WASHINGTON — The Supreme Court ruled on Monday that Arizona’s voters were entitled to try to make the process of drawing congressional district lines less partisan by creating an independent redistricting commission.
Justice Ruth Bader Ginsburg, writing for the majority in the 5-to-4 decision, endorsed what she called “an endeavor by Arizona voters to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.”
Now, you would think that this should have been a 9-0 decision, but no, it was a divided decision in which the conservatives declared in unison that you, the voter, should not have the right to pass laws that limit a Legislature by referendum. They further had to rule that the voters of a particular State could not rely on the Tenth Amendment to say that a State had the right to choose internally how to manage some of its internal affairs, but were totally dependent on the Legislature for any change that was wanted. That’s right, conservative justices argued against the right of the people to choose how their government would run, and the right of a State to run its own internal affairs. Fortunately for us, they were in the minority.
So what was so bad? Well gerrymandering is a term that originated in 1812. It applies to the year after a census, when the Legislature, by Constitutional mandate, redraws the boundary lines of voting districts. Within 30 years of the approval of the USA Constitution, legislators quickly figured out that if they had the majority, the majority could redraw the districts so as to maximize the power of their party, even if they disenfranchised many voters. It was mockingly called a gerrymander, and then became the term gerrymandering. It was possible to turn a numerical majority into a minority. Even if you had 60% of the registered voters, gerrymandering permitted the other party to limit you to 40% of the seats by the clever drawing of long, meandering, district lines.
Arizona was a state that had that problem. It is actually a purple state, not precisely one color or the other. But the gerrymandering had turned it into a seemingly purely conservative state. In order to combat that, the people gathered enough signatures for a referendum and changed State law to take the drawing of district lines out of the hands of the Legislature and put it into a non-partisan commission. As a result, one time the people elected 5 Republicans and 4 Democrats, but the next election it reversed to 5 Democrats and 4 Republicans. In other words, the commission did a good job, in comparison to the number of registered voters (remember, it is a purple state by voter registration).
But, those crazy Legislators! They actually appealed to the Supreme Court on the grounds that the USA Constitution said “Legislature” and that this meant that the people had no right to take a misused power away from them! The Legislators actually argued that, though they were elected by the people, that the people did not have the right to change the State Constitution because the US Constitution used the word “Legislature.” The Legislators also argued that we have a representative government, not a republican government, and that this meant that the people could not take powers away from the Legislature. Amazingly enough, the conservative group in the Supreme Court agreed with that.
Fortunately a bare majority of the Supreme Court argued that the people, acting through ballot initiatives, do constitute a legislating body, and therefore are qualified to be considered as a Legislature of the whole rather than a representative Legislature. As such, they fell under the Constitutional writings that said that the Legislature draws the lines, whether a representative Legislature or a Legislature of the whole, in other words a republican Legislature. Moreover, the right of the people to redress their grievances by a vote of the people could not simply be taken away by arguing that they do not truly have the power to bring significant change on the grounds that they are not specifically elected representatives.
In a joint statement, the speaker of the Arizona House, David Gowan, and the Senate president, Andy Biggs, both Republicans, said: “We are disappointed that the Supreme Court has decided to depart from clear language of the Constitution. The Framers selected the elected representatives of the people to conduct congressional redistricting. It’s unfortunate that the clear constitutional design has been demolished in Arizona by five lawyers at the high court.”
At this point, it might be well worth while to quote Thomas Paine:
The only ground upon which exclusion from the right of voting is consistent with justice would be to inflict it as a punishment for a certain time upon those who should propose to take away that right from others. The right of voting for representatives is the primary right by which other rights are protected.
To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case. The proposal therefore to disfranchise any class of men is as criminal as the proposal to take away property.
Thomas Paine was talking about various ways to disenfranchise people at the ballot box. Gerrymandering did not exist when he wrote, but the poll tax, the requirement to own property, etc., already existed. In the full passage from which I quoted, he argued that any attempt to dismiss, minimize, or dilute the vote of any person, “is to reduce a man to slavery, for slavery consists in being subject to the will of another … .” Thus any State which so draws its lines so as to dilute the vote of any particular group is enslaving that group to the will of another by guaranteeing that they will not have a full representative control of their future. This does not mean that the minimized group would have had the majority, but rather that they do not have the full number of representatives to which they are entitled. Nor do they then have the full opportunity to influence laws, though they be the minority. This is called enslavement by Thomas Paine.
If we are going to argue the right of the people in a locality to choose, then we have to admit that it applies to as many laws as are not assigned to the federal government. We cannot pick and choose, saying that we support local initiative when we agree with it, and are against it when we disagree with it. We need to choose a clear philosophy of government, and stick with it, even when we lose some votes. Sophistry has no place in our argumentative scheme. In both this case, and another one decided this week by the Supreme Court, the arguments against have been sophistry and playing with words.
When the majority stated that, in context, those words could not mean what the plaintiffs thought they meant, the cry was promptly raised by the minority that the justices were ignoring the USA Constitution. But, the majority made their argument based on original intent. For instance, in this case, the majority argued that the clear original intent of the Founding Fathers (see the Thomas Paine quote above) could not have been that the people were forbidden from controlling the misdeeds of a State Legislature, and were forbidden from ensuring that all votes were equal. Therefore, the USA Constitution could not be so interpreted as to forbid the people, in free republican vote, from changing a State Constitution (provided that a republican form of government was maintained). What is risible is that those who agree with the plaintiffs (conservatives) have been arguing for original intent for a couple of decades! I guess original intent only counts when it favors your viewpoint!
Remember, one of the clauses in the USA Constitution is that part of the job of the federal government is to ensure that each and every State have a republican form of government. “The United States shall guarantee to every State in this Union a Republican Form of Government … ,” Article IV, Section 4, USA Constitution. Look up what a Republican Form of Government is, “one in which the powers of sovereignty are vested in the people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated.” Sovereignty is vested in the people and is exercised by the people, who may choose to exercise it directly rather than through representatives chosen by the people. In trying to deny the direct vote of the people, the conservative legislators in Arizona proved that they are not truly republican.