In the space below, I preview a case to be argued in the Supreme Court next week, Harris v. Arizona Independent Redistricting Commission, that brings together many of the most contentious aspects of twenty-first century American democracy—dissatisfaction with elected officials, partisan zeal, racial equality, and federal–state relations.
The First Time the Arizona Commission Went to the Court
The case involves congressional district lines drawn by an independent districting commission—that is, an entity separate from a state’s regular elected legislature—in 2010 after the last Census. This independent commission was created by a direct democracy initiative adopted in Arizona in 2000 wherein voters who were dissatisfied by various historically prevalent gerrymandering techniques removed the job of drawing federal district lines from the elected legislature and gave it to a new body, one supposed to create districts for less partisan reasons.
A few years ago, the elected Arizona legislature sued to challenge the permissibility of the initiative itself, insofar as it cut the elected body out of the federal districting loop. That case made it all the way to the Supreme Court, and the Court decided last summer that the federal Constitution does not prevent a state from undertaking congressional districting by use of such independent commissions. (I provide much more background on that case, and explain why I think it reached the correct result, in a previous column.)
The Current Case Before the Justices
The Harris case pending before the Court now is a challenge not to the commission’s very existence, but to the particular district lines the commission has created. In particular, the plaintiffs—individual Arizona voters—complain that the commission “diluted or inflated the votes of almost two million American citizens when [it] intentionally and systematically overpopulated sixteen Republican districts while underpopulating eleven Democrat districts . . . with the intent of creating an advantage for the Democratic party.” In other words, the claim is that by creating congressional districts of unequal size for partisan reasons, the commission violated the “one-person, one-vote” requirement of the Fourteenth Amendment.
The three-judge lower court in the case rejected the challenge. In a convoluted and divided set of decisions, it made a number of findings, including that partisan motivation was one but not the predominant reason the lines were drawn to create unequally sized districts, that the commission’s actions were driven by a desire to comply with federal Voting Rights Act (VRA) and implementing regulations, which were understood to require Arizona to take certain steps to increase the chances that racial-minority-preferred candidates could succeed in a sufficient number of congressional districts, and that the federal Fourteenth Amendment challenges were important enough that they should be resolved on the merits even though state constitutional challenges could possibly make irrelevant the federal disputes.
What Will, Should or Could the Court Do?
The Supreme Court accepted review, and next week will listen to both sides make oral arguments. It’s hard to know precisely what the Court will do, but a few aspects of the case warrant discussion. First, this case arrived at the Court via an appeal rather than through the ordinary route—a writ of certiorari. What that means is that the Court was under a greater obligation to hear this case—provided the claims raised were not patently weak—than it is in most cases (on which certiorari is sought). For that reason, we can’t infer very much about the Court’s attitude on the merits simply because the Court took the case up. (It is easy to infer too much about the Justices’ attitudes about the merits of a case on which they chose to grant certiorari as well, but at least in that setting the Court ordinarily has great latitude as to whether to accept review, so that, in many instances at least, some inferences about merits views are defensible.) It is possible, therefore, that the Court in Harris will overwhelmingly affirm the lower court and reject the challenge.
It is also possible that the Court will reverse the lower court’s decision to reach the merits of the federal constitutional claims at all. As intimated above, the plaintiffs attack the commission’s district drawing under the Arizona Constitution as well as under the federal Constitution. If the plaintiffs are correct in their reading of the Arizona Constitution, then they win their case regardless of whether they are right in their understandings of federal law. For that reason, some federal judges—and justices—might prefer to “abstain” (i.e., stay the federal proceedings) until after the state law claims have made their way through the state courts and been adjudicated finally, in which case the federal claims may end up (if the state law claims prevail) not needing to be resolved at all. Federal jurists who favor sparing use of federal power in these kinds of cases over oversight of state district drawing—and there may be some such folks at the high Court—might prefer to adopt such a “wait and see” attitude.
If the Court does reach and really engage the merits (as I expect it will), the justices will confront a number of questions. First, they will have to decide whether the deviations in size between the Arizona districts are large enough to care about. The commission’s brief points out that the Supreme Court’s one-person, one-vote jurisprudence has never insisted that all districts be of identical size, only that they be reasonably close, and that differences in size aren’t the function of impermissible factors. In the Harris case, the largest districts and the smallest districts vary less than 10 percent in overall population size, a margin that could fit within the acceptable band the Supreme Court cases have recognized.
But the plaintiffs’ rejoinder is that the problem here is not simply that some voters enjoy more clout than others because they live in districts with fewer people; it is that this enhanced clout was intended by the commission for partisan reasons. The partisan motive, the plaintiffs allege, take this case outside the realm of normal cases that permit some deviation in district size.
I think the difficulty here for the plaintiffs is that all district-drawing likely is motivated, at least in some measure, by partisan considerations, and all districts are somewhat unequally sized—you simply can’t have districts that contain hundreds of thousands of voters be literally equally sized. So if the plaintiffs’ theory boils down to the notion that all unequally sized districts motivated by partisan enthusiasm are unconstitutional, then most all districts are going to be invalidated. Indeed, the Supreme Court in Vieth v. Jubelirer (in 2004) and Gaffney v. Cummings a generation earlier (1973) consciously declined to try to assess whether partisan motivations played too large a role in the creation of district lines precisely because partisan motivations were invariably present, and deciding how much is too much is not a task the Court can undertake without generating arbitrary results that undermine confidence in its role.
To the extent that plaintiffs here try to avoid the teachings of those cases by pointing out that those disputes didn’t involve claims of unequally sized districts (and plaintiffs do say precisely that, conceding that “if the Commission had equally reapportioned Arizona voters into legislative districts for the partisan purpose of benefitting the Democrat party we would not be here”), the effort would seem unavailing, inasmuch as all districts are unequally sized to some extent, and we always need a threshold to decide how much population size inequality is too much to tolerate. And to the extent that plaintiffs are implicitly arguing that the threshold should be lower when a high level of partisan motivation may be at play, such an argument, if embraced, would pull the Court into precisely the arbitrary kind of line-drawing (no pun intended) that cases like Vieth vehemently resisted.
If the Court does end up deciding (as plaintiffs hope) that the size variation among the districts in Arizona is troublingly large, such that some justification other than partisan zeal is needed, the Court will then have to confront the relevance of the federal Voting Rights Act, which was intended by Congress to facilitate racial minority voting success. The complication here is that the VRA’s requirements with which the Arizona commission seems to have, in good faith, been trying to comply have since been deemed by the Supreme Court (in the Shelby County, Alabama v. Holder case in 2013) to be outdated and thus unconstitutional. So the question becomes, is an attempt to comply with a statutory mandate that does not in fact exist but that was reasonably thought to exist at the time district lines were drawn a sufficient justification for having unequally sized districts that otherwise would be constitutionally problematic? The answer would seem to depend on whether we care more about the state’s motives (in which case good faith reliance on the best understandings of the law in effect at the time diffuses any problem) or about whether the state’s justifications for size deviation in fact serve significant government purposes (in which case compliance with phantom statutory mandates seems less weighty). I think this is a complicated question, made trickier still (as the federal government points out in its amicus brief) by the fact that redrawing all the district lines that were created based on the way the Voting Rights Act was understood before the date Shelby County was decided (or before the date that Shelby’s reasoning suggests the VRA became constitutionally obsolete and thus infirm) would be daunting indeed.
It will be interesting to see in Harris how the oral argument unfolds.