Nick Krieger (@nckrieger):
As state legislatures around the country have become increasingly partisan and discordant, several states have created independent commissions to draw their Congressional district lines. For instance, Congressional districts in Arizona are not drawn by the state legislature, but by a bipartisan redistricting commission made up of an equal number of Republicans and Democrats. This process tends to ensure that the state’s Congressional districts are fair, competitive, as compact as possible, and not drawn for purely partisan reasons.
But this practice might soon come to a screeching halt. The Arizona Legislature has argued that it—and not the bipartisan redistricting commission—has the sole power to draw Arizona’s Congressional districts under the Elections Clause of the United States Constitution.
The Elections Clause, which is set forth in Article I, Section 4 of the United States 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; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
While it may not be immediately self-evident from this language, the United States Supreme Court appears poised to interpret the Elections Clause as granting state legislatures the exclusive right to redraw Congressional districts in their respective states. Such a judicial decision would sound the death knell for bipartisan redistricting commissions such as the one in Arizona.
What does this mean? State legislatures no longer seem interested in drawing square, compact, or competitive Congressional districts. Instead, as the process of redistricting in Michigan has taught us, Republican-controlled state legislatures draw Congressional district boundaries with one purpose in mind: to maximize the number of majority-Republican seats. Similarly, state legislatures dominated by Democrats draw Congressional district lines to maximize the number of Democratic seats. This practice, known as partisan gerrymandering, enables a state legislature to virtually guarantee the outcome of the state’s Congressional elections for the ensuing 10 years.
By summer, the Supreme Court will hand down its decision and we’ll know the fate of bipartisan redistricting commissions like the one in Arizona. If the Supreme Court strikes down these redistricting commissions, are we simply left to the partisan machinations of politically motivated state legislators? Well, not necessarily.
There is a third option under the Elections Clause. While the first 22 words of the Elections Clause bestow upon state legislatures the general authority to draw Congressional districts in their respective states, the remainder of the Elections Clause specifies that Congress may “alter” this default rule and may, itself, enact uniform laws pertaining to the manner of choosing U.S. Representatives “at any time.” Under this language, Congress could enshrine in federal law the manner of drawing Congressional districts in every state, effectively removing the issue from the individual state legislatures and establishing a uniform set of redistricting rules that would apply equally across the country.
The Framers designed our federal system of government. They were careful not to intrude upon state sovereignty; they accordingly left to the state legislatures great authority to handle their own affairs. However, the Framers were also prescient. It is true that when the United States Constitution was drafted and ratified, the idea of modern political parties had not yet even emerged. But it almost seems as if the Framers anticipated the fierce partisanship that now dominates many of America’s state legislative bodies. They had the foresight to incorporate a specific escape provision into the language of the Elections Clause, allowing Congress to step in and supersede the authority of the state legislatures by establishing national, uniform rules governing the manner of electing U.S. Representatives “at any time.”
To paraphrase a common adage, the people—and not the politicians—should choose their elected representatives. To effectuate this goal, Congressional redistricting must be performed according to fair, nonpartisan methods in every state. If the Supreme Court ultimately invalidates independent redistricting commissions such as those in Arizona and several other states, Congress should act to prescribe uniform, nationwide rules for nonpartisan Congressional redistricting. Only Congress has the power to make it right.