The New Elections Clause

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2-2016

The New Elections Clause The New Elections Clause

Michael T. Morley

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Part of the Constitutional Law Commons, and the Election Law Commons

ESSAYS

THE NEW ELECTIONS CLAUSE

Michael T. Morley*

NTRODUCTION ............................................................................................ 79

ARIZONA INDEPENDENT REDISTRICTING COMMISSION ............................ 83

A. Breadth of the Ruling ................................................................. 83

B. Competing Theories of Constitutional Interpretation ................ 87

C. A New Political Theory ............................................................. 90

II.

COLLATERAL IMPACT ON FEDERAL ELECTION LAW ........................... 92

A. Non-Delegation Doctrine ........................................................... 93

B. Independent State Legislature Doctrine ..................................... 94

C. Reallocating Presidential Electors .............................................. 96

III.

REMAINING QUESTIONS...................................................................... 98

A. Strict Statutory Construction and the Democracy Canon .......... 99

B. Federal Regulation of Presidential Elections ........................... 100

C. Commandeering and Federal Election Law ............................. 101

D. Limits on State Authority ......................................................... 103

ONCLUSION .............................................................................................. 104

NTRODUCTION

The Elections Clause

and Presidential Electors Clause

are the

constitutional sources of states’ authority to regulate federal elections.

distribute copies of this Essay in any format, at or below cost, for educational purposes, so

long as each copy identifies the author, provides a citation to the Notre Dame Law Review

Online, and includes this provision in the copyright notice.

* Assistant Professor, Barry University School of Law. Climenko Fellow and

Lecturer on Law, Harvard Law School, 2012–14; J.D., Yale Law School, 2003; A.B.,

Princeton University, 2000. I am grateful for feedback from John Koza and Franita Tolson.

This Essay was funded with a generous research grant from Dean Leticia Diaz of the Barry

University School of Law.

1 U.S. CONST. art. I, § 4, cl. 1 (“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 . . . .”).

NOTRE DAME LAW REVIEW ONLINE [VOL. 91:2

The “Swiss army kni[ves]” of federal election law, they also have been

interpreted as creating special doctrines in a surprisingly broad range of

fields such as statutory interpretation, preemption, and separation of powers

in state government, as they relate to federal elections.

The Supreme Court’s recent ruling in Arizona State Legislature v.

Arizona Independent Redistricting Commission (AIRC)

presents a bold

new interpretation of the Elections Clause that will reverberate far beyond

the issue immediately before the Court. Although the Elections Clause

confers power specifically on the “Legislature” of each state to regulate

congressional elections, the Supreme Court held that states may enact

election laws through any of their “lawmaking processes,” including public

initiatives and referenda.

Moreover, a state may completely prohibit its

institutional legislature from regulating certain aspects of congressional

elections by conferring that authority on some other entity instead.

Applying these holdings, the Court affirmed the validity of a state

constitutional amendment in Arizona, enacted through a public initiative,

which transferred authority to draw congressional districts from the state

legislature to an independent redistricting commission.

Most commentary concerning the Court’s ruling focuses on its

immediate impact of approving the use of independent redistricting

commissions,

as seven states have adopted.

This Essay contends that

AIRC is a dramatic expansion of precedent based on sweeping reasoning

that reshapes Elections Clause doctrine in largely unrecognized ways

2 Id. art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors [to select the President] . . . .”).

3 Cook v. Gralike, 531 U.S. 510, 523 (2001); Bush v. Palm Beach Cty. Canvassing

Bd., 531 U.S. 70, 76 (2000) (per curiam).

4 Michael T. Morley, The Intratextual Independent “Legislature” and the Elections

Clause, 109 N

W. U. L. REV. 847, 848–49 (2015).

5 135 S. Ct. 2652 (2015).

6 Id. at 2677.

7 Id. at 2671 (“[T]he people [of a state] may delegate their legislative authority over

redistricting to an independent commission just as the representative body may choose to

do.”) (citing Transcript of Oral Argument at 15–16, AIRC, 135 S. Ct. 2652 (2015) (No. 13-

1314)).

8 Id. (affirming Arizona’s power to “creat[e] a commission operating independently

of the state legislature to establish congressional districts”).

9 See, e.g., Lyle Denniston, Opinion Analysis: A Cure for Partisan

Gerrymandering?, S

COTUSBLOG (June 29, 2015, 3:21 PM),

http://www.scotusblog.com/2015/06/opinion-analysis-a-cure-for-partisan-gerrymandering/;

Edward B. Foley, The Constitution Needed a Judicial Assist, O

HIO STATE UNIV.: ELECTION

L. AT MORITZ (June 29, 2015, 2:32 PM), http://moritzlaw.osu.edu/election-

law/article/?article=13151.

10 Redistricting Commissions: Congressional Plans, NAT’L CONFERENCE OF STATE

LEGISLATURES (Dec. 8, 2015), http://www.ncsl.org/research/redistricting/redistricting-

commissions-congressional-plans.aspx.

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THE NEW ELECTIONS CLAUSE

across a range of other fields. This Essay offers a critical analysis of the

“new” Elections Clause and its Article II analogue, the Presidential

Electors Clause, as they remain in the wake of this tumultuous ruling.

