In the plangent peroration of his dissent in United States v. Windsor, Justice Antonin Scalia bemoaned the Supreme Court’s ruling in favor of marriage equality. The justices had shortchanged democracy, he lamented: “We might have let the People decide.” But as it turns out, Scalia isn’t so fond of letting “the People decide” when those people decide to do something that actually strengthens democracy—like, for instance, drawing fair boundaries for congressional districts. Scalia may not see a constitutional right to marriage, but he definitely sees a constitutional right for partisan state legislatures to entrench their ruling parties’ power to the detriment of democracy. And after arguments on Monday, it seems likely that Scalia’s view will soon become the law of the land. Here are the basic facts behind Monday’s case, Arizona State Legislature v. Arizona Independent Redistricting Commission. In 2000, Arizona voters approved a ballot initiative, Proposition 106, that took congressional redistricting out of the state legislature’s hands. For decades the controlling party in the statehouse had used redistricting to put members of its own party in the House of Representatives through partisan gerrymandering. Under Proposition 106, the task of redistricting was put entirely in the hands of an independent commission. The system has worked remarkably well: Thanks to the commission’s redistricting efforts, Arizona’s House seats are consistently competitive.
Now the Republican-dominated Arizona legislature wants to stop that. Conservative legislators claim that the independent commission is illegal under Article I, Section 4 of the federal Constitution, which reads, in part: “The times, places and manner of holding elections for … Representatives, shall be prescribed in each state by the legislature thereof.” When the Constitution says “legislature,” these legislators say, it’s talking about them, the elected lawmakers. And any law that affects the “manner of holding elections” for House members without input from the state legislature must be struck down as unconstitutional.
But Arizona’s transparently self-interested legislators have a problem. When the Constitution was written, its framers had no concept of initiatives and referenda, which have since become a vital part of the democratic process on the state level. To keep the Constitution relevant and logical, the Supreme Court has repeatedly held that “legislature” actually means legislative power and legislative process—which can, of course, be exercised by the people through direct democracy.