“Where’s the beef?” That was the question from Washington attorney Paul Smith, arguing at the Court today on behalf of the five-member independent commission charged with drawing new state legislative maps for Arizona. The Justices heard oral arguments in a challenge by several Arizona voters to the maps that the commission drew after the 2010 census; the voters allege that the commission violated the principle of “one person, one vote” when it intentionally put too many residents into Republican-leaning districts while putting too few into Democratic-leaning districts. The Court’s four more liberal Justices seemed inclined to agree with Smith, but some of the Court’s more conservative Justices were harder to read. Because a ruling in favor of the challengers could potentially affect redistricting maps around the country, both sides could be on tenterhooks waiting for the Court’s eventual decision.
As I explained in my preview of the case, the first issue before the Court was the role of partisan politics in the creation of the over- and under-populated districts and how courts should determine whether that role crossed constitutional lines. Attorney Mark Hearne, representing Wesley Harris and the other challengers, told the Justices that partisanship was “rank” in the redistricting process. But some Justices were unconvinced, with Justice Ruth Bader Ginsburg telling him that she found it “odd” that he was alleging partisanship when “the end result was that the Arizona plan gave Republicans more than their proportionate share of seats in the state legislature.” If this was, she continued, an effort to “to stack the deck” in favor of Democrats, “it certainly failed.”
Mark F. Hearne for appellants (Art Lien)
Attorney Paul Smith, representing the independent redistricting commission, painted a very different picture. He asserted that partisanship had played such a “tiny role” in the redistricting process, and its effect was so minimal, that “it’s simply not something that ought to be taken seriously as a constitutional problem.” Justices Stephen Breyer and Sonia Sotomayor seemed to agree with him; Breyer suggested that any deviation of less than ten percent from the ideal equal population was “minor,” while Sotomayor emphasized that, if the Court were to rule for the challengers, virtually every redistricting plan in the country would face a vote-dilution challenge. Justice Elena Kagan made a similar point in a question for Arizona attorney general Mark Brnovich, who argued in support of the challengers. Describing a hypothetical in which a state has a policy to respect county lines when drawing districts, even if it will “cause a little bit more deviation on the one-person, one-vote metric,” she asked him whether the “one person, one vote” principle would preclude an intentional decision to draw maps that would increase the deviation from four to five percent, or from seven to eight percent. “Yes,” Brnovich responded, if it was done in “a systematic and intentional manner.”