The Value of Democracy
Independent Redistricting Commissions as a Solution for Partisan Gerrymandering
The Consent of the Governed Part 5// Listen to this as a podcast.
Part I: The Nuclear Option
On November 1, 2011, the Arizona State Senate voted 21–6 along party lines to remove Colleen Coyle Mathis from the state’s independent redistricting commission. Mathis had been the chairwoman and the sole independent member of the five-member committee appointed to redraw the state’s congressional and legislative district maps following the 2010 Census. The impeachment of Chairwoman Mathis, prior to it’s initiation, had been known as “the nuclear option” in the long-running battle between the Arizona Independent Redistricting Commission and the Republican-controlled state government, and talk of impeachment had generally been dismissed by Democrats as “saber rattling.” Only a month before the State Senate voted to impeach Mathis, then-Governor Jan Brewer, also a Republican, had called the congressional map produced by the commission “simply gerrymandering at its worst.”
The vote in the state Senate followed Governor Brewer’s initiation of the impeachment process on October 26, 2011, when she sent a letter of grievances to Chairwoman Mathis. In the letter, Governor Brewer accused Chairwoman Mathis of committing “substantial neglect of duty and gross misconduct in office while serving on the Independent Redistricting Commission.” Her justification to impeach was based on the criteria that Mathis had used in the new congressional maps proposed by the Independent Redistricting Commission (also known as the IRC). Brewer criticized Mathis’s prioritization of competitiveness in the commission’s redistricting of the Arizona congressional map. Additionally, Brewer asserted that the IRC had “violated constitutional requirements” by engaging in gerrymandering practices such as breaking up communities of interest without regard for compactness and contiguity, as well as making the creation of three districts along the southern border a redistricting goal. The impeachment ostensibly targeted all five commissioners, though the removal of Chairwoman Mathis was the Republican-controlled state government’s primary objective.
The impeachment was immediately condemned by Arizona Democrats. According to an article from Roll Call published October 26, 2011: “Arizona Democratic Party Executive Director Luis Heredia described the governor as ‘drunk with power,’ calling the move ‘a brazen power grab that would rival any in Arizona history.’” Additionally, according to a Politico article from November 1: “Andrei Cherny, chairman of the Arizona Democratic Party, called the impeachment vote ‘a historic abuse of power without parallel in modern American history.’”
Despite Democrats’ objections, the impeachment went through without difficulty, and Colleen Mathis was removed from her position as chairwoman of the IRC on November 1, 2011.
Part II: Keeping Politics Out of It
The Arizona Independent Redistricting Commission began in 2001, after a ballot initiative, Proposition 106 (also known as “Fair Districts, Fair Elections”), passed with 56% of the statewide vote a year earlier, in 2000 (FiveThirtyEight, Competitive Elections in Arizona, 6:27). Proposition 106 was put on the ballot by a group of voters across party lines, including Republicans, Democrats, and unaffiliated voters (FiveThirtyEight, Competitive Elections in Arizona, 5:48). It amended the state constitution and shifted power over the redistricting process from the state legislature and the governor to a five-member citizen commission, which was comprised of two Democrats, two Republicans, and one independent (Colleen Mathis, Daniel Moskowitz, and Benjamin Schneer, The Arizona Independent Redistricting Commission, 3). This partisan composition roughly matched the state electorate, which had a roughly even split of registered Republicans, Democrats, and unaffiliated voters.
Colleen Coyle Mathis, who was eventually impeached from the IRC in November 2011, first became involved in the commission in 2010, when she stumbled across a pamphlet published by the IRC that called for applications for the independent seat on the commission. She applied and was selected to become the sole independent on the commission, also making her the chairperson and the crucial deciding vote.
Almost immediately after taking office, Chairwoman Mathis came under attack from both Republican voters and politicians. The battle over the Arizona IRC came at the tail end of the Tea Party Movement, which was a conservative grassroots movement begun in 2009 that was a reaction to the election of President Barack Obama, his handling of the Great Recession, and the passage of the Affordable Care Act. When Mathis voted often with the two Democratic members of the commission, many Tea Party activists and other Republicans accused Mathis of being a secret Democrat, sabotaging the nonpartisan mission of the IRC.
