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Who Wins and Loses with Supreme Court's Gerrymandering Case

Supreme Court's Gerrymandering Case

Apartment Industry Colleagues,

The New Year has already been full of high profile issues for the Supreme Court of the United States (SCOTUS). In February the Court heard arguments over the use of disparate impact theory in identifying violations of the Fair Housing Act. This month a case comes before the Court that will determine the fates of 9 million individuals currently receiving health care under the Affordable Care Act. Finally, the SCOTUS will hear arguments about one of the most basic elements of our electoral system – the borders which determine Congressional districts. More specifically, who determines who represents us in the House of Representatives?

In several past editions of this column I have bemoaned one of the central causes of our hyper-partisan political dialogue – gerrymandering of Congressional districts by state legislatures. Though this strategy is not new, it seems to have gotten worse in the past several rounds of the census. Republican and Democratic-controlled state legislative bodies draw the lines so that the party in power gets the most seats and the opposition is concentrated in as few seats as possible. This shifts the electoral competition from the general election to the primary where the most conservative or liberal candidates win out. This gives enormous power to the worst fringe elements from both sides and leads us to the current situation – a House nearly devoid of inter-party collaboration or compromise. Why are we surprised that we can’t even get a funding bill passed for the Department of Homeland Security?

But some states recognized this problem some time ago and injected independence into how the district lines are drawn for their elected officials. According to the National Conference of State Legislatures, Arizona, California, Hawaii, Idaho, Montana, New Jersey and Washington all have independent commissions that draw the lines which are not subject to approval by the state legislature. Florida, Iowa and Maine also have independent commissions, but their district maps are ultimately approved at the state house. Excluding those states that only have one Representative, the Congressional lines in the remaining 34 states are drawn by the state legislature. 

The plaintiff in the case before the SCOTUS is the Arizona State Legislature while the defendant is the Arizona Independent Redistricting Commission. The question on the table is whether the U.S. Constitution permits an entity other than the state legislature to craft Congressional districts. Arizona adopted a commission-style system in 2000 through an amendment to the state constitution. In 2012, after the Commission drew new Congressional boundaries, the Legislature filed suit claiming the U.S. Constitution does not allow the power to be taken out of the hands of elected officials when it comes to Congressional district boundaries. 

According to Lyle Denniston of, the plaintiff’s argument rests on specific language in the Election Clause of the Constitution saying that the “…times, places and manner of holding elections for Representatives shall prescribed by the state legislature thereof…” They take a strict reading of this while the defendant takes a broader reading of that clause, especially in light of federal law passed in 1911 to implement this provision which says that redistricting shall be done “in the manner provided by the law” of that state. Arguments were made in front of the court on March 2 and according to some observers, the Court did not seem sympathetic to the rationale of the lawyers speaking on behalf of the Commission. 

So, who wins and who loses if the Court determines that independent commissions for drawing Congressional lines are not allowed under the Constitution? Certainly, political parties, especially those who control a state legislature, will win because they are better able to draw Congressional lines to their party’s benefit. The losers are the rest of us since it will only increase the partisanship and division in the Congress which undermines its ability to address the nation’s priorities. I also believe that the apartment industry suffers since our issues require support from both sides of the aisle working together. If this is further eroded, I fear our public policy objectives will be set back.

The SCOTUS should release its decision by June of this year.

That’s all for now. Talk with you next month.