Supreme Court Affirms Power of Initiative in Redistricting Case

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

The people can serve as legislators. In a 5-4 decision, the United States Supreme Court declared that an initiative by the voters to create a commission in Arizona to draw congressional districts was constitutional. California established a similar commission in 2008 when voters passed Proposition 11 and added congressional redistricting to the commission’s duties with Prop 20 in 2010.

The case affirms that voters have legislative authority through the initiative process, a powerful boost for initiative lawmaking. Justice Anthony Kennedy, the only Californian on the court, who himself was involved in a California initiative when he practiced law in California, joined the majority.

The case arose when Arizona legislators challenged the right of voters to set the parameters for congressional elections. The U.S. Constitution specifically cites that legislatures are to set the rules of election. 

However, the court agreed that the voters can act as legislators.

That’s the way California sees it.

California’s Constitution says, “All political power is inherent in the people.” The next sentence in the Constitution reads: “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.”  That’s just what the voters did in passing Proposition 20 in 2010 – they altered the system of redistricting in an attempt to find a fairer system for the public good.

In fact, in the California Constitution the right of initiative appears ahead of powers granted the legislature. And the section on the legislative power granted the California legislature even acknowledges that, “the people reserve to themselves the powers of initiative and referendum.”

The final paragraph of the majority opinion: “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representa­tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­tions Clause does not hinder that endeavor.”

The decision is a strong endorsement of the initiative process.

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