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.
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.”