Supreme Court weighs process, not politics, of who draws voting maps


GWEN IFILL: This week, the Supreme Court hears two cases that could affect how we vote and how we pay for health care.

Jeffrey Brown starts us off with today's arguments over what has come to be known as election gerrymandering.

JEFFREY BROWN: It's a longstanding, very contentious issue in American politics. Who should draw the shape and scale of congressional districts?

The case now before the court comes from Arizona, where, in 2000, voters passed a referendum to move the redistricting power away from the state legislature and instead create an independent commission to draw voting lines.

You can see the result. Arizona's congressional map before the commission on the left included a widely cited and creatively fashioned district in the northwest of the state. Then, on the right, you can see the changed map after the commission's work in 2012.

Marcia Coyle of "The National Law Journal" was there in the court for today's argument, and, as always, joins us now.

Welcome again, Marcia.

MARCIA COYLE, "The National Law Journal": Thank you.

JEFFREY BROWN: The original idea of this, of having an independent commission, was to take the partisanship out, right?

MARCIA COYLE: Absolutely.

When Arizona acted in 2000, the voters were seen as really doing something cutting-edge to reduce partisanship that had resulted in very, very safe seats for incumbents of the party in power and reduced the number of truly competitive election districts.

JEFFREY BROWN: But the state legislatures said, no, you have gone too far, and that's how we ended up in court?

MARCIA COYLE: Yes, absolutely again.

The issue before the court is whether voters, acting through an initiative, are really acting as a legislature within the meaning of that word legislature in the Constitution.

JEFFREY BROWN: All right. We're going to — we have got that clause, because, right…The argument is — as often, right, it's about a word or a clause.


JEFFREY BROWN: This is the election clause from the Constitution.

Let's put that up.


JEFFREY BROWN: Tell us — tell us about the — what happened here, how that played into the argument today.

MARCIA COYLE: Former Solicitor General Paul Clement was representing the Arizona state legislature.

And he said that word legislature has always been meant to be a representative body from the beginning of the drafting of the Constitution until today, and the one thing voters could not do was, they could not usurp the state legislature's power, cut them out of the redistricting process permanently, that that violates the elections clause, which gives to a representative body the authority to direct the time, place and manner of congressional elections.

JEFFREY BROWN: And how did that go over with the justices?

MARCIA COYLE: Well, it actually went over, I think, fairly well with a majority. Well, we're not sure yet.

But there was pushback. Justice Sotomayor said, well, there wasn't initiative and referendum at the drafting of the Constitution. It didn't exist. And there are Supreme Court decisions in other contexts that look at legislature more broadly, as a process, the power of legislating.

Justice Kagan said to Mr. Clement, there are zillions — and she used that word — zillions of laws that have been enacted through initiatives involving elections, for example, voter I.D. laws, voting by mail, voting by machine. She said, wouldn't they all be unconstitutional under the state legislature's view?

JEFFREY BROWN: Conservative justices, though, were more — arguing along with the state legislature?

MARCIA COYLE: That's right.

Another former solicitor general, Seth Waxman, argued that there is a broader meeting. And he said Arizona's state constitution defines legislature to include the people and two representative bodies, their Senate and their House, and it is the process of legislating that is the definition of legislature.

He also pointed to dictionary definitions. He said every dictionary that they have looked at defines it more broadly. Justice Scalia said to him, name me one provision in the Constitution that uses the word legislature in the way that you use it. And Mr. Waxman could not say that, but he said, the court has never really defined legislature one way or the other.

And Chief Justice Roberts also pushed back at Mr. Waxman, saying, basically, why, if it was to be a broader meaning, didn't the drafters just say, "by the state," instead of "by the legislature"?

JEFFREY BROWN: What — are there implication here for other states, for other laws?

MARCIA COYLE: Absolutely.

California has a commission very much like Arizona's. And two former Republican governors are supporting the Arizona commission. They have been pleased with the outcome. There are about 11 states that have something similar, but not quite, as Arizona has done, cutting the legislature completely out of the redistricting process.

JEFFREY BROWN: Just in a word, was there any discussion about the implications of gerrymandering or was this all about the process?

MARCIA COYLE: It was all about the process.

And I should point out, too, Jeff, that the Supreme Court has pretty much washed its hand of trying to decide whether partisan gerrymandering violates the Constitution. So, this action by Arizona voters was seen as one of the few checks on partisan gerrymandering.

JEFFREY BROWN: Marcia Coyle of "The National Law Journal," as always, thanks.

MARCIA COYLE: My pleasure, Jeff.

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