Preview of Harris v. Arizona Independent Redistricting Commission

The issues presented in Harris v. Arizona Independent Redistricting Commission are:

SupremeCourtIssues: (1) Whether the desire to gain partisan advantage for one political party justifies intentionally creating over-populated legislative districts that results in tens of thousands of individual voters being denied Equal Protection because their individual votes are devalued, violating the one-person, one-vote principle; and (2) whether the desire to obtain favorable preclearance review by the Justice Department permits the creation of legislative districts that deviate from the one-person, one-vote principle, and, even if creating unequal districts to obtain preclearance approval was once justified, whether this is still a legitimate justification after Shelby County v. Holder. [This is a retroactive application argument.]

The case will be argued before the U.S. Supreme Court on Tuesday, the same day that the Court hears oral argument in the “one person, one vote” case from Texas, Evenwel v. Abbott. “Issue: Whether the three-judge district court correctly held that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.”

Amy Howe at SCOTUSblog has an Argument preview: Does “one person, one vote” yield to partisan politics or the Voting Rights Act?:

In 2000, Arizona voters amended the state’s constitution to give authority over redistricting to a five-member independent commission.  Taking that authority away from the state legislature was supposed to take the politics out of redistricting – a key factor in a case before the Supreme Court last Term, in which the Justices rejected a [Republican] challenge to the commission’s power to draw federal congressional districts.  But a lawsuit now before the Court brought by a group of Arizona voters alleges that the commission, while supposedly non-partisan, is actually anything but. 

During the redistricting that followed the 2010 census, Wesley Harris [the founder and chairman of of the Original North Phoenix Tea Party] and his fellow challengers contend, the commission deliberately put too many voters in sixteen Republican districts while putting too few in eleven Democratic districts.  This means, Harris argues, that the votes of residents in the overpopulated districts effectively count less than the votes of their counterparts in the underpopulated districts – a violation of the constitutional principle of “one person, one vote.”  The Supreme Court will hear oral arguments in Harris’s challenge on Tuesday, in a case that – depending on how broadly the Justices rule – could affect legislative maps far beyond Arizona.

Arizona’s constitution requires legislative districts to be redrawn every ten years.   It also directs the commission to consider several specific criteria when drawing redistricting maps for the state legislature:  the federal Constitution and the Voting Rights Act; creating districts with equal populations; creating districts that are geographically compact and contiguous; preserving groups of people with common bonds or interests, which are often racial or ethnic; adhering to geographic features such as municipal or city boundaries; and maintaining political competitiveness, as long as it will not undermine the other criteria.

The first issue before the Court on Tuesday arises from Harris’s accusation that the commission over-populated some of the districts that it drew in the post-2010 legislative maps to favor the Democratic Party.  Harris (who has the support of Michele Reagan, Arizona’s chief elections official) is adamant that he and his fellow voters are not challenging the role of party politics in redistricting, standing alone:  he colorfully tells the Justices that “partisanship in redistricting is like gambling in a casino.  Of course partisanship is present” in redistricting.  Nor, Harris emphasizes, is he arguing that the commission was required to achieve “precise mathematical equality” in drawing the state legislative maps.  But what the commission cannot do, he maintains, is draw legislative maps that apportion the state’s population unequally because it wants to favor one political party.

The commission and the federal government, which filed a “friend of the Court” brief supporting the commission, are reluctant even to concede that partisanship might have played a role in the Arizona redistricting.  The United States, for example, points out that “Arizona’s plan gave Republicans slightly more than their proportionate share of seats in the state legislature,” while the commission adds that “[e]lections under the map have mirrored the state’s party registration and, if anything, Republicans have modestly overachieved.”  Moreover, they note, the Supreme Court’s cases create a presumption that redistricting plans do not violate the principle of “one person, one vote” as long as the deviation between the largest and smallest districts from the ideal equal population does not exceed ten percent, and here the maximum deviation is only slightly under nine percent, with the average deviation only 2.2%.  Such a rule, the commission emphasizes, is intended to preserve the states’ sovereignty in governing its own electoral affairs and to protect them from “endless superintendence by federal courts.”