Part I begins by analyzing the AIRC ruling itself. Rather than

interpreting the Elections Clause’s language, the Court attempted to

implement what it perceived to be the provision’s purpose: facilitating fair

congressional elections. This Part argues that the majority opinion is best

seen as a legal process interpretation,

but may also be viewed as a failed

application of John Hart Ely’s representation-reinforcing approach.

While the majority opinion is consistent with academic and popular

opinion concerning redistricting commissions, it was inappropriate given

the concrete, specific nature of the term being interpreted (“Legislature”),

and is fundamentally at odds with the political theory underlying the

Constitution.

The majority sought to further what it believed to be the Elections

Clause’s purpose by allowing states to insulate and protect the electoral

process from politicians. The Framers, however, believed that the political

branches themselves are the most important and reliable defenders of

democracy; they deliberately and repeatedly chose to entrust most critical

aspects of the electoral process to elected officials. The majority’s

approach could have significant implications in future cases involving

clashes between the political branches and judiciary over the power to

resolve election disputes and enforce the right to vote.

Part II turns to AIRC’s impact on Elections Clause and Presidential

Electors Clause jurisprudence. Most basically, the ruling allows states to

completely and permanently exclude their institutional legislatures from

regulating congressional—and, by extension, presidential—elections,

subject to no apparent limiting principle. The ruling also largely settles the

issue of delegations under those provisions. It clarifies that, although the

Elections Clause confers power to craft rules governing congressional

elections specifically on the “Legislature” of each state, this power may be

delegated to executive or administrative entities. It leaves undisturbed the

Court’s previous holding that the Elections Clause authorizes federal

preemption of state laws concerning congressional elections, independent

of the Supremacy Clause, without triggering a presumption against

preemption.

11 See generally HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS:

BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. &

Philip P. Frickey eds., 1994) (providing the definitive account of the legal process school of

thought).

12 See generally JOHN HART ELY, DEMOCRACY AND DISTRUST (1980) (explaining

theory).

13 Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2253–54 (2013).

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Another likely consequence of the Court’s ruling is that, since the

Presidential Electors Clause will probably be construed in pari materia

with the Elections Clause, members of the public will be able to use public

initiatives to reallocate their states’ electoral votes in presidential elections

on a proportional or district-by-district basis, rather than through the

prevailing winner-take-all system. Thus, while AIRC is a congressional

redistricting case, it could dramatically reshape the landscape of

presidential politics by putting substantial numbers of electoral votes from

traditionally partisan strongholds such as California and Michigan in play.

Finally, and perhaps most significantly, the ruling summarily and

unnecessarily rejects the “independent state legislature doctrine.” The

doctrine provides that, when a legislature enacts a law regulating federal

elections under the Elections Clause or Presidential Electors Clause, it is

acting under a higher source of power “independent” of the state

constitution, and therefore is not subject to substantive state constitutional

constraints. Repudiating this doctrine, the Court declared that state laws

relating to federal elections are subject to both state and federal

constitutional restrictions, thereby facilitating challenges to provisions such

as voter ID laws.

Part III surveys the remaining questions concerning the Elections

Clause and Presidential Electors Clause that AIRC leaves open. Perhaps

the most salient issue is the extent to which these provisions implicitly

create a special canon of statutory interpretation for state laws governing

federal elections. Several courts and commentators have suggested that,

since these clauses confer authority specifically on state legislatures, rather

than states as entities, courts must be particularly deferential to the plain

meaning of laws enacted under them. Courts may not exercise the same

interpretive discretion over state laws governing federal elections as they

may possess in other contexts.

Although this “super-strong” plain

meaning approach has been criticized,

it is a fair and fundamentally

important principle that limits courts’ ability to “interpret” the law, after the

results of an election are known and a concrete dispute has arisen, to

achieve their preferred electoral outcomes.

As the Court’s ruling focused primarily on separation of powers at the

state level, it also leaves unaddressed some federalism-related issues.

Because the Presidential Electors Clause does not expressly authorize

Congress to legislate concerning presidential elections, it remains possible

that federal authority in that area is more limited than with congressional

elections. It is also unclear whether Printz v. United States’s constraints on

14 See, e.g., Bush v. Gore, 531 U.S. 98, 112–13 (2000) (Rehnquist, C.J., concurring)

(concluding that, because the Constitution delegates plenary authority over presidential

elections to state legislatures, “the text of [an] election law itself . . . takes on independent

significance”).

15 See Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009).

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THE NEW ELECTIONS CLAUSE

commandeering limit Congress’s power to direct state and local officials in

their conduct of federal (or state) elections.

Finally, the Court has held

that the Elections Clause implicitly prohibits states from enacting laws

designed to benefit or hinder certain candidates.

The Court has yet to

fully flesh out the scope of this important limit on states’ authority over

federal elections.

The Elections Clause and Presidential Electors Clause are the sources

of a wide range of constitutional doctrines concerning federal elections.

While AIRC, on its face, addresses only the meaning of “Legislature” in the

Elections Clause and the validity of redistricting commissions, the Court’s

broad reasoning sweeps much further. This Essay offers a first analysis of

the “new” Elections Clause in the wake of this ruling.

