The California Redistricting Commission Will Soon Be Toast

Fox and Hounds Daily | July 10, 2019

This may be the last version of the California redistricting commission.

That may sound like a surprising prediction. After all, many commentators, including Joel Fox in this space, have argued that redistricting commissions may become more important as a result of a U.S. Supreme Court decision in late June.

The logic of those commentators goes like this. Since the Court essentially endorsed partisan redistricting by state legislatures and said that the federal courts couldn’t stop partisan gerrymanders, one of the few ways left to stop such gerrymandering is by having voters adopt redistricting commissions like California’s.

But that is an optimistic way to look at the future.

The make-up and political of the Supreme Court point to a more pessimistic view.

California’s redistricting commission only barely survived a 2015 legal challenge to its constitutionality in the U.S. Supreme Court. But back then, Anthony Kennedy was on the court and provided the crucial vote to preserve the redistricting commission.

Now, he has been replaced by Bret Kavanaugh, who was one of the five justices who made this recent ruling that redistricting is a political process and belongs to the state legislatures.

Even more important, Chief Justice John Roberts authored this most recent decision; Roberts was in the minority that sought to rule California’s redistricting commission unconstitutional four years ago. Fox and others point to language in Roberts’ recent decision identifying other avenues for reform: “Both the states and Congress can take action – for example, by establishing independent redistricting commissions to draw maps.” But in this, Roberts is merely stating the 2015 precedent—a precedent with which he clearly disagrees.

Given the high court’s hostility, California’s commission, and similar commissions in other states, are likely to face new constitutional challenges. And next time the challenges will be decided by the five-justice majority that sees redistricting as belonging to state legislatures. These conservative justices, given their hostility to democracy, are unlikely to care much even when such commissions, like California’s, were approved by voters themselves via direct democracy.

The process of identifying members of a new redistricting commission has just gotten underway. Quite possibly for the last time.

View Original Publication: Fox and Hounds Daily