The “Gun Behind the Door” and Independent Redistricting Commissions

In his recent post, “A Note on Redistricting Initiatives, Legislatures and the Popular Will,” Bob Bauer notes that redistricting initiatives are not somehow by definition “ill-founded,” as “‘democratic’ interests lie on both sides of this equation.” He’s right, of course. Initiatives are not a panacea for what ails representative democracy in America.

Leaving policy or even normative concerns aside, however, redistricting reform similar to Arizona’s independent redistricting commission is less likely to occur in states without the initiative process.  As this table of election reforms shows (published in “Direct Democracy and Elections and Ethics Reform,” in Democracy in the States: Experiments in Elections Reform), initiative states (both those that use the process and those that have the process) have been more likely than non-initiative states to adopt an independent redistricting commission to draw state legislative seats. Interestingly, though, initiative states have been no less likely to adopt an independent redistricting commission to draw Congressional seats.

The fact that non-initiative states are as likely as those with the initiative process to adopt several election reforms (as the election reform table indicates) is refreshing. But don’t hold your breath for a state legislature to create an independent redistricting commission to redraw legislative districts, except if citizens hold the “gun behind the door,” Woodrow Wilson’s apt description of the threat of the citizen initiative.

SCOTUS, the Arizona Independent Redistricting Commission, and Direct Democracy in the American States

There seems to be some confusion with respect to the adoption of direct democracy in Arizona as it relates to the March 2, 2015 U.S. Supreme Court oral arguments of Arizona State Legislature v. Arizona Independent Redistricting Commission.

In 1911, citizens of what would become the state of Arizona were not only very supportive of the initiative and referendum processes, they also supported the recall of judges.  In February, 1911, Arizonians ratified a state constitution with the initiative, referendum, and recall, with nearly 80% approval.  President Taft, however, was no such fan, and in August 1911 he vetoed legislation to make AZ a state because of the judicial recall provision in the AZ constitution.  The judicial recall was subsequently removed by the territorial legislature from the draft constitution. Arizonians ratified the revised state constitution in December 1911, without the recall, with nearly 90% approval at the polls.   Taft approved legislation in February 1912 creating Arizona as the 48th state. The new constitution included both the initiative and referendum.

In 1912, Arizonians amended Section 1, Article 8 of their state constitution, when they adopted a legislative referendum “extending the recall to all public officers of the State holding an elective office, either by election or appointment.”  In that election, men also adopted by a two to one margin a citizen initiative granting women suffrage.

As I mentioned in a post yesterday, the citizen initiative has been used by citizens to adopt numerous election and ethics reforms across the states for more than a century.  Indeed, the first statewide initiative was in 1904, when voters in Oregon overwhelmingly (three to one) adopted a direct primary nominating convention law.

More on the history of the referral by state legislatures and the subsequent adoption of the initiative by citizens during the Progressive Era can be found in my 2008 APSR article, available here.  More on the use of the initiative to adopt statewide election and ethics reforms can be found in my chapter in Bruce Cain, Todd Donovan, and Caroline Tolbert’s 2008 edited volume, Democracy in the States, here

Arizona State Legislature v. Arizona Independent Redistricting Commission risks Elections and Ethics Reform in the American States

In his review of the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission heard by the U.S. Supreme Court today, election law scholar Rick Hasen writes, “The worst part is that the initiative process is the best way to deal with legislative self-interest in the political process.”

Indeed, it is.

As I write in my 2008 essay, “Direct Democracy and Elections and Ethics Reform,” in Democracy in the States: Experiments in Elections Reform edited by Bruce Cain, Todd Donovan, and Caroline Tolbert (Washington, DC: Brookings), “State legislators are likely to alter institutions so as to keep power and win elections. As such, we should not expect lawmakers to adopt either election or ethics reforms that may diminish their chances of winning and holding office.”  The chapter offers “a comparative and historical examination of the popular adoption and policy impact of a variety of election and ethics ballot initiatives in the American states,” and it also “examines recent efforts by state legislatures to regulate and restrict the use of the initiative.”