ARIZONA INDEPENDENT REDISTRICTING COMMISSION

In AIRC, the Court adopted a sweeping interpretation of the Elections

Clause, despite other available lines of reasoning that would have permitted

it to reach comparable conclusions on narrower grounds. Section A

discusses the breadth of the ruling, demonstrating that the Court adopted a

particularly far-reaching interpretation of the Elections Clause. Section B

explains that the Court’s approach is best understood as a legal process

interpretation of the clause, which was a particularly questionable approach

given the nature of that provision. Finally, Section C shows that the

political theory underlying the Court’s ruling is fundamentally at odds with

that which permeates the Constitution.

A. Breadth of the Ruling

The Elections Clause provides, “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 people of Arizona enacted an

initiative amending their state constitution to transfer authority to determine

congressional district boundaries from the institutional legislature to a

16 521 U.S. 898, 935 (1997).

17 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833–34 (1995) (“[T]he Framers

understood the Elections Clause as a grant of authority to issue procedural regulations, and

not as a source of power to dictate electoral outcomes, to favor or disfavor a class of

candidates, or to evade important constitutional restraints.”); see, e.g., Cook v. Gralike, 531

U.S. 510, 524 (2001) (holding that the Elections Clause did not authorize a state to enact a

law “plainly designed to favor candidates who are willing to support the particular form of a

term limits amendment set forth in its text and to disfavor those who either oppose term

limits entirely or would prefer a different proposal”).

18 U.S. CONST. art. I, § 4, cl. 1 (emphasis added).

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bipartisan commission.

The amendment raised two serious questions

under the Elections Clause. First, from a purely procedural perspective, the

Elections Clause permits only the “Legislature” to enact laws regulating

federal elections. The redistricting commission, however, was created by a

constitutional amendment that was directly enacted by the people of the

state through a public initiative, rather than the legislature. Second,

substantively, putting aside the manner in which the amendment was

enacted, it strips the legislature of its authority to craft congressional

districts and vests that power instead in an independent commission. The

appellant,

the Arizona state legislature, challenged the amendment solely

on substantive grounds, foregoing any procedural arguments.

The

Court’s ruling, however, swept aside objections of either type.

Even if the Court did not wish to adopt the appellant’s

and

dissent’s

position that independent redistricting commissions are

categorically unconstitutional, it could have reached any number of

moderate or compromise rulings. For example, it could have held that,

although the Elections Clause confers authority to regulate federal elections

specifically on institutional state legislatures, the legislature may delegate

that power to other entities, such as independent commissions. This

approach would have validated the procedural objection to Arizona’s

commission, since Arizona’s institutional legislature was not involved in

the creation of the state’s redistricting commission, while rejecting the

substantive one.

From a policy perspective, it might be objected that legislatures would

refuse to voluntarily relinquish their power over redistricting. Four of the

seven current congressional redistricting commissions, however, were

established by state legislatures and subsequently ratified by voters.

fifth stemmed directly from a constitutional convention.

Only two

congressional redistricting commissions were created through public

19 ARIZ. CONST. art. IV, pt. 2, § 1.

20 The case was an appeal from a three-judge panel of the U.S. District Court for the

District of Arizona directly to the U.S. Supreme Court. AIRC, 135 S. Ct. 2652, 2662

(2015); see 28 U.S.C. § 2284(a) (2012).

21 Brief for Appellant at 24, 36, AIRC, 135 S. Ct. 2652 (2015) (No. 13-1314).

22 Id.; see also Morley, supra note 4 (presenting intratextual argument against validity

of the Arizona commission).

23 AIRC, 135 S. Ct. at 2678 (Roberts, C.J., dissenting).

24 See Act of Nov. 7, 1995, 206th Leg., Second Ann. Sess., 1995 N.J. Laws 2510

(codified at N.J.

CONST. art. IV, § 3); S.J. Res. 105, 52nd Leg., First Reg. Sess., 1993 Idaho

Sess. Laws 1530 (codified at I

DAHO CONST. art. III, § 2); H.B. 2322, 16th Leg., Reg. Sess.,

1992 Hawaii Sess. Laws 1029 (codified at H

AW. CONST. art. IV, § 2); S.J. Res. 103, 48th

Leg., Reg. Sess., 1983 Wash. Sess. Laws 2202 (codified at W

ASH. CONST. art. II, § 43).

25 See MONT. CONST., art. V, § 14(2).

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THE NEW ELECTIONS CLAUSE

initiatives.

Interpreting the Elections Clause as referring exclusively to

institutional legislatures therefore would have preserved the majority of

commissions that presently exist and realistically left the door open to the

creation of others.

Alternatively, the Court could have modified its holding by declaring

that, while the term “Legislature” refers to any entity or process to which a

state constitution commits “legislative authority,”

a state is not free to

exclude its “actual” institutional legislature from that definition. In other

words, the Court could have interpreted “Legislature” to refer to the

institutional legislature, as well as any other processes or entities through

which the state constitution allows election laws or redistricting plans to be

adopted (including either public initiative or approval by a redistricting

commission). This view would have been consistent with the Court’s

Elections Clause precedents, which upheld the use of public referenda

and gubernatorial vetoes

without categorically excluding institutional

legislatures from regulating any aspect of federal elections.

