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Trial Lawyers' Underappreciated Power Over 'Independent Redistricting Commissions'

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The Supreme Court's recent decision in King v. Burwell wasn't the only one in which it twisted clear language to protect the progressive political agenda. In another case, the Supreme Court redefined the word "legislature" to include unaccountable, undemocratic bodies under the influence of trial lawyers.

The Constitution's Elections Clause states that the "Times, Places, and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." But in a 5-4 decision, the Court upheld an Arizona system, created by a voter referendum in 2000, in which an independent commission makes redistricting decisions instead. As election-law expert Hans Von Spakovsky notes, the Court's majority dubiously "claims that while redistricting is a legislative function, there is no constitutional barrier to a state's empowerment of its people by embracing the referendum as a form of lawmaking."

And in addition to violating the Constitution, Arizona's system is bad policy. Far from being independent, the commission has proven to be a reliable ally of the Democratic party — a predictable result, given that the body is made up of candidates selected by left-leaning lawyers. If you are going to have gerrymandering of congressional districts, it might as well be done by a state legislature, which is accountable to the people, rather than a commission like this, which is not.

The pattern of bias is clear enough. For example, the commission gave Democratic votes more weight than Republican votes by packing more people into Republican-leaning districts. Although Arizona has not voted for a Democrat for president since 1996, and both of its senators are Republicans, until recently five of Arizona's nine representatives were Democrats, and even today, four of the nine are Democrats. Random, nonpartisan redistricting would lead to fewer Democratic representatives in Arizona, especially given (as polling expert Nate Silver has explained) how Democratic voters tend to be heavily concentrated in urban areas.

And as Chief Justice Roberts noted in is dissent,

The facts described in a recent opinion by a three-judge District Court detail the partisanship that has affected the Commission on issues ranging from staffing decisions to drawing the district lines. ... The per curiam opinion explained that "partisanship played some role in the design of the map," that "some of the commissioners were motivated in part in some of the linedrawing decisions by a desire to improve Democratic prospects in the affected districts," and that the Commission retained a mapping consultant that "had worked for Democratic, independent, and nonpartisan campaigns, but no Republican campaigns.

Why would an independent committee in a red state favor the Democrats? Members of the commission have to be selected from, as the Washington Post described it, "a list of 25 people compiled by a group that also selects judicial candidates." These "judicial
nominating commissions," in Arizona and elsewhere, tend to be dominated by liberal lawyers. Thanks to its commission, Arizona has one of the nation's more liberal state judiciaries, even though the state is one of America's more conservative states.

That result is typical of states with such commissions. The Missouri courts, for example, have struck down tort-reform measures opposed by trial lawyers and supported by much of the business community, such as caps on punitive damages and non-economic damages, overwhelmingly passed by the state legislature.

The fact that the people may have voted to create this commission means little. The people cannot vote to give away democratic functions like congressional redistricting to unaccountable bodies, any more than they could authorize an unaccountable body to restrict free
speech, or give it the legislature's power to pass laws.

The Supreme Court has recognized this in the context of redistricting in the past. In Lucas v. Forty-Fourth Gen. Assembly of Colorado (1964), the Supreme Court rejected the argument that an apportionment plan that resulted in legislative districts' having substantially unequal populations could be upheld because the voters themselves had approved that legislative apportionment by a
popular referendum.

It rejected the argument that constitutional provisions could be waived by majority vote, and declared that "a citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be."