An Arizona case before the U.S. Supreme Court that challenges the state’s ballot initiative created redistricting commission could have such an effect on California politics that three former California governors, noted California political scientists, and a California state commission have all filed briefs in the case.
California voters also approved ballot measures that took the power to draw district lines away from the legislature and gave it to an independent commission. Proposition 11 in 2008 created the Commission to draw state legislative districts, Proposition 20 in 2010 allowed the commission to draw congressional districts. If the Arizona legislature were successful in court banning the commission more than the redistricting commissions would fall. Ultimately, the entire initiative process could be endangered.
The Arizona legislature is counting on the court to take Article 1 Section 4 of the United States Constitution at face value, that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”
In other words, only the legislature itself can create district lines, lawyers for the legislature claim. Reform movements in the Grand Canyon State and the Golden State rebelled against this authority arguing that legislators have a conflict of interest in setting up legislative districts, rigging the system and drawing districts that often resemble modern art paintings all in an effort to assure sitting legislators re-elections or maintaining the ruling party in power.
The court must decide if legislative power resides only with elected legislators. In the brief filed on behalf of former California governors George Deukmejian, Pete Wilson and Arnold Schwarzenegger, the definition of “legislature” is taken from Samuel Johnson’s famous 1755 dictionary to mean “[t]he power that makes laws.” The brief argues that congressional redistricting can be undertaken “by whatever lawmaking body the people of a State decide to vest with that power.”
The California Citizens Redistricting Commission brief reminds the court that in the state constitution, “All political power is inherent in the people.” Through the initiative process in California and Arizona, “both the people of the state and the elected state representatives are lawmaking bodies, both constitute the “Legislature” for purposes of the Elections Clause.”
Not just the power to redistrict is in jeopardy if the Supreme Court sides with the Arizona legislators say California political scientists at Stanford and UC Irvine in their brief. Other election reforms including California’s open primary and even direct primaries themselves may be in peril.
Take it one step further and a ruling by the Supreme Court striking down the power of initiative to supplant the legislature in redistricting just might open the door for the Supreme Court to consider a challenge to the initiative process itself.
Such a challenge is slowly working its way in the federal courts out of Colorado.
Former Colorado legislators argue in Kerr vs. Hickenlooper that the U.S. Constitution’s clause guaranteeing states a Republican form of government is violated by giving power to the people to make laws, and specifically in the Colorado instance, to vote on tax measures.
Attempting to undercut the initiative process by arguing that measures put on the ballot by the people violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.
Many legal experts thought the Colorado case would be dismissed because the issue was non-justiciable—meaning an issue over which the court cannot exercise its judicial authority. However, the Tenth Circuit Court agreed to allow the case to proceed although the defenders of the initiative are asking the Supreme Court to review that decision.
The way the people of California have chosen to govern themselves will be tested by these Supreme Court rulings dealing first with the Election Clause, and, perhaps, ultimately, the Guarantee Clause of the United States Constitution.
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