Such reasoning would have led the Court to reject the procedural

objection to the Arizona commission, because state laws concerning federal

elections may be enacted through public initiative. It would have upheld

the substantive challenge, however, because the state constitutional

amendment completely excluded the institutional legislature from

participating in redistricting. The Court might have felt that this

interpretation still would have allowed the institutional legislature to

maintain too much control over the redistricting process and other aspects

of federal elections. Such concerns could have been alleviated, however,

by state constitutional provisions limiting a legislature’s ability to override

or nullify the outcome of a public initiative

or determination of a

redistricting commission.

26 See Proposition 20, CAL. SEC’Y OF STATE (Nov. 2010) (codified at CAL. CONST. art.

XXI), http://vig.cdn.sos.ca.gov/2010/general/pdf/english/text-proposed-laws.pdf#prop20;

Proposition 106, A

RIZ. SEC’Y OF STATE (Sept. 2000) (codified at ARIZ. CONST. art. IV, pt. 2,

§ 1), http://apps.azsos.gov/election/2000/Info/pubpamphlet/english/prop106.pdf.

27 See AIRC, 135 S. Ct. at 2668 n.17, 2671.

28 Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 569 (1916).

29 Smiley v. Holm, 285 U.S. 355, 365–66 (1932).

30 Indeed, state constitutional provisions authorizing initiatives already contain such

restrictions. See, e.g., A

RIZ. CONST. art. IV, pt. 1, § 1(6)(B)–(C) (prohibiting the legislature

from “repeal[ing] an initiative measure approved by a majority of the votes cast thereon,”

and requiring a three-fourths vote of the legislature to amend a measure adopted by

initiative); C

AL. CONST. art. II, § 10(c) (“[The Legislature] may amend or repeal an initiative

statute by another statute that becomes effective only when approved by the electors unless

the initiative statute permits amendment or repeal without their approval.”); cf. A

RK. CONST.

art. V, § 1 (requiring a two-thirds vote to amend or repeal any measure adopted by

initiative).

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Finally, the Court also could have adopted a broad reading of

“Legislature,” as referring to any entity or process through which a state’s

lawmaking authority is exercised, while holding that the Elections Clause

implicitly prohibits delegation of that power. Thus, while the Elections

Clause allows the people of a state to adopt a redistricting plan via public

initiative—which is one of the state’s lawmaking processes—they could

not permit an independent commission to do so. By way of comparison,

the Constitution, as originally enacted, empowered state legislatures to

appoint U.S. Senators;

it likely would have been unconstitutional for a

legislature to transfer that authority to an executive agency or independent

commission.

This interpretation would have been bolstered by the fact that, unlike

other constitutional provisions which refer to states as overall entities, the

Elections Clause specifically confers responsibility for regulating federal

elections on state legislatures in particular. Such a direct delegation to a

particular branch of state government reasonably could be construed as

implicitly prohibiting that branch from delegating that power to some other

entity. The AIRC Court summarily rejected this possibility, based solely on

a concession from appellant’s counsel.

Rather than any of these narrower, compromise possibilities, the Court

instead adopted a sweepingly broad interpretation of the Elections Clause

that went far beyond precedent. At most,

Ohio ex rel. Davis v.

Hildebrant authorized a state’s voters to enact measures concerning federal

elections through legislative channels in addition to the state legislature,

such as public initiatives or referenda.

And Smiley v. Holm clarified that,

when such laws are enacted by the institutional legislature, they remain

subject to gubernatorial veto.

Neither of those cases compels the

31 U.S. CONST. art. I, § 3, cl. 1.

32 See, e.g., State ex rel. Van Alstine v. Frear, 125 N.W. 961, 971 (Wis. 1910)

(rejecting pre–Seventeenth Amendment challenge to non-binding public referendum on U.S.

Senate candidates, because legislators retained their power and obligation to “exercise their

conscientious judgments” on the issue); State ex rel. McCue v. Blaisdell, 118 N.W. 141, 147

(N.D. 1908) (same, because “[t]he Legislature still elects the senator, and the act merely

gives the voters of each party an opportunity to express their choice of candidates”). See

generally Derek T. Muller, Legislative Delegations and the Elections Clause, F

LA. ST. U. L.

REV. (forthcoming) (manuscript at 5–8), http://papers.ssrn.com/abstract_id=2650432.

33 AIRC, 135 S. Ct. at 2671 (“[T]he people may delegate their legislative authority

over redistricting to an independent commission just as the representative body may choose

to do.”) (citing Transcript of Oral Argument at 15–16, AIRC, 135 S. Ct. 2652 (2015) (No.

13-1314)).

34 I have argued elsewhere that the Hildebrant Court actually did not reach the merits

of the petitioners’ Elections Clause claim, construing it instead as a non-justiciable

Guarantee Clause argument. Morley, supra note 4, at 861.

35 241 U.S. 565, 569 (1916).

36 285 U.S. 355, 365–66 (1932).

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THE NEW ELECTIONS CLAUSE

conclusion that the Elections Clause permits a state’s voters to completely

exclude an institutional legislature from regulating any aspects of federal

elections.

Importantly, the Court’s ruling contains no limiting principle.

