How's that for a sexy title? Pat Powers takes Rep. Bill Thompson to task for submitting a bill (pdf alert) that requires South Dakota legislative districts be drawn by an independent commission rather than by the Legislature. Pat thinks this is patently unconstitutional. Why? He argues the South Dakota Constitution gives the apportionment power to the Legislature. Read the whole section here, but here is the operative part:
The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators....If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
Dave Newquist dissents from the Powers interpretation:
In the Thompson bill, the Legislature has full oversight in the composition of the redistricting commission and authoritiy to review the plans and make recommendations. It also has the authority to delegate its tasks. All the Thompson bill does is remove the process from the coils of any partisan bull snake.
Let me suggest an third alternative, one the splits the difference perhaps between these two constitutional interpretations. Dave Newquist is certainly correct that legislatures have the power to delegate authority. For example at the federal level Congress delegates regulatory power to the Food and Drug Administration and even to independent regulatory commissions such as the Federal Communications Commission. It just happens that Iowa actually has an independent commission draw the district lines for both federal and state legislative districts (see here). I happen to like the Iowa process and wish all states would adopt it.
But one will quickly note that in the Iowa system the Legislature and governor have final say. The commission provides three plans. The legislature votes on those three plans. As in the South Dakota system, if the legislature cannot come to a decision the state Supreme Court steps in. The governor retains veto power over both types of plans (legislative and judicial).
This is a significant departure from the Thompson bill. That bill only allows for the legislature to give recommendations, but the legislature retains no actual decision making authority in the process. As Pat Powers notes, under the Thompson bill the commission's apportionment plan becomes law. This is a law that was never voted on by the legislature or signed by the governor. This does strike me as a violation of both the letter and spirit of the Constitution. Rep. Thompson suggests the legislature create an independent entity which has little oversight from the people or their representatives. The Constitution clearly anticipates the legislature being the decision maker in the apportionment process.
Rep. Thompson is to be commended for submitting a bill that has good intentions, but I am afraid I must agree with Mr. Powers that the bill cannot withstand constitutional scrutiny. If he truly believes in his bill's content Rep. Thompson should submit it as a constitutional amendment.
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