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On Mixed Final Day, Supreme Court Upholds Independent Redistricting, Opposes Gerrymandering

After a triumphant week for my fellow Lefties last week, the Supreme Court delivered a mixed bag in its final day of decisions yesterday. In victories inviting celebration from conservatives, the ever-divided Court allowed states to continue using the drug midazolam to knock prisoners out before killing them and nixed Obama–EPA regulations on emissions of mercury and other toxins from power plants (because, you know, money is more important than breathing). The Supreme Court did allow Texas abortion clinics to remain open while it considers whether it reviews Texas’s effort to make abortion inaccessible if not illegal.

Justice Ruth Bader Ginsburg
Don’t gerrymander on me!

In a win perhaps more for election-law wonks (that’s why you’re reading this blog, right?) than liberals or conservatives, the Court also upheld Arizona’s Independent Redistricting Commission, created by voter initiative in 2000 to get rid of gerrymandering and draw fair boundaries for Arizona’s nine Congressional districts. Republican Arizona legislators sued, claiming that the voters do not have the power to create such a commission and thus affect the “times, places and manner of holding elections for Senators and Representatives,” which Article 1 Section 4 of the United States Constitution, the Elections Clause, says “shall be prescribed in each state by the legislature thereof.” However, Justice Ginsburg and the majority said that, thanks to the initiative power granted to voters over a hundred years after the inking of the Elections Clause, “legislature” includes the people:

In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States” [Justice Ruth Bader Ginsburg, majority opinion, Arizona State Legislature v. Arizona Independent Redistricting Commission, 2015.06.29].

Ginsburg’s opinion reinforces the power of the initiative and referendum, which under South Dakota’s constitution is a legislative power reserved to the people. And while this ruling focuses on Congressional redistricting, which is not an issue in single-“at large”-district South Dakota, it makes a strong case for reforms that would do away with the gerrymandering South Dakota’s Legislature uses to protect incumbents and party interests in legislative redistricting. As Justice Ginsburg writes (citing precedent), “Voters should choose their representatives, not the other way around.”


  1. MC 2015-06-30

    Do we need to redraw our lines.

  2. mike from iowa 2015-06-30

    Yes. Redraw the lines and situate Noem down in Texas with the bat—- crazies of the wingnut party.

  3. Deb Geelsdottir 2015-06-30

    I have been madly in love with the Notorious RBG for many years now. She is a first class jurist and a first class woman. The RATS (Roberts, Alito, Thomas and Scalia) could learn so much from her.

  4. Roger Cornelius 2015-06-30

    One thing is certain, the justices are probably pretty damn happy this session is over, Roberts and Kennedy heads having been snapping all week.

  5. MC 2015-06-30

    Roger, for once I agree with you The SCOTUS as whole, is probably happy this session is over with.

  6. Roger Cornelius 2015-06-30


    I wasn’t aware you ever disagreed with me, but thanks.

  7. caheidelberger Post author | 2015-06-30

    MC, I would say we do need to redraw our lines. Currently the legislators get to draw their lines to choose their voters and exclude their opponents. A fair districting committee would work with maps and population numbers but no knowledge of individual addresses or party affiliations in any neighborhood. They would create districts of roughly equal population and maximally convex borders—i.e., no wiggly-jiggly bits like strange carve-outs and wrap-arounds found on Districts 1, 2, 3, and 4 or the wild boundaries drawn through Sioux Falls and Rapid City.

  8. Heidi Marttila-Losure 2015-06-30

    Beyond the fact that jerrymandering protects incumbents (the ones drawing the lines, or at least the party drawing the lines), those jerrymandered districts promote voter apathy. There is regularly no opposition to the incumbent, or the dominant party’s favored candidate. From the minority party’s point of view, why run if you can’t win? And from the voters’ point of view, why show up to vote if you know your vote isn’t going to matter? And if your vote doesn’t matter, why pay attention to the issues at all?

    Now there are generally some things on the ballot that don’t have predetermined outcomes–initiatives, referendums, or city or county races. But the lack of competition in some races can infect voters’ attitudes about the whole process.

    Another measure to consider is an open primary system: The top two vote-getters in the primary face off in the general election. If the top two were from the same party, they’d compete in the general. I realize that, especially with jerrymandered districts, this could mean more candidates from the dominant party getting elected. But at least they’d have to face some actual competition in getting there, hopefully developing more well-thought-out positions in the process. And voters couldn’t vote lazily, based solely on whether the “D” or “R” behind the candidate’s name matched the one on the voter’s voter registration. If there’s more than one “D” or “R” on the ballot, they’ll have to use some other criteria to make their decision.

  9. grudznick 2015-06-30

    Wouldn’t just putting the top 2, Ms. Marttila-Losure, just be like having one giant combined primary regardless of party? If the winner between two slovenly fellows from one party gets slobberknocked in the general election by the winner between five proper fellows, I’m just wondering if you are advocating the disbandment of all parties and having the full-on cage match general election between all comers in June?

  10. leslie 2015-06-30

    a good week, nationally

  11. caheidelberger Post author | 2015-07-01

    I like Heidi’s take on voter apathy as a good reason for election reform. The primary goal of election reform is to promote democracy. That means getting people involved. Logically drawn districts could be part of that. If a district meanders out across all other boundaries to include far-flung areas with no other connection, voters may have less interest in who represents that very artificial jurisdiction.

    Open primaries would also seem to promote interest in elections by allowing everyone a say.

  12. Rorschach 2015-07-02

    It was maybe the most interesting week ever for Supreme Court decisions. As Markos Moulitsas from Daily Kos noted, Republicans won a couple of decisions defending poisoned air and torturing people to death. (They’re surely proud of themselves). Democrats won promoting marriage equality and healthcare.

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