Nothing in the opinion turned on the fact that the commission was

empowered to determine congressional district boundaries, as opposed to

regulating other aspects of federal elections. Since the Court repeatedly

denied that the Elections Clause’s reference to “Legislature” refers to the

institutional legislature,

it does not appear there is any core nucleus of

authority over federal elections that a state’s actual legislature must retain.

To the contrary, under the Court’s reasoning, the people of a state may

completely exclude their institutional legislature from regulating all aspects

of federal elections, delegating that authority instead to the Secretary of

State, an executive agency, or an independent commission, among other

possibilities. This is an extremely odd and unsatisfying interpretation of a

constitutional provision expressly specifying that “[t]he Times, Places and

Manner of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof.”

In the Court’s view,

this clause effectively means “The Constitution of a State may prohibit the

Legislature from prescribing the Times, Places and Manner of holding

Elections for Senators and Representatives.”

B. Competing Theories of Constitutional Interpretation

The majority opinion and principal dissent in AIRC dramatically

illustrate diametrically opposed theories of constitutional interpretation.

The dissent relies on textualism, by focusing on the meaning of the word

“Legislature” as used in the Elections Clause;

intratextualism, by

considering how other clauses in the Constitution use that term;

and

original understanding.

While the majority makes a desultory attempt at

37 Cf. AIRC, 135 S. Ct. at 2671 (“[T]he Elections Clause permits the people of

Arizona to provide for redistricting by . . . a commission operating independently of the

state legislature . . . .”).

38 See id. at 2671–75.

39 U.S. CONST. art. I, § 4, cl. 1.

40 AIRC, 135 S. Ct. at 2679 (Roberts, C.J., dissenting) (explaining that Founding Era

dictionaries demonstrate that “‘the Legislature’ referred to an institutional body of

representatives, not the people at large”).

41 Id. at 2680–83 (“The unambiguous meaning of ‘the Legislature’ in the Elections

Clause as a representative body is confirmed by other provisions of the Constitution that use

the same term in the same way.”); see also Morley, supra note 4 (setting forth a detailed

intratextual analysis of the Elections Clause). See generally Akhil Reed Amar,

Intratextualism, 112 H

ARV. L. REV. 747 (1999) (explaining intratextualism).

42 AIRC, 135 S. Ct. at 2684 (Roberts, C.J., dissenting) (“The history of the Elections

Clause further supports the conclusion that ‘the Legislature’ is a representative body.”).

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demonstrating that the term “Legislature” actually refers to something other

than a state’s institutional legislature,

most of the opinion provides a non-

interpretivist, legal process interpretation of the Elections Clause.

The leading theorists of the legal process school, Henry M. Hart, Jr.

and Albert M. Sacks, presented their theory solely as one of statutory

interpretation, but prominent commentators have gone on to apply it to

constitutional law, as well.

Hart and Sacks contend that, when construing

a legal text, “[t]he first task . . . is to determine what purpose ought to be

attributed to it.”

They explain that legal enactments “ought always to be

presumed to be the work of reasonable men pursuing reasonable purposes

reasonably.”

When a law’s actual purpose is unclear, a court may attempt

to reconstruct what the purpose of a reasonable legislator would have

been.

Thus, to apply a statutory or constitutional provision under the

legal process approach, a court must seek to implement its underlying

purpose, whether actual or constructive.

The AIRC majority believed that “[t]he dominant purpose of the

Elections Clause . . . was to empower Congress to override state election

rules, not to restrict the way States enact legislation.”

It was intended to

ensure that state officials did not attempt to manipulate the outcomes of

federal elections.

Particularly since “the initiative and the referendum . . .

were not yet in our democracy’s arsenal” when the Elections Clause was

drafted, its reference to “Legislatures” could not have been intended to

prevent states’ electorates from regulating federal elections through such

means.

The legal process school also stresses institutional competence. Each

organ of government has its own structure and processes, and therefore is

uniquely competent to handle certain kinds of issues.

Consistent with this

insight, the AIRC majority extolled the importance of independent

43 Id. at 2671 (discussing the definition of “Legislature” in Founding Era

dictionaries).

44 William N. Eskridge, Jr. & Philip P. Frickey, The Making of The Legal Process,

107 H

ARV. L. REV. 2031, 2052 (1994).

45 HART & SACKS, supra note 11, at 1125 (emphasis removed); see also id. at 1374

(advocating that courts should “[i]nterpret the words of the statute immediately in question

so as to carry out the purpose as best it can”).

46 Id. at 1125.

47 See id. at 1374, 1378.

48 AIRC, 135 S. Ct. at 2672.

49 Id.

50 Id.

51 HART & SACKS, supra note 11, at 4 (“[D]ifferent procedures and personnel of

different qualifications invariably prove to be appropriate for deciding different kinds of

questions.”); see also id. at 160.

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THE NEW ELECTIONS CLAUSE

commissions in combatting political gerrymandering by legislatures.

The

Court strained to construe the Elections Clause so as to allow states to

assign responsibility for redistricting to what the Court perceived to be the

most appropriate institution for the task. Had the majority shared the Chief

Justice’s doubts about redistricting commissions,

it might have adopted a

less aggressive interpretation of the Elections Clause.

