New York Times

WASHINGTON — An independent redistricting commission created by Arizona voters in 2000 seemed to be in trouble on Monday at the Supreme Court. Several justices suggested that the commission, meant to make the process of drawing congressional district lines less partisan, crossed a constitutional line.

About a dozen states have experimented with redistricting commissions that have varying degrees of independence from the state legislatures, which ordinarily draw election maps. Should the Supreme Court reject Arizona’s commission, at least one other, in California, is also likely to be in peril.

The case, Arizona State Legislature v. Arizona Independent Redistricting Commission, No. 13-1314, will turn on the meaning of a single word: “legislature.” The Constitution says that “the Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”

That means Arizona’s voters were powerless to strip elected lawmakers of their power to draw district lines, Paul D. Clement, a lawyer for Arizona’s Republican-led State Legislature, told the justices. The voters’ attempt to shift that power “to an unelected and unaccountable commission,” he said, “is plainly repugnant to the Constitution’s vesting of that authority in the legislatures of the states.”

Seth P. Waxman, a lawyer for the commission, responded that the state’s voters were exercising their own legislative power in seeking to overhaul the redistricting process. The constitutions of many states, including Arizona, he said, “have defined the legislative power to include the people by initiative.”

The two lawyers supported their competing interpretations with statements and materials from the founding era. But Justice Antonin Scalia said the most telling point was that every other use of the word “legislature” in the Constitution referred to a representative body rather than the state’s voters.

“All I want is one provision of the Constitution that clearly has your meaning,” Justice Scalia told Mr. Waxman. “And I looked through them all. I can’t find a single one.”

Justice Anthony M. Kennedy added that the 17th Amendment, which revised how senators are chosen, worked against Mr. Waxman’s position. Before the amendment, senators were chosen by state legislatures. They are now elected by voters.

“History works very much against you,” Justice Kennedy told Mr. Waxman, because a constitutional amendment, rather than a state referendum, was needed to make the change to popular election of senators.

Mr. Waxman said old dictionaries, including ones from Noah Webster and Samuel Johnson, supported his side. “All of them are in accord,” he said. “It was understood that ‘legislature’ meant the body that makes the laws.”

Justice Scalia, ordinarily a fan of this method of interpretation, was unimpressed.

“I don’t think it was a consensus definition at all,” he said. “You’ve plucked that out of a couple of dictionaries.”

“At the time,” he added, “there was no such thing as the referendum or the initiative. So when the dictionaries referred to ‘the power that makes laws,’ it was always the legislature.”

Justice Stephen G. Breyer said the rise of direct democracy over the last century or so may have altered the constitutional analysis.

“I think the great open question here is: ‘What happens when legislative power, over time, expands from a group of people sitting in the state’s capitol to those people plus a referendum?’” he said.

Justice Elena Kagan added that the Supreme Court should give states room to make choices about how to structure their governments. “We need to show a lot of respect to the state’s own decisions about how legislative power ought to be exercised,” she said.

Several justices worried about the implications of a ruling in favor of the Arizona Legislature. Justice Kagan suggested that such a decision could imperil not only other redistricting commissions but also “zillions” of laws concerning voting. She mentioned ones on voter identification, voting by mail and voting machines.

“All of these things were done by referendum or by initiative with the legislative process completely cut out,” she said.

Mr. Clement responded that those laws are different.

“Our position,” he said, “is not that the problem here is that somebody else got into the Legislature’s lane and purported to do something about elections. Our problem is once they got in that lane, they decided to wrest the Legislature from that process entirely on a permanent basis.”

The Arizona commission has five members, with two each chosen by Republican and Democratic lawmakers. The final member is chosen by the other four.

Republican lawmakers said the commission’s latest efforts favored Democrats and filed suit in federal court. A divided three-judge panel of the Federal District Court in Arizona ruled in favor of the commission, saying the Constitution’s reference to the “Legislature” included ballot initiatives like the 2000 measure.

“The elections clause does not prohibit a state from vesting the power to conduct congressional redistricting elsewhere within its legislative powers,” Judge G. Murray Snow wrote for the majority.