AZ redistricting format upheld, changes still possible

David Berman
June 30, 2015

The U.S. Supreme Court surprised many observers on June 29 by upholding the right of Arizona’s five-member Independent Redistricting Commission (IRC) to draw congressional districts. But change may still be in order.

The closely watched case began when Arizona Republican legislative leaders challenged an initiative measure amending the state constitution. The ballot proposition was approved by 56 percent of the voters in 2000 and took the redistricting function away from the Legislature and gave it to the IRC. 

The IRC drew congressional district lines following the 2000 census without any challenge to its authority to do so. Republican legislative leaders, however, took legal action when the IRC created new districts after the 2010 census that they viewed as unfairly benefitting Democratic candidates.  

When IRC district boundaries were first employed in the 2012 elections, Democrats won five of the nine seats. In 2014, however, Republicans won one of the previously held Democratic seats and Arizona’s congressional delegation became 5-4, favoring Republicans. 

Going to court, lawyers for the GOP legislative leaders argued that under the U.S. Constitution only state legislatures can carve up congressional districts, and that this power cannot be taken away from legislators by a vote of the people. U.S. Supreme Court Justice Ruth Bader Ginsburg, writing for the 5-4 majority in the case of Arizona State Legislature v. Arizona Independent Regulatory Commission, rejected that argument.

The majority concluded that states had the constitutional authority to do the legislative task of redistricting through some entity other than the state legislature. In February 2014, a divided special three-judge panel of the federal district court in Arizona took a similar position in rejecting the Legislature’s case.

It was widely expected that if the court ruled in favor of the Arizona Legislature, the Republican-led body would have moved to redraw district lines to the disadvantage of the Democrats and do so in time for the 2016 election. 

The high court’s decision is expected to produce more ballot measures around the country calling for the establishment of similar commissions. Such moves already were underway in Florida and Illinois before the court’s decision. Six states, including California, currently have commissions with powers similar to that of the commission in Arizona.

As far as the Arizona IRC is concerned, several suggestions have been made as to how its operation might be improved.

The five-member commission presently consists of two Democrats, two Republicans and one independent member, who serves as chair. One idea that may have considerable merit is to increase the size of the commission to nine members – three Democrats, three Republicans, and three independents with one of the independents chosen as chair by all the others.

This proposed change could help reduce the pressure on the chair and encourage a greater willingness to compromise among the other commissioners. It also would give more representation to independents, who are underrepresented on the commission. Independents outnumber both registered Republicans and Democrats, constituting more than a third of the registered voters but have only a fifth of the commission members. 

The commission has gone through the redistricting process twice and has provoked the anger of both parties. In 2001, Democrats viewed the plans adopted as victories for the Republicans. In 2011, Republicans viewed the plans adopted, especially the one for congressional districts, as victories for Democrats. Four commissioners, two on each side, seem to have been inclined to engage in winner-take-all partisan tactics. Compromise between the two sides has been elusive.

The single independent on the commission, the chairperson, often plays the pivotal role, casting the deciding vote of important matters, but he or she is likely to be condemned by commissioners representing the losing political party. Last time around, the proceedings were about as rancorous as possible, culminating in an unsuccessful attempt by Governor Jan Brewer to fire the IRC chair.

In creating the commission, Arizonans took a giant and widely applauded step toward opening up a process that had been largely hidden from public view and toward insulating redistricting from legislative interference.

The commission seems here to stay. Yet, as especially evidenced in 2011-12, more needs to be done to at least tone down the heated partisan anger that has characterized its proceedings.  Increasing the size of the body and giving greater representation to political independents might well heighten the possibility of bipartisanship and compromise. It could also lessen the possibility of contentious deliberations and the seemingly endless march to the courts.