In 2000, the people of Arizona, by initiative and referendum, took away from the state legislature the power to draw district lines for both the state legislature and for Congress. The argument that allowing the legislature to do so is an obvious conflict of interest, a conflict of interest that has been exploited to the hilt over the last two centuries in most states. The Arizona State Legislature sued in federal court, arguing that the Constitution’s elections clause, Article I, Section 4, gives the legislature the exclusive right to set the lines. On Monday, the Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission ruled in favor of the Redistricting Commission, 5-4.
Gerrymandering is a uniquely American perversion of democracy, unknown elsewhere in the English-speaking world, where independent, non-partisan districting commissions are the norm. It’s end of this blot on American democracy would be more than welcome. But does this decision make a good constitutional argument? I don’t think so.
The elections clause says that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; . . .” Justice Ginsburg, writing for the majority, argues that since Arizona has initiative and referendum, “the people” constitute a legislature and thus the Arizona system comports with the Constitution. Chief Justice Roberts, in withering dissent, says that that is nonsense as the Constitution frequently uses the terms “legislature” and “the people” and never, ever interchangeably. In 1787, the idea of initiative and referendum — a reform of the Progressive era to circumvent legislative corruption — was unheard of. It seems incontestable that when the delegates to the Constitutional Convention wrote “legislature,” they meant a body of elected men empowered to write laws.
But does “Time, Places and Manner of holding Elections” encompass the drawing of district lines? Certainly “Time” and “Places” have obvious meanings. But does “Manner” mean anything more than the method of voting on Election Day, such as raising hands, paper ballots, etc.? I’m not at all sure that it does.
Gerrymandering was also unknown in 1787. It was invented in 1812 by Governor Elbridge Gerry of Massachusetts. When one politically self-serving district he drew was said to resemble a salamander, a portmanteau word was born. (The governor’s name is pronounced with a hard G, however.) And I am not at all sure that the delegates even considered the problem of districting at all. The only precedent they had was the British Parliament, and it hadn’t been redistricted since the reign of Henry VIII.
Not even the conclave of geniuses that sat in Philadelphia in the hot summer of 1787 could anticipate everything. Just as they failed to anticipate the rise of factional parties so they failed to anticipate gerrymandering or, perhaps, the problem of districting at all.
And if the Constitution is silent on the subject of districting, are not the states free to handle the problem as they please, subject only to the Congressional override that Article I, Section 4 also provides for?
In other words, by narrowly construing the word “Manner” rather than very broadly construing the word “Legislature,” Justice Ginsburg could have achieved her end without doing unnecessary violence to both the Constitution and the English language.