-true-SCOTUS-nerds Melech – were right about his vote.

Here is a link to the decision itself. On page 24, the Court points out that at the time of the writing of the Constitution, “legislature” meant not just the chamber that made laws, but “[t]he power that makes laws.” That point addresses the heart of the Arizona Legislature’s case. There is much more. The general gist is that nonpartisan commissions are a vehicle for exerting the will of the people, and that this route still stands.

I view Kennedy’s vote with the Democratic-appointed wing as being consistent with his general stance on redistricting law. This is a big deal because, as I wrote in 2013, citizen-driven redistricting commissions are perhaps the best avenue for those who want to address the aggressive use of the districting power. In closely-contested states, such districting can draw House (and state legislative) election outcomes far from natural, historical norms. Today, reformers should celebrate.

*The vote was 5-4 in the usual sense: five justices signed the majority opinion, and four signed the principal dissent (by Roberts, with Scalia, Alito, and Roberts concurring). Some would construe the vote as 7-2 because Scalia and Thomas wrote separately saying they thought the Arizona legislature lacked standing. However, that seems like them just being cranky, to use a layman’s term [see Pechmerle for actual explanation].

Tags: 2016 Election · House · Redistricting

21 Comments so far ↓

  • Jack Tenold

    Hi Sam,

    Great to hear from you. I was afraid you were gone forever, and I was beginning to go into withdrawal symptoms.

  • pechmerle

    Re Scalia and Alito dissenting separately to argue that AZ Legislature lacked standing: that’s not these two guys just being cranky. If AZ Legislature as plaintiff lacked standing, then the appeal should not have been heard by the Supremes (technical terms: petition for certiorari would have been improvidently granted). That would have left the AZ commission in place. But it would also have left the constitutional question unanswered, so that the right wing of the court could have lived to fight another day on that issue.

  • Amitabh Lath

    First, how many other states have (or could have) such bipartisan commissions? Second, even if they are bipartisan, the members are probably chosen by elected officials, and currently elected Dems and Reps both have a vested interest in keeping the system highly gerrymandered.

    • Sam Wang

      California has such a commission. It had the rather impressive effect of making many districts competitive and unseating some incumbents. The result was a delegation that was still not distorted relative to the usual nonlinearities of seats vs. votes (which is itself not linear, at baseline, but one can calculate what it ought to be). The key is to find a way to avoid making things worse or distorted, which is what happens in VA/NC/PA/OH/MI/IL. So the concept can be made to work.

  • Amitabh Lath

    Is there a quantitative metric for how gerrymandered a state is? Looking at our own garden state’s 2014 election returns I noticed both D and R congressmen were elected with comfortable margins. My own rep, Pallone, got about 60% of the vote which does not feel very competetive.

    So is NJ a highly gerrymandered state or is this just the natural order (blue in the center, red in the north and south)?

    • Sam Wang

      Well, in fact I am working on this right now. One can define a typical curve by examining the distribution of districts nationwide, then integrating that to calculate an average seats-votes curve. The confidence interval on that can be approximated or simulated exactly. My goal is to express this goal so simply that high school algebra is sufficient to understand it.

      If you are interested, I can send you a draft. I am working against the clock because there’s a gerrymandering case before SCOTUS next year. I want to get the paper out before they deliberate on that case.

      In regard to Pallone, 60% is actually not a tell of gerrymandering, at least at the state level. It could be indicative that somebody is protecting him individually, but that is a somewhat different issue. To get a feeling for what nongerrymandering looks like, look at CA or NY, where a nonpartisan commission and a special master, respectively, drew districts to make them competitive and not too lopsided.

    • Amitabh Lath

      Sure, I’d love to see the draft. Nationwide average sounds like a good denominator. Simple metrics are best, especially if you also want to calculate an uncertainty on the metric.

  • SF Bays

    I live in CA and voted for the commission. Citizens could apply to be on it. My neighbor applied. He didn’t get it, but there were thousands who applied and the boundaries are drawn more compactly and representative of similar areas. For example farming areas are kept together and not lumped into a mostly urban area, which previously would make their vote essentially ignored by it’s some numbers. My district ran in a narrow irregularly drawn band from the SF Bay area to the Nevada border. The liberals were completely outnumbered by conservatives, essentially eliminating my vote. My house district is now much more competitive.

