By Lisa Soronen

If the U.S. Supreme Court’s same-sex marriage ruling last week was an affirmation of marriage generally, the court’s redistricting ruling is an affirmation of direct democracy.

In (another) 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission the court held that the Constitution’s elections clause permits voters to vest congressional redistricting authority entirely in an independent commission. NCSL filed an amicus brief in this case in support of the Arizona Legislature.    

In 2000 Arizona voters adopted Proposition 106, which places all federal redistricting authority in an independent commission. The elections clause states:  "[t]he 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.”

Justice Ruth Bader Ginsburg’s majority opinion relies on the history and purpose of the elections clause and the “animating principle of our Constitution that the people themselves are the originating source of all the powers of government,” in ruling that redistricting commissions may operate independently of the state legislature.

More specifically, founding-era dictionaries typically defined legislatures as the “power that makes laws.” In Arizona, that includes the voters who may pass laws through initiatives.

The purpose of the elections clause was to “empower Congress to override state elections rules” not restrict how states enact legislation. “We resist reading the elections clause to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process.”

While voter initiatives did not exist at the time of the founding, their invention was “in full harmony with the Constitution’s conception of the people as the font of governmental power.” Finally, if state legislatures can override redistricting commissions, other voter-initiated election laws may be in jeopardy.  

While Ginsburg began her opinion by noting that Arizona voters adopted Proposition 106 to address partisan gerrymandering, she agreed that they have not been entirely successful at achieving this outcome.  

Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion while Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito dissented.

Lisa Soronen is the executive director of the State and Local Legal Center and writes frequently for the NCSL blog about the U.S. Supreme Court.