The Elections Clause of the U.S. Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof” unless Congress prescribes otherwise.1 Given the impor-tance of congressional district boundaries to the “Elections for . . . Representatives,” such boundaries are considered part of the “Times, Places and Manner” governed by the Elections Clause.2 As a result, state legislatures possess the power to redistrict, and gerrymandering — the manipulation of legislative district boundaries for political gain — often results from the exercise of that power.3 Last Term, in Arizona State Legislature v. Arizona Independent Redistricting Commission,4 the Supreme Court upheld an Arizona ballot measure that established a commission to craft district boundaries independently of the state legislature. An Arizona-type independent commission has several features that make it a particularly promising means of combating gerrymandering, and Arizona State Legislature preserves its viability. Even in the absence of constitutional doubt, redistricting-reform activists who attempt to implement such independent-commission systems may nonetheless encounter the claim that commissions are antidemocratic by virtue of being unelected — a charge leveled by Justice Thomas in dissent, and one that has been successfully deployed against efforts to implement similar commissions in the past. But this charge assumes that legislatures are indeed democratically accountable when conducting redistricting, and further ignores various features of these commission systems designed to advance democratic values.
Redistricting underwent several fundamental changes in the 1960s. Improvements in technology allowed cartographers to tailor districts for political advantage with increasing precision (often through analysis of partisan data),5 while the Supreme Court’s equal-population cases6 and the passage of the Voting Rights Act of 19657 established additional criteria to be considered in the process. Redistricting became increasingly litigious,8 and several states established redistricting commissions in response.9 Arizona is one state that saw its redistricting process reformed through popular initiative. The Arizona Constitution vests legislative authority primarily in the legislature, but reserves for the people an initiative right — “the power to propose laws and amendments to the constitution.”10 In 2000, the state’s voters exercised this power and approved Proposition 106,11 an initiative measure that amended the state constitution to establish the Arizona Independent Redistricting Commission (AIRC).12 Proposition 106 took redistricting authority from the state legislature, vested it in the AIRC, and further constrained the redistricting process in two ways: First, it limited who could serve on the AIRC. Among other restrictions, members cannot have served in public office in the three years prior to appointment, and no more than two members on the five-member commission can be of the same political party.13 Second, it limited the criteria that the AIRC can (and cannot) consider when conducting redistricting. The Commission’s districts must comply with the U.S. Constitution and the Voting Rights Act and conform, “to the extent practicable,”14 to “traditional redistricting principles”15 such as compactness, contiguity, and respect for existing political subdivisions.16 However, party registration and voting history data, often relied upon by state legislatures in conducting redistricting, can be used only to “test maps for compliance” with enumerated criteria, and information about incumbent and candidate residences cannot be considered at all.17
The AIRC was reconvened following the 2010 Census18 and finalized its congressional redistricting plan in January 2012.19 Shortly thereafter, the Arizona State Legislature (the Legislature) filed suit in U.S. District Court for the District of Arizona,20 seeking a declaratory judgment that Proposition 106 violated the Elections Clause and an injunction against the implementation of the Commission’s congressional districting plan.21 A three-judge panel heard the case22 and divided on the constitutionality of the AIRC.23 Writing for the majority, Judge Snow24 held that Proposition 106 did not violate the Elections Clause.25 He reasoned that Supreme Court precedent “demonstrate[d] that the word ‘Legislature’ in the Elections Clause refers to the legislative process used in that state, determined by that state’s own constitution and laws,”26 and that Arizona had “multiple avenues for lawmaking and one of those avenues is the ballot initiative.”27 Therefore, the Commission “was created through the legislative power,” and it “exercise[d] the state’s legislative power” — as the Elections Clause requires — in conducting its operations.28
The Supreme Court affirmed. Writing for the Court, Justice Ginsburg29 first addressed the Legislature’s standing. Because Proposition 106 “strips the Legislature of its alleged prerogative to initiate redistricting,” the Legislature had suffered an injury that was sufficiently concrete and redressable.30 Proceeding to the merits,31 the Court reviewed the precedent “relating to appropriate state decisionmakers for redistricting purposes,”32 which established that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”33 A state’s legislative processes could involve actors other than the legislature, such as the Governor (through a veto) and the voters (through a referendum),34 and such legislative functions should be distinguished from “instances in which the Constitution calls upon state legislatures to exercise a function other than lawmaking,” such as the appointment of U.S. Senators prior to the passage of the Seventeenth Amendment.35