The Court’s reasoning is vulnerable to the standard objections to legal

process interpretations. Legal process theory treats the legislative

process—and, by extension, the constitutional drafting process—as

fundamentally rational. Public choice theory convincingly demonstrates,

however, that deliberations of lawmaking bodies are chaotic, path-

dependent, and fraught with tradeoffs, negotiations, and compromises.

By attempting to further the purpose underlying a legal provision, rather

than enforcing its plain meaning, a court is implementing a rule that has not

actually survived the bicameral legislative process or constitutional

ratification process. As Professor John F. Manning notes,

[i]f the Court feels free to adjust the semantic meaning of [a legal

provision] when the rules embedded in the text seem awkward in

relation to the [provision’s] apparent goals, then legislators cannot

reliably use words to articulate the boundaries of the frequently

awkward compromises that are necessary to secure a [measure’s]

enactment.

The work of John Hart Ely—who was by no means a strict

textualist—suggests another, more targeted objection. He argued that

courts cannot interpret certain provisions of the Constitution, such as

“privileges and immunities” and “equal protection,” based solely on their

plain text, because the language is too vague.

His representation

reinforcement theory counsels courts to construe such broad phrases in a

manner that will keep open the “channels of political change” and protect

“discrete and insular minorities” from oppression.

The AIRC majority

52 AIRC, 135 S. Ct. at 2677 (explaining that Arizona’s voters sought to “restore ‘the

core principle of republican government’” by “turn[ing] to the initiative to curb the practice

of gerrymandering” (quoting Mitchell N. Berman, Managing Gerrymandering, 83 T

EX. L.

REV. 781 (2005))); see also id. at 2676 (emphasizing that independent commissions “have

succeeded to a great degree” in combatting political conflicts of interest (quoting Bruce E.

Cain, Redistricting Commissions: A Better Political Buffer?, 121 YALE L.J. 1808, 1808

(2012))).

53 Id. at 2691 (Roberts, C.J., dissenting) (discussing the “partisanship” that has

infected Arizona’s commission).

54 Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 547 (1983); see

also William N. Eskridge, Jr., The New Textualism, 37 UCLA L. R

EV. 621, 640–44 (1990).

55 John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L.

REV. 70, 111 (2006).

56 ELY, supra note 12, at 11–14.

57 Id. at 103 & n.97.

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likely would enthusiastically agree that its opinion adopts a representation-

reinforcing approach, because its whole purpose is to allow states to take

steps to prevent politicians from drawing congressional district lines on a

partisan basis, for the benefit of entrenched incumbents.

Even apart from the Chief Justice’s empirical concerns about the

impartiality and fairness of purportedly independent commissions,

the

majority opinion fails as an attempt at representation reinforcement for one

fundamental reason: the term “Legislature” is not the type of broad

provision embodying general principles that calls for some outside moral or

political theory to meaningfully implement.

It is a concrete term, used

repeatedly throughout the Constitution itself, most state constitutions

during the Founding Era, and the constitutional convention. The nature and

context of these references demonstrate that it refers to a specific entity

within each state: a body comprised of elected representatives with general,

statewide lawmaking authority that periodically convenes.

C. A New Political Theory

The most significant impact of the majority’s approach is that it

wholeheartedly embraces a political theory concerning the electoral process

that is fundamentally at odds with the one underlying the Constitution

itself. Whether viewed from a legal process or representation-reinforcing

perspective,

the majority opinion rests on the view that legislatures

cannot be trusted with redistricting authority, because they have structural

incentives to succumb to the temptation of political gerrymandering.

Indeed, the majority goes so far as to completely ignore the U.S. House of

Representatives’s interpretation of the Elections Clause in resolving an

election contest, dismissing it as a largely party-lines vote.

The Framers, however, were of a very different view. They believed

that Congress was the only entity that could be “trusted” with control over

58 See supra notes 48–49 and accompanying text.

59 See supra note 53.

60 AIRC, 135 S. Ct. 2652, 2689–90 (2015) (Roberts, C.J., dissenting).

61 Morley, supra note 4.

62 See supra Section I.B.

63 See supra note 52.

64 AIRC, 135 S. Ct. at 2674 (declaring that the House’s interpretation of the Elections

Clause in Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H.R. Misc. Doc. No.

152, 41st Cong., 2d Sess., 46–47 (1866), “is not a disposition that should attract this Court’s

reliance”). The majority did not acknowledge the numerous other authorities that agreed

with the House’s conclusion that the Elections Clause confers powers specifically on

institutional state legislatures. See Michael T. Morley, Rethinking the Right to Vote Under

State Constitutions, 67 V

AND. L. REV. EN BANC 189, 198–202 (2014) (citing cases).

2016]

THE NEW ELECTIONS CLAUSE

the electoral process.

Justice Story explains that lodging authority over

congressional elections in any entity other than Congress itself would

undermine “its independence, its purity, and even its existence.”

granting Congress power over congressional elections, the “major evil of

interference by other branches of government is entirely avoided, while a

substantial degree of responsibility is still provided by regular elections, the

interim demands of public opinion, and the desire of each House to

preserve its standing in relation to the other institutions of government.”

Even aside from Congress’s authority to make rules concerning

congressional elections under the Elections Clause,

each House of

Congress has sole authority to determine the elections and returns of its

members

and to effectively nullify the outcomes of elections by expelling

members.

