Last week’s ruling by the Supreme Court in Arizona Legislature v. Arizona Independent Redistricting Commission (AIRC) was one of the most important, but perhaps below-the-radar, decisions of the Term. The case raised the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission —i.e., one that is not controllable by the elected state legislature—to devise congressional districts. Arizona voters passed just such an initiative in 2000 (Proposition 106), and the elected Arizona legislature (acting as a body) challenged the initiative, bringing the case all the way to the Supreme Court. The elected legislature argued primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4) prevents a state from divesting district-drawing power from the elected state legislature. In the space below, I offer three key points that can be drawn from the case.
#1: It Is Now Clear That “(State) Legislature” in the Constitution Doesn’t Always Mean Elected Legislature, and Doesn’t Mean Elected Legislature When It Refers to the Power to Pass State Laws
The Elections Clause of the Constitution, Article I, section 4—the provision on which the elected Arizona legislature relied—reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”
The elected Arizona legislature’s argument against the independent commission was that the term “Legislature” in the Elections Clause refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, such that if another body—the commission—is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative. The elected legislature leaned extensively on a case, Hawke v. Smith, in which the Court prohibited an after-the-fact referendum from interfering with a state’s (already finalized) ratification of a federal constitutional amendment under Article V of the Constitution, which also uses the word “Legislature.” The Court in Hawke observed: “‘legislature’ . . . ‘was not a term of uncertain meaning when incorporated into the Constitution,’ and ‘what it meant when adopted it still means,’ namely, ‘the representative body which made the laws of the people.’”
But in rejecting the argument based on Hawke and its reading of Article V, the majority opinion in AIRC instead relied on two other cases, Ohio ex. rel. Davis v. Hildebrant, and Smiley v. Holm, in which the Court upheld, respectively, Ohio’s use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature, and Minnesota law’s inclusion of the governor in the districting process through the power of the veto. Crucially, the majority opinion (penned by Justice Ginsburg) read these two cases as meaning that Article V’s reference to “Legislature” is different from the Elections Clause’s reference to “Legislature.” The Court’s rationale was that in Article V, a legislature is making an up-down ratification decision, whereas under the Elections Clause, a legislature is passing generally applicable laws to govern the process of congressional elections. The majority last week was quite explicit: where the Constitution refers to a state “Legislature” in the context of a provision calling for state lawmaking (as opposed to ratification or other functions—like picking U.S. Senators in the 19th century under the original Constitution—that do not involve fashioning general regulatory policy), “Legislature” means state lawmaking process, and includes within its definition the people of a state undertaking direct democracy.
Indeed, Justice Ginsburg went out of her way to decide the Arizona matter on the basis of a broad constitutional reading of “Legislature” in the Elections Clause, when she very well could have simply held that a congressional statute on the books authorized the Arizona voters to do what they did. Recall that the last part of the Elections Clause ultimately gives Congress the plenary power to regulate congressional elections. Add to that the fact that the AIRC majority agreed with the commission that a federal statute in existence reflected congressional approval of use of initiatives (provided they are consistent with state law) in redistricting. In spite of this, the Court explicitly chose (contrary to so-called “avoidance” doctrines in which the Court looks for ways to dodge constitutional questions if reasonably possible) to rest its decision largely on a generous (and, to my mind, correct) reading of the Elections Clause. Under that reading endorsed by the Court, Arizona voters were allowed to do what they did even absent congressional approval.
#2: This Reading of the Elections Clause Has Implications for Article II
Allowing the people of a state to draw district lines undoubtedly clears the way for more reform of congressional election processes than a ruling the other way would have done. But congressional elections are not the only targets for federal election reformers. Readers of my column over the years will likely know that I have written extensively about a variety of grass-roots efforts to reform presidential elections, including the so-called National Popular Vote (NPV) Plan. The essential notion is for various states to sign on to an agreement that would require each signatory state to cast its electoral college votes not for the candidate who garnered a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. This system, with enough signatories, would virtually ensure that the winner of the presidential contest would always be the person who had won the largest number of votes from individual voters nationwide. In that way, the plan would treat the weight of every vote—regardless of the state in which the vote is cast—equally to that of every other vote in the country. Importantly, the agreement, by its own terms, would not go into effect until a combination of states sufficient to comprise a majority of the electoral college—that is, a combination of states whose electoral college allotments collectively total 270 or more—join it.