At the same time as conservative-leaning voters were becoming increasingly suspicious of — and angry at — Mathis, the IRC attempted to become more transparent and responsive to public input. Mathis described this outreach effort in a paper she co-authored with Daniel Moskowitz and Benjamin Schneer and was published by the Harvard Kennedy School of Government in September 2019: “Before a single line was drawn, the commission embarked on a ‘listening tour,’ where commissioners traveled the state to host 23 public hearings exclusively held to obtain input on what the redistricting criteria set forth in the state constitution meant to Arizona citizens. Then, during the line-drawing phase, the commission provided time for public comment at all of its business meetings… Finally, once the commission completed drawing draft maps, the commissioners again traveled around the state to 30 towns and cities to gather feedback on their work. Ultimately, the commission received more than 7,400 items of public input along with 224 maps suggested by the public,” (Mathis, Moskowitz, & Schneer, 4–5). The feedback from the public informed the final drawing of the lines and directed the commission throughout the entire redistricting process.
However, many of the public hearings did not go as expected. Tea Party activists descended on them and attacked Mathis for her perceived Democratic bias. According to an article published by the Associated Press in November 2019, “At a public meeting of the panel at Pima Community College on a scorching hot June afternoon in 2011, one person after another berated Mathis. The speakers were angry about what they thought were Democratic-leaning decisions, including the hiring of a mapping consultant with ties to President Barack Obama’s first presidential campaign.”
Here’s one Arizonan who attended the public hearing at Pima Community College in June 2011: “So slanted have your votes been against Republicans, that there is no question what the goal of this commission is. But what can we expect when the independent is not really an independent? She’s married to an activist Democrat,” (FiveThirtyEight, Competitive Elections in Arizona, 1:36–1:48).
Here’s another activist: “You know, I thought this commission was supposed to be non-partisan. Damn it, you can’t get any more partisan than this!” (FiveThirtyEight, Competitive Elections in Arizona, 2:43–2:53).
The Republican outrage directed at the IRC in June 2011 was fueled by the commission’s hiring of a mapping consultant firm that had worked for Democrats in the past. Additionally, Republicans were concerned with Mathis’s husband, Christopher Mathis, who was a life-long Republican but had recently been working for a Democratic candidate for a state legislative seat. Colleen Mathis dismissed the Republican insinuation that her husband’s politics determined her actions as a part of the commission. From the Associated Press: “She found it insulting and sexist that critics couldn’t separate her husband’s work from hers. She made her decisions based on what she felt was right, she said, and what was required of her by law, including provisions that emphasized competitive districts that put the commission at odds with Republicans in power.”
At this point in the map-drawing process, Mathis also received criticism from the two Republican members of the IRC. In an interview in 2019, Scott Day Freeman, one of those Republicans, said the congressional and legislative maps, as well as (what he perceived to be) a lack of transparency in the redrawing, were “constitutionally suspect.”
Chairwoman Mathis began to receive death threats. According to the Arizona Republic, after lawsuits were filed against the IRC, “The panel’s office was also broken into and their computers stolen (no suspects were ever arrested in that incident).” Colleen and Christopher Mathis put plywood boards on their windows and installed floor bolts on their door to secure themselves against any violence directed at them by far-right extremists. When asked about the plywood boards on the FiveThirtyEight Politics Podcast, Colleen Mathis said, “We just felt kind of like it would be nice to be able to sleep at night and not worry that somebody was looking in the window or going to do anything,” (FiveThirtyEight, Competitive Elections in Arizona). Sometimes, Mathis stayed at friends’ and neighbors’ houses when her own home became too dangerous. Around this time, Mathis also met with FBI agents to discuss threats to her life.
That July, Republican state Senator Frank Atenori said of the ongoing legal battle between the Republican-controlled state government and the IRC, “The gun is loaded and it’s just figuring out what target to point it at and when to pull the trigger.”
This comment was particularly distasteful at the time, given the fact that U.S. Representative Gabby Giffords had been shot in the head at a constituent event in a grocery store parking lot in Tucson only six months earlier. Giffords survived the shooting, but six others, including a federal district court chief judge and a nine-year-old girl, did not. Senator Atenori later said that he was using “military analogies” that were not meant to be a threat.
