California Redistricting Commission in Jeopardy at US Supreme Court

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

The key question the United States Supreme Court must address in deciding if state voters can create redistricting commissions for congressional districts is whether the people can be considered legislators when they create laws through the initiative process. It goes to the heart of the initiative power, which voters in both California and Arizona used to create citizens redistricting commissions.

The United Stated Supreme Court agreed to hear an appeal from the Arizona legislature seeking to overturn an appellate court decision affirming the power of Arizona voters to set up a redistricting commission. California voters took the same approach in wresting power away from legislators to draw the lines for congressional as well as state legislative districts.

Arizona’s legislature argued that only the legislature can draw congressional district lines. They point to the United States Constitution which states that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

The attorney for Arizona called the initiative creating the commission a “radical measure.”

I recall reading that the New York Times used the same term about the initiative process itself when California voters approved direct democracy in 1911.

In California, at least, the initiative power is considered on par with the legislative power. In fact, the initiative power appears ahead of the section dealing with the legislative power in the state constitution. Article 2, Section 1 states that, “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.” Legislative power appears in Article 4 in the California constitution and even then Section 1 of Article 4 says that the people’s initiative power may equally use legislative power: “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.” Of course, the United States Supreme Court does not have to take state constitutions into consideration when deciding federal issues.

However, the U.S. Constitution also acknowledges the power of the people in the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The power to draw district lines was not delegated to the United States. While the power to draw lines is to be “prescribed” by the legislature of each state according to the federal constitution, there is no prohibition involved thus reserving the power to the states, (meaning the legislatures that carry out the power), or to the people.

California has to be concerned how the Supreme Court rules in the Arizona case.

Kathay Feng, Executive Director of California Common Cause, a prime mover behind the redistricting commission in California, told me Common Cause plans to offer an amicus brief in the case. “Common Cause will support Arizona voters’ right to create an independent redistricting commission.  We will urge the Supreme Court to protect the will of the people who have decided they want an impartial alternative to the state legislature manipulating elections,” Feng said.

I’m not a legal scholar, but it appears the clause in the 10th Amendment means it can be either the legislature representing a state or the people who have the power to legislate.

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