To date, the legislatures of ten states and the District of Columbia—which collectively account for 165 electoral college votes, well more than half of the 270 needed for the NPV bill to become effective—have passed laws to adopt the measure. And the bill is currently being considered in almost every if not literally every other state legislature. But one problematic aspect of the NPV movement thus far is that all the states that have adopted the NPV bill have been “blue” states—states that are generally assumed to lean towards the Democratic rather than the Republican candidate for President. Even though red states like Texas would seem to benefit from the plan (insofar as their voters would get more attention under a scheme in which every vote nationwide counted equally), a large number of red state legislatures seem not to get it. Or even if they get it, they might fear that they will be punished by the national Republican Party apparatus if they buck conventional party wisdom. For this reason, it may be that if the NPV Plan movement is going to prevail in a Red State (which it must do in order to have any realistic chance of national success), the people of the state might have to override or circumvent the elected state legislature. As compared to partisan state legislators, the voters of a state may focus more on what is right and fair nationally, and also on what is in the selfish attention-generating interest of that state—and less on the real or perceived harm done to (even their preferred) political party.
But all this raises the question whether the use of the initiative in this arena is compatible with the terms of Article II of the U.S. Constitution, which provides that “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress . . . .” (emphasis added). Up until now, it was somewhat unclear how the term “Legislature” in Article II would be interpreted in the context of a voter initiative. But given that when Article II uses the term “Legislature,” it refers to a process of passing a law that regulates presidential elector selection processes in a state generally, there is every reason to believe that the analysis of the Elections Clause in last week’s ruling will carry over to Article II. Indeed the text of Article II and that of the Elections Clause are very close, and both provisions are concerned with empowering and obligating states making general rules to govern an election, rather than making a binary decision about ratification or a decision (prior to the 1900s) about whom within a small field to elect for the U.S. Senate. The Elections Clause speaks to the power to “prescribe the . . . manner” of congressional elections, and Article II addresses the power to “direct” the “manner” of presidential elector selection. The word “manner” is used in both, and “prescribe” and “direct” are synonyms. (Last week’s ruling, in fact, in characterizing the Elections Clause, used “direct” interchangeably with “prescribe.”) Indeed, the case for popular involvement in Article II may be even stronger than in the Elections Clause, because the grammatical subject of the empowering clause in Article II is “the State” itself, rather than the “Legislature.”
Some observers until now seemed to be unsure of whether direct democracy devices would be considered consistent with Article II in part because one of the earlier cases mentioned above, Davis v. Hildebrant, could be read to be more about a federal statute than the meaning of the word “Legislature,” and in part because three Justices (Chief Justice Rehnquist, and Justices Scalia and Thomas) in Bush v. Gore seemed to embrace a narrow understanding of the word “Legislature” in Article II. But now it appears that five Justices (including Justice Kennedy, whose decision not to join that plurality opinion in Bush v. Gore from the current vantage point seems to have been intentional) have signed on to an opinion that reads (and affirms) Davis v. Hildebrant as meaning that the word “Legislature” in the Constitution permits direct democracy where state lawmaking (rather than ratification or other narrower functions) is involved. Thus, the path for direct democracy adoption of the NPV Plan or similar reforms should be more open.
#3 Chief Justice Roberts Asks the Right Questions but Does Not Explore Them in Depth
In his dissent, Chief Justice Roberts compared the Elections Clause not to Article II, but to the pre-17th Amendment Senate election processes, in which state legislatures, rather than the People of each state, elected U.S. Senators. If “Legislature” means the people, he asked, why couldn’t the states have simply circumvented legislative election by moving to popular election without need for a constitutional amendment? As I have written before, many states did effectively move to direct election even in advance of (and as a way of bringing about) the Seventeenth Amendment. The Chief Justice mentions the “pressure” that state electorates put on their elected legislatures, in this regard, but he doesn’t explore what form that pressure took. Some states required, as a matter of state law, their legislatures to pick as Senators the candidates most favored by state voters. These requirements were sometimes backed up by “scarlet letter” designations marking, on the next state ballot, a state legislator who did not follow the wishes of the electorate as someone who failed to heed the will of the people. Given this historical practice (which was never struck down in any court), could Arizona voters have avoided the claim raised by the elected legislature by simply creating the commission and requiring the elected legislature to adopt the district lines the commission proposed? If so, the Chief Justice’s objection to Proposition 106 is pretty thin. If not, is the Chief Justice suggesting that the Senators elected from states that put extreme pressure on their elected legislatures in the late 1800s were invalidly elected? These are the questions the Chief needed to but did not address.
Chief Justice Roberts also asked good questions—but didn’t deeply explore the right answers—when it comes to the relevance of the federal statute (on which the majority chose not to rely exclusively) purporting to authorize direct democracy in districting. The Chief intimated that there would be an “impermissible delegation” problem if Congress were to authorize states prospectively to make use of an independent commission, even if Congress could itself have adopted those means. But as I have explained in an earlier column (and much more elaborately in academic writing), non-delegation arguments like these have already been rejected by the Court in other federalism cases. Perhaps the Chief wants to revisit such cases, but he certainly didn’t explain how or why. You can’t get the right answers unless you ask the right questions (which the Chief Justice started to do), but you also can’t get the right answers unless you deeply explore the right questions as well (which he didn’t).