Needless to say, the Arizona Independent Redistricting Commission did not exactly succeed in removing politics from the redistricting process. The simple truth is that the drawing of district lines is going to be political, no matter who does the drawing. Said Chairwoman Mathis, “You just can’t take politics out of it.”
In redistricting, the composition of Congress and state legislatures is at stake, meaning that both Democratic and Republican politicians are invested in the partisan composition of maps produced by redistricting commissions — including independent commissions. Justin Levitt, associate dean of Loyola Law School in Los Angeles, California, said that the Arizona IRC was controversial “because political leaders in the state have tried to make it very controversial.” Furthermore, said Levitt, “She (Mathis) was the chair of the commission that the prevailing party didn’t appreciate. The commission put their heads down and did the job citizens told them to do.”
The IRC eventually produced a redrawn congressional map for the state, which further upset Republicans. The partisan composition of the map was four solid Republican districts, two solid Democratic districts, and three tossup seats.
Keep in mind, Arizona leans Republican, but only slightly: in the 2016 presidential election, Donald Trump won the state by only 3.5%, receiving 48.1% of statewide votes compared to Hillary Clinton’s 44.6%. More recently, however, Arizona has shifted slightly to the left: in the 2018 race for Arizona’s open Senate seat (following the death of Senator John McCain), Democrat Kyrsten Sinema defeated Republican Martha McSally by 2.4%, with Sinema receiving 50% of votes and McSally receiving 47.6%. Additionally, as of August 28, 2020, Joe Biden has a 4.3% lead in the polls in Arizona over Donald Trump.
Given that context, the map drawn by the IRC and Chairwoman Mathis in 2011 was fairly egalitarian, favoring neither party substantially more than the other. Republicans need to win only in one of the three swing districts in order to have a majority of the state’s Congressional seats, while Democrats need to win all three tossup districts. This reflects Arizona’s slight Republican tilt while maximizing the number of swing districts, which produce representatives that are more responsive to the demands of constituents than those from solid blue or red districts. Since the new Arizona Congressional map was drawn in 2011, Republicans have held a majority of the congressional delegation twice — following the 2014 and 2016 elections — and Democrats twice — following the 2012 and 2018 elections. This roughly matches the partisan voting shifts in Arizona in the past decade.
Mathis’s IRC was unique in its prioritization of drawing competitive districts. In fact, as Galen Druke, host of the FiveThirtyEight podcast The Gerrymandering Project, said, “Arizona is the only state in the country that requires officials to draw competitive districts when making political maps,” (FiveThirtyEight, Competitive Elections in Arizona, 3:43–3:49). The practice of valuing competitiveness as much as other redistricting criteria such as compactness and minority representation began, to some extent, with Chairwoman Mathis. Said Mathis: “Some of the most competitive races in the country are in Arizona now, and I attribute that directly to the commission’s work.”
Mathis’s drive to produce competitive districts came from her interpretation of the Arizona Constitution’s mandate for the IRC. In the state Constitution, six criteria are established for the drawing of congressional and legislative district lines: (1) redistricting must comply with the U.S. Constitution and the Voting Rights Act, (2) districts must have roughly equal populations, (3) districts are to be relatively compact and must be contiguous, (4) communities of interest must be maintained, (5) redistricting must be informed by the state’s physical and human geography, and (6) competitive districts must be drawn when possible (Arizona Constitution, Article 4, Part 2, Section 1). This sixth criterion, described in Article 4, Part 2, Section 1 of the Arizona Constitution, reads “To the extent practicable, competitive districts should be favored where to do so would create no significant detriment to the other goals,” (Arizona Constitution, Article 4, Part 2, Section 1). Until Mathis took office, this sixth criterion was largely ignored in the redistricting process. Her map achieves this mandate, creating three competitive districts, while also succeeding in the other five criteria: it complies with the Constitution and the Voting Rights Act; it maintains population equality across districts; all districts are contiguous, and it scores decidedly middle-of-the-road in terms of compactness, scoring as less compact than states like New York but more compact than states like Missouri, using a common compactness measured called the Polsby-Popper Index; it maintains communities of interest; and it is drawn in accordance with state geography.
