“The New Elections Clause”

Michael Morley has posted this draft on SSRN. Here is the abstract:

The Supreme Court’s recent ruling in Arizona State Legislature v. Arizona Independent Redistricting Commission (“AIRC”) lays to rest several pressing disputes concerning the Elections Clause of the U.S. Constitution, but other important controversies remain. This short essay offers a critical examination of the “new” Elections Clause, as it remains in the wake of this momentous ruling. The essay contends that the Court’s ruling is best viewed as either a legal process or representation-reinforcing interpretation of the Clause. From either perspective, the Court’s methodology can have important consequences for how it interprets the Constitution’s other election-related provisions. This essay then explores several issues, apart from the validity of independent redistricting commissions, that AIRC resolves, including the permissibility of delegations under the Elections Clause, the Court’s repudiation of the independent state legislature doctrine, and the likely permissibility of changing the process through which a state awards its electoral votes through a public initiative. The essay concludes by identifying major remaining controversies under the Clause, most notably whether it imposes a constitutionally mandated “plain meaning” canon of construction for state election laws.

Looking forward to reading this!


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