Congress is likewise responsible for determining the outcome

of presidential elections. The House and Senate have power to count

electoral votes,

including the authority to reject votes they deem invalid.

In the event that a candidate for President or Vice President fails to receive

a majority of electoral votes, as determined by Congress, then the House or

Senate, respectively, determine the winner of that office.

The House also

has the power to impeach federal officers,

and the Senate is responsible

for trying all impeachments.

Allowing Congress to control and even determine the outcomes of

federal elections creates a substantial risk of direct partisan manipulation.

Yet the Constitution’s structure embodies the Framers’ repeated, deliberate

decisions to entrust Congress with such responsibility. Although the

Court’s skepticism of allowing the political branches to control the

65 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 220 (Legal Classics Library

1986) (1826); cf. W

ILLIAM RAWLE, A VIEW OF THE CONSTITUTION OF THE UNITED STATES 47

(photo. reprint 2003) (2d ed. 1829) (discussing the need of legislative bodies to be able to

defend themselves from encroachments and interference).

66 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

§ 831, at 295 (Bos., Hilliard, Gray & Co. 1833).

67 Morgan v. United States, 801 F.2d 445, 450 (D.C. Cir. 1986).

68 U.S. CONST. art. I, § 4, cl. 1.

69 Id. art. I, § 5, cl. 1; see, e.g., Morgan, 801 F.2d at 450; McIntyre v. Fallahay, 766

F.2d 1078 (7th Cir. 1985).

70 U.S. CONST. art. I, § 5, cl. 2.

71 Id. amend. XII.

72 3 U.S.C. § 15 (2012) (allowing Members of Congress to object to the counting of

particular electoral votes).

73 U.S. CONST. amend. XII.

74 Id. art. I, § 2, cl. 5.

75 Id. art. I, § 3, cl. 6.

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electoral process has a valid basis and is widely shared,

it runs contrary to

the political theory embedded in the Constitution itself.

The Court’s willingness to reinterpret even a clear and concrete

provision such as the Elections Clause in light of its skepticism about the

political branches’ ability to fairly handle election-related issues raises

questions over the extent to which the Court will defer to Congress’s

resolution of disputes that more directly impact the right to vote. The same

fairness concerns that led the Court to permit entities other than a state’s

institutional legislature to redraw congressional districts might similarly

motivate it to permit entities other than the respective Houses of Congress

to determine which congressional candidates should be seated or which

electoral votes should be counted. Thus, the theory underlying AIRC sets

the stage for greater judicial enforcement of the constitutional right to vote

and a potential clash with Congress over the scope of its constitutional

prerogatives.

II.

COLLATERAL IMPACT ON FEDERAL ELECTION LAW

Although AIRC’s most immediate consequence is to establish the

constitutionality of redistricting commissions, the Court’s ruling also

impacts Elections Clause jurisprudence in a variety of other, potentially

further-reaching ways. Section A explains that a state legislature—defined

broadly as including any process or entity that a state constitution

authorizes to exercise legislative authority—may delegate power over

federal elections to other organs of government. Section B discusses the

Court’s summary rejection of the independent state legislature doctrine.

And Section C examines AIRC’s implications for states’ rules for allocating

presidential electors among candidates. As mentioned earlier, AIRC left

undisturbed the Court’s earlier holding that federal laws enacted pursuant

to the Elections Clause which preempt state statutes governing

congressional elections are not subject to a presumption against

preemption.

76 See, e.g., ELY, supra note 12; Nicholas Stephanopoulos, Reforming Redistricting:

Why Popular Initiatives to Establish Redistricting Commissions Succeed or Fail, 23 J.L.

POL. 331, 333 (2007) (embracing independent commissions as “the only realistic way to

curb political gerrymandering”); Jeffrey C. Kubin, Note, The Case for Redistricting

Commissions, 75 TEX. L. REV. 837, 838 (1997) (“[W]hile commissions are no panacea, they

offer a viable means of restoring a degree of efficiency, fairness, and finality to a state’s

decennial gerrymander.”); cf. Cain, supra note 52, at 1842–43 (offering recommendations to

improve commissions).

77 Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247, 2253–54 (2013).

2016]

THE NEW ELECTIONS CLAUSE

A. Non-Delegation Doctrine

The AIRC Court not only adopted an expansive interpretation of

“Legislature,” but held that any process or entity that qualifies as a

legislature may delegate its power under the Elections Clause to other

organs of state government.

Interestingly, the Court did not cite any

authority or offer any analysis in support of its holding, but rather rested

this conclusion exclusively on a concession by appellant’s counsel.

Prior to this ruling, courts had periodically wrestled with delegation

issues under the Elections Clause. Recognizing that the Elections Clause is

one of the Constitution’s only provisions that “confers a power on a

particular branch of a State’s government,”

some courts had suggested

that the provision might implicitly bar legislatures from transferring that

power to other entities, or substantially restrict legislatures’ ability to make

such delegations.

The AIRC Court held that the power to regulate federal elections is

fully delegable. Because the Elections Clause confers power on both

legislatures and Congress, it is reasonable to assume that the same

limitations on delegation apply to both entities. In general, Congress may

delegate its powers so long as it cabins the agency’s discretion based on an

“intelligible principle.”

