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Supreme Court sides with the people, not the politicians

Today the Supreme Court reinforced the principle that the voters should choose their representatives, not the other way around, in upholding an Arizona law that puts the task of drawing congressional district boundaries in the hands of an independent commission rather than the legislature. Maryland, home to some of the most egregiously partisan gerrymandering in the country, ought to take note.

In 2000, Arizona voters established an independent, five-member commission to handle the re-drawing of congressional and legislative district lines in an effort to reduce partisanship in the process. After the 2010 census, the legislature sued, arguing that the commission violated the Constitution's Elections Clause, which says, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." At issue was not just whether the people, through a ballot initiative, could vest the redistricting function in an independent commission but, potentially, whether that power could be delegated under any circumstances. An adverse ruling by the court could have put at risk not just initiative-derived redistricting commissions in states like Arizona and California but also dozens of other laws across the nation, including in Maryland.

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Much of the majority opinion, written by Justice Ruth Bader Ginsberg, and of the main dissent, written by Chief Justice John Roberts, center on the question of whether the term "legislature" could encompass a ballot initiative in a state whose constitution allows that form of lawmaking. Justice Ginsberg makes a persuasive argument that the historical record, both from the time when the constitution was written and more than a century later when the initiative was gaining popularity, supports that interpretation. But it's not particularly relevant in Maryland, as our constitution allows only for the referendum — that is, an act by which the people reject a law enacted by the legislature — rather than an initiative.

More pertinent, though, are the portions of Justice Ginsberg's opinion affirming the propriety and indeed the wisdom of taking the power to draw district lines out of the hands of self-interested politicians. "It would be perverse to interpret the term 'legislature' in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators' ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be 'chosen ... by the People of the several States,'" she wrote. Quoting the Federalist Papers, Justice Ginsberg noted the founders' desire to make sure that members of Congress would have "an habitual recollection of their dependence on the people."

What Maryland and other states have achieved through increasingly sophisticated gerrymandering techniques is a decennial reminder of how little dependence members of Congress have on the people and how much entitlement they feel in determining the districts in which they run. During the last two redistricting cycles, Democratic governors and legislatures have worked together to shift a House delegation from a four-four split between Democrats and Republicans to a seven-to-one advantage to the Democrats. They achieved that by packing the 1st District with as many Republican voters as possible and by diluting the influence of Republicans on the other seven districts. No noble purpose was offered for this exercise beyond a desire to deliver more seats for the Democrats at a time when Republican-controlled states were doing exactly the same thing to favor their party. Meanwhile, incumbent members of Congress jockeyed to ensure that their districts included favored constituencies or institutions. The result is that some of the state's districts are ranked as among the most convoluted in the nation.

Gov. Larry Hogan is Maryland's last, best hope to break the cycle. He has pledged to pursue redistricting reform after hearing recommendations from a study commission — entirely reasonable given the variety of systems now employed by various states. But he needs to follow through quickly. Many states that have independent commissions have gotten them as a result of voter initiatives because the party that controls the legislature typically has no incentive to change the status quo. But in Maryland, it now does. If Mr. Hogan is re-elected in 2018, Maryland's constitution will put him in the leading role in drawing new districts after the 2020 census. So long as neither he nor the Democrats in the legislature feel certain about whether he will win, both sides have an incentive to take politics out of redistricting and affirm what Justice Ginsberg, quoting Alexander Hamilton, called "the true principle of a republic": "that the people should choose whom they please to govern them," not that the politicians should choose whom they please to elect them.

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