The sentence cannot be found in the Constitution, but it best captures one of the fundamental democratic principles the Constitution exists to protect: “Voters should choose their representatives, not the other way around.”
That quote — from a decade-old law review article — comes at the end of the Supreme Court’s decision on gerrymandering, a two-century-old term that refers to drawing legislative districts to achieve political advantage. On the grounds that this is an essentially political process that falls under the purview of the legislative branch, the court has long refused to intervene in the practice. On Monday, however, in a major victory for grass-roots efforts to reshape election laws, the court ruled that the people have the right to give it a go themselves.
For decades, legislatures have used sophisticated computer mapping programs to weave district lines in and out of streets and stitch together far-flung communities, usually to protect incumbents. The result is often a bizarre patchwork that helps smother fair competition.
In some states, voters have rebelled against gerrymandering through initiative or referendum. In 2000, Arizona’s voters gave an independent commission the power to draw district lines, a model that California’s voters have since adopted. But after the 2010 census, the state’s Republican legislators were unhappy with the commission’s work and sued, arguing that the elections clause of the U.S. Constitution gives state legislatures the exclusive authority to draw district lines.
They had a reasonable argument. Article I, Section 4, Clause 1 of the Constitution is pretty straightforward: “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” This wording led Justice Antonin Scalia, in his dissent, to call the majority opinion “outrageously wrong” and “utterly devoid of textual or historic support.”
As the majority opinion noted, that clause continues: “But the Congress may at any time by law make or alter such regulations.” The purpose of the clause is not to limit the power of citizens but to place state election laws under federal supervision. The ruling rests on century-old precedents upholding the use of referendums to enact laws, including laws drawing legislative districts.
Undoubtedly some founders, suspicious of direct democracy, would have been horrified at the initiative and referendum process. And undoubtedly voters are capable of approving ill- considered laws. But two centuries of experience have shown that legislators routinely manipulate election laws in their favor and oppose laws that might subject them to greater levels of competition — a practice that the founders would also have abhorred.
The court’s 5-4 decision saves not only Arizona’s redistricting commission but potentially hundreds of other election laws nationwide that voters have adopted. It also gives free rein to citizens who wish to organize petition drives to change laws governing primary elections, campaign finance, early voting, and voter registration and identification. Democratic expression has prevailed over constitutional literalism.