In truth, Mathis’s and the IRC’s maps were manifestly reasonable. So, too, was Mathis’s cartographic philosophy: the Arizona Constitution clearly delineates competitiveness at the same level as other redistricting criteria.
Part III: The Legislature vs. the People
Two weeks after the Arizona State Senate voted along party lines to remove Mathis from her position as chairwoman of the IRC, Mathis went to the Arizona Supreme Court to argue that there was no sufficient justification for her removal. She was represented by former Arizona Chief Justice Thomas Zlaket who said before the court that if Mathis lost her case, the IRC “becomes a joke, a laughable joke subject to manipulation by the very people that the commission was designed to insulate from.” Following the two-hour proceeding, the court unanimously overturned the impeachment.
Republicans, dissatisfied with the ruling, took Mathis to federal court, and the suit eventually landed in the U.S. Supreme Court in 2015. The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, revolved around Article 1, Section 4 of the U.S. Constitution, which states, “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof,” (U.S. Constitution, Article 1, Section 4).
The appellants, the Republican-controlled state legislature, argued that, as Paul Clement, who represented the legislature before the Supreme Court, said in oral arguments, “when the Framers used the word ‘legislature’ they meant the word ‘legislature.’” Side note: I mentioned Paul Clement in episode #4, as he also represented the appellants in Rucho v. Common Cause.
In other words, the appellants argued that when the Founders wrote the word “legislature,” they intended for state legislatures to have sole control over the redistricting process. A ballot initiative creating an independent redistricting commission that was not supervised or directed by the legislature, and that was created without the legislature’s approval, is, therefore, unconstitutional. The consequences of a Supreme Court ruling in favor of the appellants cannot be understated. Arizona is — both today and back in 2015 — not the only state with an independent redistricting commission — far from it. A ruling in favor of the appellants would most likely put a halt to independent redistricting commissions, at the time affecting the drawing of 152 districts (or about a third of Congress).
In oral arguments, advocate for the appellants Paul Clement narrowed his definition of “legislature” as used in the Constitution, to mean, as he said, state legislatures, and that the drawing of congressional and legislative maps should be completely within the discretion of state representatives and state senators.
In contrast, the plaintiffs, represented by Seth Waxman, argued that such a narrow definition of “legislature” was, in actuality, counter to the intention of the Constitution and its Framers. In oral arguments, Waxman said that when the Framers established the Constitution, “it was understood that ‘legislature’ meant the body that makes the law.” The plaintiffs used Article 4, Part 1, Section 1 of the Arizona Constitution to support the claim that this “body” that comprises the legislature includes the people in its definition: “The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature,” (Arizona Constitution, Article 4, Part 1, Section 1). Thus, the people of Arizona do have the power to pass ballot initiatives that amend the state constitution and change the role of the state legislature in the redistricting process.
Clement counterred that the plaintiffs draw a false equivalent between the people and the legislature. The Constitution recognizes that they are clearly separate entities, and delegates the drawing of district lines solely to the legislature — not to the people. Waxman responded simply and effectively: “The gravamen of [the legislature’s] suit is that the people ‘usurped’ the power of a legislative body that they themselves created.” Waxman is right, American democracy is founded on the essential concept that the people ultimately hold the power and form governments to provide them with security and sustenance, thus establishing society. The people created the legislatures, and, therefore, they have the right to amend its powers.
The Supreme Court ruled 5–4 in favor of the plaintiffs in a victory for the Independent Redistricting Commission. Justice Ruth Bader Ginsburg wrote the majority opinion and was joined by justices Breyer, Kennedy, and Sotomayor. On the flip side of the ruling, justices Alito, Roberts, Scalia, and Thomas dissented.
Ginsburg’s opinion affirms the right of state’s to have referenda and ballot initiative processes that amend state constitutions, even if changes relate to federal elections: “It is characteristic of our federal system, that states retain authority to establish their own governmental processes and to serve as laboratories for experiment in democratic governance. We resist reading the Election Clause to single out federal elections as the one area in which states may not use citizen initiatives as an alternative legislative process. The framers may not have imagined the modern initiative process one in which the people of a state exercise legislative authority on an equal footing with the authority of an institutional legislature but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of government power,” (Arizona State Legislature v. Arizona Independent Redistricting Commission, Opinion Announcements, 7:12).
