Michael Morley on the SCOTUS AZ Redistricting Decision

Here is a guest post from Michael Morley, whose article on the Elections Clause issue was cited by Chief Justice Roberts in his AZ dissent:

Yesterday, the Supreme Court upheld the use of independent redistricting commissions to redraw congressional district lines, by a bare 5-4 majority, in Arizona State Legislature v. Arizona Independent Redistricting Commission. The Elections Clause of the U.S. Constitution grants the power to regulate federal elections specifically to the “Legislature” of each state, rather than to the state as a whole. Arizona voters had enacted an initiative amending their state constitution transferring the state legislature’s authority to determine congressional district boundaries to a bipartisan independent commission. While the Court’s endorsement of such commissions is the opinion’s most immediate impact, there are other important aspects of the ruling that bear exploring.

First, and perhaps least surprisingly, the Court expressly affirmed that legislatures may delegate their power to regulate federal elections to other entities. Slip op. at 25. Interestingly, the only authority cited for this proposition is a concession by Petitioners’ counsel at oral argument. See id. (citing Tr. of Oral Arg. 15-16). Nevertheless, this holding makes it more difficult for plaintiffs to challenge regulations, policies, or decisions regarding federal elections made by state or local officials on the grounds that the Elections Clause requires the legislature itself to make the determination (at least if the legislature has delegated authority to promulgate rules or make certain decisions). At most, perhaps state legislatures acting under the Elections Clause may be bound by the same nondelegation doctrine, such as it is, that ostensibly limits Congress in the exercise of its Article I, § 8 powers.

Second, the majority’s ruling represents a dramatic expansion of precedent because it not only allows entities other than a state’s institutional legislature to redraw congressional districts, but it permits the institutional legislature to be completely excluded from the process. Prior cases such as Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), and Smiley v. Holm, 285 U.S. 355 (1932), had adopted a broad construction of the term “legislature,” as including any entities that exercise a state’s legislative authority. Neither of those precedents, however, allowed an institutional legislature to be completely excluded from regulating any aspects of federal elections. Under the majority’s approach, a state is free to decide that its “legislature” for purposes of the Elections Clause does not include its actual institutional legislature. The majority may have done better to adopt a compromise position, in which entities such as independent commissions may participate in the congressional redistricting process, but not to the complete exclusion of the institutional legislature (for example, by allowing the institutional legislature to veto the commission’s redistricting plan by a 2/3 or 3/4 vote).

Third, the majority’s opinion contains no limiting principle. While this case concerned only redistricting commissions, the Court’s reasoning appears to apply equally to all aspects of federal election law. In other words, the majority opinion appears to permit a state—whether through state constitutional amendment, public initiative or referendum, or even traditional legislative action—to vest complete authority over the rules governing federal elections in some entity other than the institutional legislature. In short, independent redistricting commissions may be just the beginning. Under the majority’s view, it seems that power to determine a state’s rules concerning voter registration, voter identification, voter list maintenance and updating, voter challenges, poll watchers, polling place locations and hours, and the complete host of other issues relating to federal elections may be completely vested in an ostensibly nonpartisan or bipartisan entity other than the institutional legislature.

Fourth, almost in passing, the majority disavows the “independent state legislature doctrine” that the Court had endorsed, albeit in dicta, in McPherson v. Black, 146 U.S. 1, 25 (1892), and that had been adopted and followed by numerous state supreme courts throughout the nation’s history, as well as both Houses of Congress. The doctrine provides that a state constitution may not impose substantive restrictions or limits on a legislature’s authority to regulate federal elections, since the legislature derives this power directly and exclusively from the Elections Clause of the U.S. Constitution. Thus, in a clash between a state constitutional provision regulating federal elections and a state law enacted by the legislature, the state law generally has prevailed, even in situations where the outcome of an election hinged on the issue. See Michael T. Morley, Rethinking the Right to Vote Under State Constitutions, 67 Vand. L. Rev. En Banc 189, 198-204 (2014) (citing cases). The Arizona Independent Redistricting majority dismisses this doctrine, declaring: “Nothing in [the Elections] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.” Slip op. at 28. The Court did not mention, much less discuss, the state supreme court rulings on this issue it was overturning. This holding—perhaps the most significant and underappreciated side effect of the majority opinion—allows plaintiffs to continue raising state constitutional challenges to federal election laws, as Professor Josh Douglas has ably advocated. See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89 (2014).

Finally, although the Justices’ votes largely broke down along traditional partisan lines, with Justice Kennedy siding with the liberal Justices, the Court’s ruling is unlikely to systematically benefit either Democrats or Republicans in the short term. Independent commissions strip legislatures of their power to engage in partisan gerrymandering, and they exist in states with both Democrat- and Republican-controlled legislatures.

In the long run, however, the opinion might be most beneficial for Republicans. The Court’s interpretation of the Elections Clause likely would apply, in pari materia, to Article II’s Presidential Electors Clause, which permits the “Legislature” of each state to determine how presidential electors shall be chosen. California voters have a history of adopting initiatives that would never pass the Democrat-controlled legislature. The majority’s ruling keeps the door open for an initiative to allocate California’s electoral votes on a district-by-district basis (as Nebraska and Maine presently do), or based on the proportion of votes each presidential candidate receives statewide, rather than on a winner-take-all basis. This would break up California’s monolithic bloc of 54 electoral votes that are virtually guaranteed for the Democratic Presidential candidate and allow Republican candidates to realistically vie for a portion of them. One initiative to do so, the Make Our Vote Count Act, was proposed this election cycle, but failed to gain enough signatures to appear on the ballot. Should such a measure be adopted, we might see some of the liberal groups that filed amicus briefs ardently embracing direct democracy under the Article I Elections Clause take a much dimmer view of it in the Article II context.

 

 

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