DAVID GREENE, HOST:
Take a look at a congressional district map and it sort of looks like a madman's jigsaw puzzle. The reason is in part that district lines are drawn by state legislators who try to help their own parties.
RENEE MONTAGNE, HOST:
That's why some states - California, Arizona and others - have tried setting up independent commissions to draw those maps. It was 15 years ago that Arizona voters created a redistricting commission. Its map was immediately challenged, and now the Republican-dominated legislature has taken a challenge to the commission's very existence all the way to the Supreme Court. NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG, BYLINE: Even the Supreme Court has viewed partisan gerrymandering of legislative districts as a bad practice that deprives citizens of fair representation. But the court has also thrown up its hands when it comes to policing the practice for one simple reason, the justices have been unable to come up with neutral and judicially manageable rules for drawing electoral boundaries.
So in recent years, some states have been experimenting with independent commissions. The commissions vary in form and in how much influence they allow incumbents to have in drawing their own districts. Arizona's independent commission is under the microscope today. In 2000, the state's voters overwhelmingly approved a referendum that amended the state constitution to put redistricting in the hands of an independent five-person commission. Two of the commissioners were to be Republicans, two Democrats and the commission chairman was to be an Independent. In a state with 35 percent registered Republicans, 35 percent Independents and 30 percent Democrats, the congressional map the commission drew had four safe Republican seats, two safe Democratic seats and three competitive districts. Commission Chair Colleen Coyle Mathis.
COLLEEN COYLE MATHIS: Some of the most competitive races in the country are in Arizona now. And I attribute that directly to the commission's work.
TOTENBERG: Even before the map was completed, however, the Republican who was governor, Jan Brewer, fired Mathis backed by a vote from the Republicans in the state Senate who had a two-thirds majority. The controversy ended up in the Arizona Supreme Court. That court, after a hearing, took just two hours to overrule the firing, declaring there was no sufficient cause for removing Chairman Mathis.
Having failed to block the commission's work that way, Republican state officials challenged the independent commission in court as unconstitutional, and their appeal has now reached the U.S. Supreme Court. At the heart of the case is the elections clause of the Constitution, which says that the, quote, "times, places and manner of holding elections for Congress shall be prescribed in each state by the legislature thereof." Those words resolve the issue, says former solicitor general Paul Clement, who's representing Arizona.
PAUL CLEMENT: We make the radical claim that when the framers used the word legislature, they meant the word legislature.
TOTENBERG: Not so, says another former solicitor general, Ted Olson. He contends that the founding fathers were very suspicious of state legislatures and wanted the ultimate power to be with the people.
TED OLSON: We looked back at the definition of legislature at the time the Constitution was written, and it didn't mean that particular body. It meant the entity or collection of individuals that made the law. And that includes the people. And the people in Arizona and the people in California created these redistricting commissions that exercise the authority given to them.
TOTENBERG: Olson and Clement each served as the top legal advocate in the George W. Bush administration, but in this case, they're on opposite sides. Olson argues that leaving redistricting to the legislature means that in the age of computers, the party in power can manipulate the drawing of district lines to be anything they want them to be. And the result is self-perpetuating, polarized districts where incumbents are guaranteed re-election but are accountable only to the extremes of their party to fend off primary challenges. The framers, he argues, wanted the people to be able to extricate themselves from this sort of gridlock to experiment and have wide authority over the election process.
OLSON: What California and Arizona have done is simply to try to fulfill the goals of the framers to make a system where our elections are reasonably competitive and that the people then have a choice and aren't boxed in to one particular party or the other based upon the accident of where they live.
TOTENBERG: Clement counters that the framers did not believe in direct democracy.
CLEMENT: The whole idea of the Constitution was that we're going to form a Republican government, that we can't have direct democracy and they didn't give this authority to the people at large. They gave it specifically to the state legislature.
TOTENBERG: Olson rebuts that proposition, pointing to the second part of the Constitution's election clause. That second clause gives Congress the power to make laws to alter state election regulations. And Congress, he maintains, did just that in the early 20th century when it adopted a statute allowing states to be redistricted by referendum instead of by the legislature. That statute, as amended, permits redistricting, quote, "as prescribed by the law of the state." And the law in the state of Arizona, he argues, is the state constitutional amendment enacted by referendum, giving the power to redistrict to an independent commission.
OLSON: I really think, with all due respect to the other side, the statute here is just a red herring.
TOTENBERG: Again, Arizona's lawyer, Paul Clement.
CLEMENT: The one thing the second clause doesn't give Congress is the ability to rewrite the first clause. It's not the people who will formulate these election maps in Arizona. It's five unelected state officials as part of this commission.
TOTENBERG: Indeed, Arizona State Senate President Andy Biggs complains that the independent redistricting commission leaves the state legislature all but impotent in the redistricting process.
SENATOR ANDY BIGGS: We're just totally irrelevant to the process other than at the beginning where you have a slight participation.
TOTENBERG: Of course, the legislature does have the power to put the redistricting commission on the ballot again to get it repealed. But Biggs confesses that effort would likely be futile. So what would he tell the voters who seem to like the independent redistricting commission?
BIGGS: I would tell them that I understand your cynicism and skepticism. But the reality is the U.S. Constitution says that the legislature's supposed to draw the congressional lines.
TOTENBERG: Now the Supreme Court will decide whose reading of the Constitution will prevail. Nina Totenberg, NPR News, Washington.
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