Harris counters that it is irrelevant that none of the districts deviate more than ten percent from the ideal equal population for legislative districts.  The Supreme Court, he argues, “never held that there is any safe harbor for” the breach of the “one person, one vote” principle.  Rather, he continues, a redistricting scheme can deviate from the ideal equal population only when it does so to advance “legitimate justifications” such as “compactness, contiguity, and preserving political subdivisions and communities of interest.”  Partisan considerations do not fall into that category, particularly when the maps are being drawn by “an unelected and politically unaccountable body such as the commission.”

The commission and the United States respond that what the challengers describe as partisanship was actually a “good faith” effort to comply with the Voting Rights Act.  Until 2013, when the Supreme Court issued its decision in a case called Shelby County v. Holder, Arizona could not put a redistricting plan into effect unless it received approval – known as “preclearance” – from either the U.S. Department of Justice or a panel of three federal judges located in Washington, D.C.  The Voting Rights Act would allow preclearance only if Arizona could show that the proposed redistricting scheme would not make it more difficult for racial minorities to elect their preferred candidates.

The commission tells the Justices that, in earlier redistricting efforts, “Arizona had never obtained preclearance on its first attempt.”  Because of what the commissioners viewed as the “significant” consequences if its maps did not receive preclearance – including the costs to taxpayers and the prospect that elections would have to use maps drawn by a federal court instead – the commissioners’ top priority was to obtain preclearance for their maps on the first attempt.  And the desire to obtain preclearance, the commission and the United States contend, is exactly the kind of factor that states can legitimately consider in redistricting, and which justifies minor deviations from the ideal population.

This effort to justify the reapportionment is at the heart of the second issue before the Court – whether the commission’s desire to comply with the Voting Rights Act and obtain preclearance justifies a departure from the general “one person, one vote” principle.  Harris and Reagan argue that nothing in the Voting Rights Act requires states to distribute their population unequally to receive preclearance.  But if it did, Reagan continues, the constitutional principle of “one person, one vote” would trump that requirement.

Even if the Voting Rights Act might have once served as a valid reason for the commission to draw a legislative map that does not distribute the population evenly, Harris and Reagan add, that changed with the Court’s 2013 decision in Shelby County.  Because the Court invalidated the part of the Voting Rights Act that was used to determine which state and local governments needed to obtain preclearance, and Arizona is no longer required to seek preclearance, they contend, a desire to obtain preclearance can no longer justify an unequally apportioned map.  Even if the commission drew up the map before the Shelby County decision, Harris argues, the district court ruled on his challenge after that decision: “A court must decide a case consistent with current law.  Decisions invalidating unconstitutional laws apply to prior government acts, even when those acts were legal under then-existing law.”

The commission counters that the Court’s Shelby County ruling should not change the result in this case.  It argues that Arizona, rather than Harris or the courts, gets to “decide whether and how the state should redraw its legislative maps in light of” the Court’s ruling.  And the United States cautions that Harris’s argument “would place states in an impossible position by requiring them to ‘attempt to predict future legal developments and selectively comply with voting rights law in accordance with their predictions or ‘risk invalidation of their redistricting plans years later.’”

The impact of this case of course hinges on how the Court rules.  A ruling for the commission would leave the current maps in effect and reinforce that states have some leeway in redistricting as long as they don’t deviate too far from equally populated districts.  On the other hand, a ruling for Harris could have much broader ripple effects.  In a “friend of the Court” brief filed in support of the commission, a group of former Justice Department officials note that, as of 2010, “all or parts” of sixteen states were required to obtain preclearance for their redistricting maps.  If the Court were to rule that a desire to obtain preclearance did not justify deviations from equally populated districts, the officials warn, “over a thousand redistricting plans would be open to legal challenges, creating massive instability in the political process in States throughout the nation.”

Here is another preview of Harris v. Arizona Independent Redistricting Commission from Professor Vikram David Amar for Verdict at Justia.com, The Return of the Arizona Independent Redistricting Commission (AIRC) before the Supreme Court:

The First Time the Arizona Commission Went to the Court

The case involves congressional district lines drawn by an independent districting commission—that is, an entity separate from a state’s regular elected legislature—in 2010 after the last Census. This independent commission was created by a direct democracy initiative adopted in Arizona in 2000 wherein voters who were dissatisfied by various historically prevalent gerrymandering techniques removed the job of drawing federal district lines from the elected legislature and gave it to a new body, one supposed to create districts for less partisan reasons.

