Justice Anthony Kennedy of California is the key to the Arizona Legislature v. Arizona Independent Redistricting Commission case heard before the Supreme Court this week.  Sitting in the Supreme Court on Monday, I think he asked questions that suggest he is in the middle and could go either way.

John Myers of KQED, veteran California politics watcher, reminded us of Justice Kennedy’s California roots. Long before donning a judge’s robe, Justice Kennedy drafted an initiative for then-Governor Ronald Reagan. Clearly, he is a person deeply familiar with how the initiative process is an integral part of California’s lawmaking process.

What’s at stake in the case? California’s Citizens Redistricting Commission, the one that finally brought sanity and citizen participation to our state’s previously highly politicized process. What else? Fifteen other states have created alternatives to politicians drawing their own district lines.  Another dozen states are thinking about it.  According to Justice Kagan, depending on the Court’s ruling, “zillions” of election laws passed by initiatives or that delegate power from politicians could also be in jeopardy.

A little background first.  Arizona used to redistrict the way that most states did – the state-elected body drew the lines for the state legislative and congressional districts. In 2000, Common Cause and other groups placed an initiative on the ballot, Prop 106, asking if it would be a good idea to create a 5-person commission to draw the lines instead. Two decades and two rounds of redistricting later, politicians in Arizona’s legislature decided they didn’t like the maps or the process, so they challenged it.

The Arizona Legislature rests its case on Article I, Section 4 of the U.S. Constitution – The Elections Clause – which says that:

“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

Essentially, Arizona’s Legislature says: The Constitution says “the “Legislature” – and that’s the elected body of politicians.  Citizens can’t take the power to redistrict away from us.

The folks on the side of the Arizona Independent Redistricting Commission say: hold on. It’s 2015. Since 1898, more than 20 states have created an initiative process where the people can pass laws.  Do you want us to throw out all of the election laws adopted through a vote of the people? Even in states where the elected body draws legislative lines, the Governor usually has a veto and courts can review the maps and even redraw them. Should we tell those states that they are not allowed to create a system of checks and balances? And what happens with the 16 states that have created some alternative system for redistricting? Are we throwing all of those systems out? Does it depend on how much of a role the Legislature has?

My read of the four liberal justices’ questions at oral argument is that they interpret the Clause’s “Legislature” language broadly – that it should include whatever each state defines as its system for making laws.

The four conservative justices led by Justice Scalia are in the camp that “Legislature” means “The Legislature” – as in the group of elected state lawmakers that occupy the statehouse, and only them.

So where does that leave Justice Kennedy? His questions seemed to center on how to create a workable rule that sets a floor and ceiling for how much the Legislature (as in the body of elected representatives) should be involved in the making of election and redistricting laws consistent with the Elections Clause.  In other words, how much is enough and how much is too much?

At oral argument, we got a glimpse into what might be too much, in Justice Kennedy’s eyes. He asked the AZ Legislature’s attorney Paul Clements (I think, incredulously) if a court that is asked to decide a redistricting case must pass on it, because it is not the Legislature.  And does a court that has drawn district maps (because it found that the Legislature gerrymandered the lines) have to submit the plan to the Legislature first for approval? Justice Kennedy said to the attorney for the AZ Legislature:

“If we rule in your favor, we’re going to have to tell every court that’s involved in a redistricting litigation that it has to submit it to the legislature….”

Thought bubble above Kennedy’s head: “You must be joking….”

Interestingly, this is not the first time that Justice Kennedy has been in the unique position of searching for a workable rule.  In redistricting, one of the big questions has been whether there is a manageable standard for finding that a Legislature has crossed the line of political or partisan gerrymandering.  Four justices in Vieth v. Jubilier (2004) said there was no manageable standard, but Justice Kennedy, concurring as a fifth vote, said while we don’t have a standard, it is worth looking for one.  In the meantime, in the absence of a standard for finding when a case of political gerrymandering went too far, the Supreme Court left it up to states to draw lines as they wished.

In the Arizona case, if Justice Kennedy cannot figure out where to reasonably draw a line (pardon the pun) for where sufficient Legislature involvement exists (to abide by the Elections Clause), the default could be simply to allow each state to come up with its own solutions to respond to political gerrymandering.

us supreme court cartoon2It is fascinating that the ruling on whether Arizona’s Independent Redistricting Commission (and ultimately California and many other states’ systems) ultimately rests in the hands of a Californian – Justice Anthony Kennedy – who knows a thing or two about the initiative and how to find the right balance for respecting the Will of the People.

(Supreme Court sketch courtesy of Kathay Feng)