Revisiting the 2015 SCOTUS decision allowing redistricting commissions

Welcome to the Tuesday, December 6, Brew. 

By: Douglas Kronaizl

Here’s what’s in store for you as you start your day:

  1. In 2015, the U.S. Supreme Court ruled that voters could use initiatives to create redistricting commissions
  2. Kshama Sawant recall today in Seattle, Wash.
  3. 54.2% of the nation’s state legislators are Republicans

In 2015, U.S. Supreme Court ruled voters could use initiatives to create redistricting commissions

With so much in the news (and in The Brew!) lately about redistricting, you may have heard the terms “independent redistricting commission” or “non-politician commission” quite a bit. Both refer to third-party commissions that draft maps instead of a state’s legislature. Nine states currently use redistricting commissions at the congressional level.

It wasn’t until 2015 that the U.S. Supreme Court weighed in on their constitutionality. That year, SCOTUS ruled in Arizona State Legislature v. Arizona Independent Redistricting Commission that such commissions were constitutional. Arizona voters had approved a commission to handle legislative and congressional redistricting through Proposition 106 in 2000. The commission produced maps during the 2010 redistricting cycle. The Arizona Legislature filed suit against the congressional maps on July 7, 2012.

Article 1, Section 4, of the U.S. Constitution says, “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.” The Arizona Legislature argued the use of the word legislature in this context was literal, meaning only a state legislature may redraw congressional lines. The commission argued the word legislature ought to be interpreted more broadly to mean “the legislative powers of the state,” which includes things like voter initiatives and referenda.

The Supreme Court ultimately ruled that “redistricting is a legislative function, to be performed in accordance with the state’s prescriptions for lawmaking, which may include the referendum and the governor’s veto.”

Justice Ruth Bader Ginsburg wrote in the court’s majority opinion: “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have an habitual recollection of their dependence on the people.” Justices Anthony Kennedy, Stephen Breyer, Elena Kagan, and Sonia Sotomayor joined Ginsburg in the majority opinion.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented. In his dissent, Roberts wrote the word legislature in Article 1 of the U.S. Constitution ought to be interpreted to mean the “representative body which makes the laws of the people.” Roberts wrote: “For better or for worse, the Elections Clause of the Constitution does not allow [the people of Arizona] to address those concerns by displacing their legislature.”

At the time of the Court’s decision, six states had commissions responsible for congressional redistricting: Arizona, California, Hawaii, Idaho, New Jersey, and Washington. Since then, two states—Colorado and Virginia—both created commissions. Montana had a commission in place at the time of the Court decision, but it was not responsible for congressional redistricting until the state was apportioned a second district following the 2020 census.

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Kshama Sawant recall today in Seattle, Wash.

Voters in Seattle, Wash, are deciding whether to recall District 3 City Councilwoman Kshama Sawant today.

Sawant is a member of the Socialist Alternative Party. When she won election in 2013, she became the first socialist elected to Seattle city government in 97 years. 

Petitioners supporting the recall allege three grounds for recalling Sawant: misusing city funds for electioneering purposes, disregarding regulations related to the coronavirus pandemic, and misusing her official positions. Sawant said the recall was politically motivated and asked a state superior court to dismiss the petition. The Washington Supreme Court ultimately ruled the recall could proceed.

During her 2019 re-election campaign, Sawant completed Ballotpedia’s Candidate Connection survey, writing:

“I wear the badge of socialist with honor … [M]illions of Americans are looking for a different kind of politics, based on the needs of working people and the environment, not the interests of the billionaire class and big business. I think a key part of that process is building a new political party completely independent of corporate money, that fights unapologetically for working people and the oppressed, and is rooted in social movements, community organizations, and labor unions.”

Ballotpedia has tracked 324 recall efforts against 491 officials in 2021. About 25% of the efforts were against city council members (80 efforts against 140 members). Recalls of 27 city council members have made it to the ballot in 2021. Fourteen were removed from office and 13 kept their seats. Since Ballotpedia began tracking recalls in 2008, we have not tracked a successful recall of a city council member in Washington.

In addition to the Sawant recall, there are county-level recalls in the coming week, both involving energy issues.

In Labette County, Kansas, voters are deciding today whether to recall Commissioner Brian Kinzie (R). Organizers began the effort after Kinzie voted in favor of a motion to enter final negotiations to allow a wind energy company to place 50 to 70 turbines in the county in April 2021. 

On Dec. 14, voters in Saunders County, Neb., will decide whether to recall Supervisor Doris Karloff (R). Rhonda Carritt, the resident who began the recall effort, said she did so, in part, in response to a conditional use permit the board of supervisors granted to a solar energy project in the county.

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54.2% of the nation’s state legislators are Republicans

Ballotpedia’s November count of the 7,383 state legislators found that 54.2% of all state legislators are Republicans and 44.7% are Democrats.

Republicans control 61 of the country’s 99 legislative chambers, while Democrats control 37. The Alaska House of Representatives is the only chamber controlled by a multipartisan, power-sharing coalition.

In November, Democrats had a net decrease of one seat, and Republicans had a net increase of eight seats. New legislators elected in New Jersey and Virginia on Nov. 2 will be sworn in during the second week of January 2022. Compared to November of last year, the state legislatures are 1.9% less Democratic (46.6% to 44.7%) and 1.8% more Republican (52.4% to 54.2%).

Republicans have controlled a majority of state legislative seats since 2011, making this the party’s longest period of majority control in over 100 years. From 1921 to 2021, Democrats controlled a majority of state legislative seats for 74 years while Republicans held control for 26. Democrats’ longest period of majority control lasted 48 years from 1955 to 2003.

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