A few years ago, the elected Arizona legislature sued to challenge the permissibility of the initiative itself, insofar as it cut the elected body out of the federal districting loop. That case made it all the way to the Supreme Court, and the Court decided last summer that the federal Constitution does not prevent a state from undertaking congressional districting by use of such independent commissions. (I provide much more background on that case, and explain why I think it reached the correct result, in a previous column.)

The Current Case Before the Justices

The Harris case pending before the Court now is a challenge not to the commission’s very existence, but to the particular district lines the commission has created. In particular, the plaintiffs—individual Arizona voters—complain that the commission “diluted or inflated the votes of almost two million American citizens when [it] intentionally and systematically overpopulated sixteen Republican districts while underpopulating eleven Democrat districts . . . with the intent of creating an advantage for the Democratic party.” In other words, the claim is that by creating congressional districts of unequal size for partisan reasons, the commission violated the “one-person, one-vote” requirement of the Fourteenth Amendment.

The three-judge lower court in the case rejected the challenge. In a convoluted and divided set of decisions, it made a number of findings, including that partisan motivation was one but not the predominant reason the lines were drawn to create unequally sized districts, that the commission’s actions were driven by a desire to comply with federal Voting Rights Act (VRA) and implementing regulations, which were understood to require Arizona to take certain steps to increase the chances that racial-minority-preferred candidates could succeed in a sufficient number of congressional districts, and that the federal Fourteenth Amendment challenges were important enough that they should be resolved on the merits even though state constitutional challenges could possibly make irrelevant the federal disputes.

What Will, Should or Could the Court Do?

The Supreme Court accepted review, and [Tuesday] will listen to both sides make oral arguments. It’s hard to know precisely what the Court will do, but a few aspects of the case warrant discussion. First, this case arrived at the Court via an appeal rather than through the ordinary route—a writ of certiorari. What that means is that the Court was under a greater obligation to hear this case—provided the claims raised were not patently weak—than it is in most cases (on which certiorari is sought). For that reason, we can’t infer very much about the Court’s attitude on the merits simply because the Court took the case up. (It is easy to infer too much about the Justices’ attitudes about the merits of a case on which they chose to grant certiorari as well, but at least in that setting the Court ordinarily has great latitude as to whether to accept review, so that, in many instances at least, some inferences about merits views are defensible.) It is possible, therefore, that the Court in Harris will overwhelmingly affirm the lower court and reject the challenge.

It is also possible that the Court will reverse the lower court’s decision to reach the merits of the federal constitutional claims at all. As intimated above, the plaintiffs attack the commission’s district drawing under the Arizona Constitution as well as under the federal Constitution. If the plaintiffs are correct in their reading of the Arizona Constitution, then they win their case regardless of whether they are right in their understandings of federal law. For that reason, some federal judges—and justices—might prefer to “abstain” (i.e., stay the federal proceedings) until after the state law claims have made their way through the state courts and been adjudicated finally, in which case the federal claims may end up (if the state law claims prevail) not needing to be resolved at all. Federal jurists who favor sparing use of federal power in these kinds of cases over oversight of state district drawing—and there may be some such folks at the high Court—might prefer to adopt such a “wait and see” attitude.

If the Court does reach and really engage the merits (as I expect it will), the justices will confront a number of questions. First, they will have to decide whether the deviations in size between the Arizona districts are large enough to care about. The commission’s brief points out that the Supreme Court’s one-person, one-vote jurisprudence has never insisted that all districts be of identical size, only that they be reasonably close, and that differences in size aren’t the function of impermissible factors. In the Harris case, the largest districts and the smallest districts vary less than 10 percent in overall population size, a margin that could fit within the acceptable band the Supreme Court cases have recognized.

But the plaintiffs’ rejoinder is that the problem here is not simply that some voters enjoy more clout than others because they live in districts with fewer people; it is that this enhanced clout was intended by the commission for partisan reasons. The partisan motive, the plaintiffs allege, take this case outside the realm of normal cases that permit some deviation in district size.