A year later, the maps produced by Mathis and the Arizona IRC were affirmed unanimously by the Supreme Court based on the precedent of Arizona State Legislature v. Arizona Independent Redistricting Commission.
The success of reformers in this pair of cases essentially means that, as Wendy Weiser, director of the Democracy Program at the Brennan Center for Justice, said, “The Constitution is not a barrier to states who want to address the problem of partisan gerrymandering.”
The importance of the Arizona IRC case is twofold: first, it affirmed the right of the people to form completely nonpolitical and independent redistrict commissions by ballot initiative; and second, it allowed for the prioritization of creating competitive races in congressional and legislative redistricting.
In the last iteration of The Consent of the Governed, I talked about Rucho v. Common Cause, the 2018 Supreme Court case that essentially shut the door on judicial resolutions to partisan gerrymandering. While the Supreme Court shunned its constitutional duty to protect the right of citizens to participate in meaningful elections, Rucho did not affect or alter the role that independent redistricting commissions play in many states. As a result of Rucho, IRCs are now one of the best means to combat partisan gerrymandering in the United States. In her 2019 Harvard Kennedy School of Government paper, Colleen Mathis wrote, “[…] after the Rucho decision, independent redistricting commissions represent perhaps the most viable means to combat partisan gerrymandering,” (Mathis, Moskowitz, & Schneer, 1).
The ruling opened the door for independent redistricting commissions to be established across the country through ballot initiatives. Since the Arizona State Legislature ruling, four states — Colorado, Michigan, Missouri, and Utah — have amended their constitutions to remove redistricting power from state legislatures and give that power to nonpartisan, independent commissions. In three of those four states, initiatives passed with more than 60% support; in the fourth state, Utah, the initiative barely passed, with only 50.3% support. Those states are joined by Ohio, whose constitution was amended by an initiative that was allowed on the ballot by the state legislature, after a tougher initiative was expected to pass. Those five states — Ohio, Colorado, Michigan, Missouri, and Utah — have a total of 49 representatives, which means that in the last four years, about 11.3% of the U.S. House has been un-gerrymandered through ballot initiatives.
Despite the recent successes in redistricting reform through the institution of independent redistricting commissions, this approach to reform is limited by the fact that only twenty-six states allow for ballot initiative processes. In states like Pennsylvania, the only way the state constitution can be amended is through the state legislature, which is nearly impossible because the very problem that requires amending the state constitution for its resolution (partisan gerrymandering) is the same problem that keeps the majority of the state legislature comfortably in power. In many cases, asking the legislature to eliminate gerrymandering is, essentially, asking them to forfeit their majority and, often, their seat in the legislature. Gerrymandering is a truly nonpartisan institution, meaning that the majority party, regardless of its ideology, nearly always tries to protect it. It is the quintessence of the refrain that power acts upon the powerful: it transforms the majority party into the gerrymandering party. Therefore, if there is to be a resolution to partisan gerrymandering, it must exist outside of the world of partisan politics. In lieu of a Supreme Court ruling, the solution is in either ballot initiatives and the establishment of IRCs or gerrymandering suits brought before state supreme courts using state constitutions, rather than the U.S. Constitution, as legal foundation.
I had originally intended for this article to focus on the second outcome of Arizona State Legislature v. Arizona Independent Redistricting Commission, that of competitiveness becoming a legitimate redistricting criteria, but as I dove deeper into the case and the story behind it, I found the legitimization of independent redistricting commissions as a solution for gerrymandering more compelling and more essential. The balance between competitiveness, compactness, maintaining communities of interest, creating minority-majority districts, ensuring population equality, and using other criteria to draw district lines is important, but until partisan gerrymandering is eliminated, the discussion over criteria is inconsequential. Reform must move forward, and getting caught up in the minutiae of compactness measurement or what defines a community of interest does not solve the central problem of redistricting: How do you get the government that was put in power by gerrymandering to end gerrymandering?