  • SF Bays

    Here are the specific details on how the members of the commission.
    “Interested parties submitted their application online. Applicants who met the qualifications in the Act and did not have a “conflict of interest” were invited to submit a supplemental application in which they answered essay questions providing insight into their professional experience, awareness of California’s diversity, and their reasons for wanting to serve on the Commission.

    Three independent auditors from the Bureau of State Audits reviewed the applications and selected 120 of the most qualified applicants to be interviewed in Sacramento. The 120 applicants were divided into 3 sub-pools: 40 Democrats, 40 Republicans, and 40 who were neither Democrats nor Republicans.

    Following the interviews, the total pool was reduced to 60, again with equal sub-pools. Those 60 names were sent to the leadership of both houses of the Legislature, where the leaders exercised their right under the Act to remove up to 24 applicants from the pool.

    On November 18, 2010, the State Auditor randomly drew the names of 3 Democrats, 3 Republicans and 2 Decline to State applicants and they became the first 8 members of the Commission. Subsequently, on December 15, 2010, the first 8 selected the final 6 commissioners, choosing 2 Democrats, 2 Republicans and 2 Decline to State.”


  • Art Brown

    Thanks for this post; I hadn’t noticed much coverage. Off topic, but when do you expect to start handicapping the 2016 Senate races? I’m getting deluged with fund-raising emails (and hold you partially responsible, since I donated last time exclusively via your link ;-) ).

  • Amitabh Lath

    Hi Sam, everyone, I wanted to get your opinion on why Trump’s candidacy is being treated so differently than all the others (especially compared to those of the other front runners).

    As far as I can tell, the candidates speak words into microphones, and then people decide who to pull the lever for. It appears Trump’s words are working by this metric.

    However, the (largely east coast) media personalities seem to discount Trump. This seems to be based on the content of his words rather than any deep understanding of the Republican primary voter. I confess I do not have any understanding of this subgroup either but I do not go so far as to ascribe my biases to them.

    Once in my youth I was being too aggressive with data filters, I was told “do not tell the data how to behave”. What I see now (for example Huffington Post deciding Trump belongs in the entertainment and not politics section) is just that.

    • pechmerle

      Amitabh, I think the likely reason for this is that Trump talks running, but rarely actually does it. From Wikipedia:

      “Trump floated the idea of running for president in 1988, 2004, and 2012, and for governor of New York in 2006 and 2014, but did not enter those races.” He did run in a presidential primary in 2000, but it was a minor party — the Reform Party. He won that party’s California primary but not the overall national nomination. In fact, before the convention he withdrew from the contest for the nomination because there was such severe infighting between supporters and opponents of Pat Buchanan.

      So I think the obvious reason that the media do not interpret him as a serious candidate is that he mostly doesn’t act like one. This is based not on his words, but his conduct. They are not ‘telling the data how to behave.’ Trump’s conduct is consistent with the media’s treatment of him — as a publicity hound who doesn’t really have the intention to subject himself to the rigors of seriously running for anything.

    • Sam Wang

      I agree with these statements. However, there is a numbers-based argument to be made: among Republicans, Trump is rated unfavorably by close to 40% of respondents. This is comparable to 2012 Newt Gingrich or Herman Cain as their candidacies crashed and burned. It seems likely that Trump would not be able to get >50% of the GOP vote.

  • Amitabh Lath

    Thanks pech, Sam. I understand the unfavorable ratings, but Gingrich and Cain were treated as credible second-tier candidates in 2012. Right now Trump seems to have connected to a solid subset of likely Republican primary voters, similar to the situation Santorum was in during the 2012 primary. But people are reaching beyond the numbers to form Trump’s narrative of failure.

    And yes, Trump does not “act” like a serious candidate.
    But it IS an act, for all of them. Trump’s act is just somewhat different. It is a throwback to the know-nothings, who once rode a similar hysteria about the sullying of the purity of our national character by immigrants (it was Irish catholics back then) to national prominence. I believe President Fillmore was part of that movement.

  • Olav Grinde

    I just spotted this article, although I had heard an interesting discussion on NPR underscoring the importance of this SCOTUS decision.

    Sam, great to be reading your blog posts again!
    Clearly I need to check this site more frequently.

  • Candy Swift

    I haven’t been checking this blog for a while. Welcome back Sam.

    I support this SCOTUS decision personally. The government has reasons to do so.

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