Columns » Jay Barth

Election reform endangered

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Lost in a U.S. Supreme Court term that will determine the future of Obamacare and marriage equality is a case that may well destroy the last best hope for combating partisan gerrymandering across the United States. The ruling in an Arizona case could reach beyond undermining an important effort to fight corrosive partisanship in Congress, threatening numerous election reforms across the country, including in Arkansas.

Across recent decades, the introduction of sophisticated mapping software has made possible aggressive partisan gerrymandering in congressional districts across the country. (The proposed "Fayetteville Finger" during the 2011 legislative debate over redistricting Arkansas's districts created outrage, but was actually pretty mild stuff in the world of partisan gerrymandering.) The Supreme Court's unwillingness to enter the "partisan thicket" of district line-drawing means that members of Congress almost all come from districts where the partisan outcome is preordained; the fact that these legislators are more likely to be threatened in a primary than in a general election pushes incumbents toward partisan purity that enhances polarization, leaving many Americans feeling disaffected and disempowered.

Citizens around the country — particularly in states with the outlet of direct democracy — have begun fighting back with the creation of independent redistricting commissions that take the drawing of district lines out of the hands of elected officials and generally create much more competitive general elections. Early this month, however, the Supreme Court heard oral arguments in a case challenging Arizona's 15-year-old independent commission as a violation of the Constitution's Elections Clause, which states that "the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." (District line-drawing has historically been seen as a component of the "manner" of elections.) The Commission's attorneys argue — and the federal Court of Appeals agreed — that the term "legislature" in the Elections Clause should be read to include ballot initiatives passed by the voters.

However, the Arizona legislature faced a friendlier audience at a Supreme Court hearing that often centered on competing dictionary definitions of "legislature." The Court's conservative majority appears ready to strike down the Arizona reform measure; if that happens, it would almost assuredly doom a similar voter-initiated provision in the neighboring state of California and also threaten commissions in four other states. Moreover, it would stymie efforts underway across the country to turn the tide on hyperpolarization and to steer the national political conversation away from the partisan margins and toward the more pragmatic middle.

Any win for the legislature in Arizona State Legislature v. Arizona Independent Redistricting Commission would be problematic, but if the Supreme Court constructs a broad ruling in striking down the measure, the Arizona case could set the stage for an array of federal court challenges to state election laws that have been activated by a vote of the people — either through the petition process or through referendum. Many of these measures are those that have modernized American elections, moving us away from a time when balloting shenanigans and fraudulent vote counts were common.

Because, as a direct democracy state, Arkansas does a good deal of policymaking at the ballot box, the state's election laws would be particularly susceptible to such challenges. According to the Brennan Center for Justice, at least five Arkansas election provisions could be threatened by a ruling that strikes down voter-adopted election provisions on broad grounds. Most important is the 1948 constitutional amendment that enacted Arkansas's voter registration laws. It was this amendment that was the basis for the Arkansas Supreme Court's decision last year striking down the General Assembly-enacted Voter ID law. Also at risk would be a 2002 constitutional amendment that created the right to a secret ballot in the state and a 50-year-old provision allowing the state's counties to move away from the paper ballot. So, not only would the promise of a less polarized political future be washed away if Arkansas could not create an independent districting body in the future, decades of hard work in protecting the right to vote in Arkansas could be at risk.

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