I think the difficulty here for the plaintiffs is that all district-drawing likely is motivated, at least in some measure, by partisan considerations, and all districts are somewhat unequally sized—you simply can’t have districts that contain hundreds of thousands of voters be literally equally sized. So if the plaintiffs’ theory boils down to the notion that all unequally sized districts motivated by partisan enthusiasm are unconstitutional, then most all districts are going to be invalidated. Indeed, the Supreme Court in Vieth v. Jubelirer (in 2004) and Gaffney v. Cummings a generation earlier (1973) consciously declined to try to assess whether partisan motivations played too large a role in the creation of district lines precisely because partisan motivations were invariably present, and deciding how much is too much is not a task the Court can undertake without generating arbitrary results that undermine confidence in its role.

To the extent that plaintiffs here try to avoid the teachings of those cases by pointing out that those disputes didn’t involve claims of unequally sized districts (and plaintiffs do say precisely that, conceding that “if the Commission had equally reapportioned Arizona voters into legislative districts for the partisan purpose of benefitting the Democrat party we would not be here”), the effort would seem unavailing, inasmuch as all districts are unequally sized to some extent, and we always need a threshold to decide how much population size inequality is too much to tolerate. And to the extent that plaintiffs are implicitly arguing that the threshold should be lower when a high level of partisan motivation may be at play, such an argument, if embraced, would pull the Court into precisely the arbitrary kind of line-drawing (no pun intended) that cases like Vieth vehemently resisted.

If the Court does end up deciding (as plaintiffs hope) that the size variation among the districts in Arizona is troublingly large, such that some justification other than partisan zeal is needed, the Court will then have to confront the relevance of the federal Voting Rights Act, which was intended by Congress to facilitate racial minority voting success. The complication here is that the VRA’s requirements with which the Arizona commission seems to have, in good faith, been trying to comply have since been deemed by the Supreme Court (in the Shelby County, Alabama v. Holder case in 2013) to be outdated and thus unconstitutional. So the question becomes, is an attempt to comply with a statutory mandate that does not in fact exist but that was reasonably thought to exist at the time district lines were drawn a sufficient justification for having unequally sized districts that otherwise would be constitutionally problematic? The answer would seem to depend on whether we care more about the state’s motives (in which case good faith reliance on the best understandings of the law in effect at the time diffuses any problem) or about whether the state’s justifications for size deviation in fact serve significant government purposes (in which case compliance with phantom statutory mandates seems less weighty). I think this is a complicated question, made trickier still (as the federal government points out in its amicus brief) by the fact that redrawing all the district lines that were created based on the way the Voting Rights Act was understood before the date Shelby County was decided (or before the date that Shelby’s reasoning suggests the VRA became constitutionally obsolete and thus infirm) would be daunting indeed.

It will be interesting to see in Harris how the oral argument unfolds.

Finally, Professor Sam Wang from Princeton University, an expert in statistics, writes, Offering a new standard for gerrymandering to the Supreme Court:

I [have] filed a friend-of-the-court brief in the Harris v. Arizona Independent Redistricting Commission case (S. Ct. 14-232). The brief can be found here (for a summary of other briefs, see the Arizona Eagletarian blog). In it, I argue that the Supreme Court should reject Harris’s case on the grounds that there was no partisan injury.

Claims of partisan gerrymandering are sometimes wielded fairly loosely. Harris et al. claim that voters of one party (in their case, Republicans) were packed into districts by the Commission to impair their representation. My brief describes how such a claim can be put to an impartial mathematical test. In fact, there was no partisan asymmetry to what the Commission did. Ironically, my analysis finds a slight (but statistically nonsignificant) partisan tilt favoring Republicans, who are the complainants in this case.

The test I proposed is a simple one: the difference between the average support for a party in a state, and the median district-by-district outcome. The average-median difference* has well-known statistical properties, and can be applied to any statewide districting scheme. It might be useful in the future as a general standard for statewide partisan gerrymandering. A need for such a standard for partisan asymmetry has been expressed in the Vieth v. Jubelirer and LULAC v. Perry cases.

I have written more generally on rigorous measures of partisan symmetry. A current version of my article, “A Three-Prong Standard for Partisan Gerrymandering,” is available at SSRN.

* The average-median difference has also been proposed by Michael McDonald (SUNY Binghamton) and collaborators. My own contribution is to point out that this measure, which was formulated around 1897 by the pioneering statistician Karl Pearson, has well-behaved statistical properties which can be used easily by a court.

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