Turning to the Elections Clause specifically, the Court reasoned that the term “Legislature” was “capaciously define[d]” to be “[t]he power that makes laws.”36 Because the Arizona Constitution reserved some legislative power to the people, voter-passed initiatives “legislate for the State just as measures passed by the [Legislature] do.”37 Therefore, the delegation of redistricting power to the AIRC, albeit accomplished through Proposition 106 and not an act of the Legislature, was nonetheless valid.38 This interpretation of the Elections Clause not only was consistent with “[t]he dominant purpose of the Elections Clause” of “empower[ing] Congress to override state election rules,”39 but also better preserved the “autonomy [of states] to establish their own governmental processes.”40 The opposite interpretation, by contrast, would impede efforts to combat gerrymandering, which were exercises of “[t]he people’s ultimate sovereignty.”41
Chief Justice Roberts42 dissented. He criticized the majority’s holding as having “no basis in the text, structure, or history of the Constitution.”43 “Legislature” meant a representative body — an interpretation confirmed by not only various Founding-era sources,44 but also the numerous other uses of “Legislature” throughout the Constitution.45 The majority’s interpretation of “the constitutional term ‘the Legislature’ to mean ‘the people’” was a “magic trick”46 that rendered the effort behind the ratification of the Seventeenth Amendment “an 86-year waste of time.”47 The majority had unsustainably stretched the Court’s precedent, which permitted the “imposing [of] some constraints on the legislature” in the redistricting process such as voter referenda and gubernatorial vetoes, mechanisms that “supplement[ed]” the legislature’s role but did not “supplant” it entirely.48
Chief Justice Roberts further challenged the majority’s “naked appeals to public policy”49 and its “greater concern about redistricting practices than about the meaning of the Constitution.”50 Such concern was largely unfounded: not only would “most other redistricting commissions” be unaffected by the invalidation of Proposition 106,51 but Proposition 106’s vesting of state legislative redistricting power in the AIRC would also be unaffected, leaving a mechanism by which “the work of the Commission [would] continue to influence Arizona’s federal representation.”52 Finally, the Chief Justice registered his doubts about the independence of the Commission — an “unelected, unaccountable institution” — noting allegations that political bias against Republicans had influenced the Commission’s decisionmaking.53
Justice Scalia54 also dissented. He noted his view that “the majority’s resolution of the merits question [was] outrageously wrong,”55 but focused on his belief that the Legislature lacked standing because its suit was a “[d]ispute[] between governmental branches or departments regarding the allocation of political power” and therefore not a “case” or “controversy” as required under Article III.56
Justice Thomas57 penned a third dissent agreeing with Chief Justice Roberts on the interpretation of the Elections Clause and with Justice Scalia on lack of standing,58 but arguing primarily that the Court’s attempt to be “a great defender of direct democracy” was unconvincing given its “tradition of disdain for state ballot initiatives.”59 The Court’s treatment of Proposition 106 was particularly ironic, as the initiative “was unusually democracy-reducing”: it took control of the redistricting process from the (elected) Legislature and handed it to the (unelected) AIRC, “thereby reducing democratic control over the process in the future.”60 Proposition 106 was not “direct democracy at its best,”61 but more closely resembled “a plebiscite in a ‘banana republic’ that installs a strongman as President for Life.”62
By upholding the constitutionality of redistricting processes that are undertaken by independent commissions free from any legislative involvement (or interference), Arizona State Legislature preserved the viability of a promising method of limiting gerrymandering. With independent commissions now bearing the Court’s seal of constitutional approval, redistricting-reform activists may seek their implementation in additional states — especially those in which the people are delegated legislative authority by their state constitutions. These efforts will encounter the response, as made by Justice Thomas in dissent and alluded to in passing by the Chief Justice, that commissions undemocratically “take districting away from the people’s representatives and give it to an unelected committee.”63 But a closer examination of independent-commission systems already in place reveals numerous features that undermine this contention. These features establish the democratic pedigree of independent commissions and can be highlighted when democratic concerns are raised by commission opponents.
The AIRC is characterized by its independence from the legislature, its membership limitations and operating procedure, and the constraints on criteria that it may consider. Indeed, the California Citizens Redistricting Commission (CCRC) — which was also established through popular initiative — incorporates these features as well;64 both the CCRC and the AIRC have been cited by scholars as models of reform.65 Independent-commission systems are still in their infancy — the AIRC has conducted only two rounds of redistricting, and the CCRC is but one cycle old — but studies have suggested that districts drawn by independent commissions tend to be more compact.66 Further, independent commissions are better able to “deliver district maps on time, and largely without legal contestation.”67 While some scholars have doubted whether commission-drawn maps are more competitive, noting the lack of increase in the number of “competitive districts” that both parties could plausibly win,68 this lack of change may have been due to increased political polarization (in the form of geographic self-sorting) within the electorate.69 That is, without an independent commission, the number of competitive districts might have decreased; instead, the commission-drawn maps may have helped stave off such a decline.
Given these advantages, and the Arizona State Legislature stamp of constitutional approval, redistricting-reform activists are likely to pursue independent commissions moving forward.70 Though commissions are a promising means of reform, there is the democracy problem that Justice Thomas noted in dissent — legislatures that would regularly conduct redistricting are popularly elected, but the independent commissions displacing them are not. Independent-commission opponents have consistently channeled this concern in their advocacy: Opponents of Proposition 106 warned (unsuccessfully) that if the initiative were approved, “unelected, unaccountable lawyers will have more power than anyone else in the redistricting process.”71 Independent-commission opponents in Ohio characterized an independent commission proposed in 2012 as “Unelected, Unaccountable and Unacceptable.”72 Groups opposing the establishment of the CCRC argued that the commission would “undermine[] democracy” and “give[] power to bureaucrats.”73
This argument presupposes that redistricting is more democratic when left to a state legislature. But a state legislature is not necessarily more accountable than a commission,74 or more representative than one.75 Further, the legislature may not even be able to conduct redistricting at all. Many redistricting plans end up crafted by courts — institutions that are often deliberately insulated76 — when legislatures are unable to fulfill their redistricting responsibilities.77 But even accepting this presupposition, the origins, structure, and oversight of independent commissions demonstrate that such concerns about democracy and accountability, expressed by both Chief Justice Roberts and Justice Thomas, are misplaced.
Most fundamentally, the commissions’ origins provide a first defense from the standpoint of democracy. As the Arizona State Legislature Court emphasized, the creation of an independent commission through an initiative is itself an exercise of democratic power.78 Indeed, given the frequency with which democratic accountability is raised as an argument against commissions,79 voters must be presumed to have been aware of this potential problem when voting on their implementation — and yet supported that implementation all the same.
Beyond their democratic origins, the structure of independent commissions ensures that their democratic legitimacy is not lost after their creation. As a starting point, an independent commission’s independence removes the legislative conflict of interest, under which legislators are not so much (democratically) elected by their constituents, but (antidemocratically) select their constituents.80 By pairing a political diversity requirement in commission membership with a supermajority requirement for any commission action, an independent commission prevents unilateral partisan control (which would be inherently unrepresentative).81 Further, the prescription of various criteria that the commission must consider limits discretion that a commission may have in mapmaking, thereby limiting the potential that such discretion may be abused.82 And in practice, both the AIRC and CCRC have conducted numerous public hearings and provided extensive opportunities for public participation — opportunities that legislatures may not provide.83 Each of these features demonstrates a way in which commissions may better protect democratic values than legislatures do.
Finally, voters maintain considerable oversight over commissions — they are hardly the “banana republic” coronation to which Justice Thomas analogized. In Arizona, as Chief Justice Roberts noted, the Governor and state Senate may jointly remove members of the AIRC,84 leaving means by which voters can hold commissioners accountable through more conventional institutions of representative democracy.85 In California, this oversight power is more direct: voters may seek a referendum on any plan implemented by the CCRC,86 and did exactly that in seeking popular review of the CCRC’s post-2010 redistricting of the state Senate.87 And further, just as voters can establish commissions, they can abolish them. Should voters find that an independent commission is insufficiently accountable, they can restore legislative control by the same means through which change was effected — through action at the ballot box.
With the major hurdle of constitutionality cleared by Arizona State Legislature, the expansion of independent-commission systems as a means of curbing gerrymandering now faces the more mundane challenge of political acceptance. To the extent that the democratic-accountability concerns, as referenced by Chief Justice Roberts and emphasized by Justice Thomas, animate opposition, various features of independent-commission systems already in place could be emphasized to address those concerns — and possibly pave the way for the adoption of more independent-commission systems nationwide.