The Supreme Court has upheld every

congressional delegation of authority it has encountered over the past

78 AIRC, 135 S. Ct. 2652, 2671 (2015) (“[T]he people may delegate their legislative

authority over redistricting to an independent commission just as the representative body

may choose to do.”) (citing Transcript of Oral Argument at 15–16, AIRC, 135 S. Ct. 2652

(2015) (No. 13-1314)).

79 Id.

80 Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C.J., concurring).

81 See, e.g., Green Party of Tenn. v. Hargett, 882 F. Supp. 2d 959, 1017–18 (M.D.

Tenn. 2012) (“[G]iven the absence of statutory standards for the exercise of the State

Elections Coordinator’s discretion,” a state law authorizing the coordinator to develop

criteria for determining whether a group qualifies as a minor political party is not “a

permissible delegation of legislative authority.”), rev’d 700 F.3d 816 (6th Cir. 2012). Of

course, it still would violate the Elections Clause for an organ of state government to

attempt to regulate federal elections in the absence of a delegation from an entity or process

that qualifies as a “Legislature.” See Libertarian Party of Ohio v. Brunner, 567 F. Supp. 2d

1006, 1012 (S.D. Ohio 2008) (“Even if the Ohio General Assembly could delegate its

authority to a member of the executive branch . . . , there is no evidence that the state

legislature has specifically delegated its authority to Defendant to direct the manner in

which [federal elections are conducted].”); Grills v. Branigin, 284 F. Supp. 176, 180 (S.D.

Ind. 1968) (“[The Elections Clause] clearly does not authorize the defendants, as members

of the Election Board of Indiana, to create congressional districts. This power is granted to

the Indiana General Assembly . . . .”), aff’d Branigin v. Duddleston, 391 U.S. 364 (1968).

82 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quoting J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

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eighty years.

It has approved delegations based on exceedingly vague

criteria, allowing agencies to set standards that are “fair and equitable”

that serve “the public interest, convenience, or necessity.”

Based on these

precedents, most commentators contend that the non-delegation doctrine is

effectively dead,

and surprisingly few mourn its loss.

The Court has never directly addressed whether the Elections Clause

imposes any constraints on the power of state legislatures or Congress to

delegate their authority to regulate federal elections. Even assuming that

some limit exists, it is likely nothing more than the “intelligible principle”

standard to which other delegations of federal legislative authority are

subject.

Thus, it will be virtually impossible for a litigant to successfully

challenge even sweeping and effectively standardless delegations by

legislatures over election-related regulations to independent commissions,

executive officials, administrative agencies, or local entities.

B. Independent State Legislature Doctrine

Aside from its approval of redistricting commissions, perhaps the

most important and far-reaching aspect of AIRC was the Court’s summary

rejection of the independent state legislature doctrine. The doctrine

recognizes that, when a legislature enacts a law that applies to federal

elections, it is acting “by virtue of a direct grant of authority” from the

Elections Clause and Presidential Electors Clause.

Thus,

83 Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315 (2000); cf.

A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935); Panama

Refining Co. v. Ryan, 293 U.S. 388, 420–21 (1935).

84 Yakus v. United States, 321 U.S. 414, 423 (1944).

85 NBC v. United States, 319 U.S. 190, 216 (1943).

86 Richard D. Cudahy, The Nondelegation Doctrine: Rumors of Its Resurrection

Prove Unfounded, 16 S

T. JOHN’S J. LEGAL COMMENT. 1, 39 (2002) (“It will certainly be a

long time before a court of appeals is once again moved to bring the doctrine out from the

shadows into the sunlight.”).

87 See, e.g., Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation

to Exclusive Delegation, 104 C

OLUM. L. REV. 2097, 2165 (2004) (“[T]he nondelegation

doctrine, as a general requirement that Congress must circumscribe the discretion of

administrative agencies, should be rejected.”); Eric A. Posner & Adrian Vermeule, Interring

the Nondelegation Doctrine, 69 U.

CHI. L. REV. 1721, 1722 (2002) (“The nondelegation

position lacks any foundation in constitutional text and structure, in standard originalist

sources, or in sound economic and political theory.”); cf. Sunstein, supra note 83, at 315–16

(arguing that nondelegation canons of statutory interpretation, rather than a substantive

nondelegation doctrine, exist).

88 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quoting J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).

89 Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76 (2000) (per curiam); see

also supra note 3 and accompanying text.

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THE NEW ELECTIONS CLAUSE

Although laws governing federal elections must be enacted through

the “legislative process” set forth in the state constitution, . . . a state

constitution cannot restrict the [substantive] scope of the power and

discretion that the U.S. Constitution bestows on the state legislature to

regulate the manner in which federal elections are conducted.

As the Supreme Court stated in McPherson v. Blacker, the

Constitution’s delegations specifically to state legislatures of power to

regulate federal elections “operat[e] as a limitation upon the State in respect

of any attempt to circumscribe th[at] legislative power,” including through

“any provision in the state constitution in that regard.”

Under the independent state legislature doctrine, if a state law

concerning federal elections conflicts with a state constitution, the law

prevails. For example, in In re Plurality Elections, a Rhode Island statute

required a candidate for federal office to receive only a plurality of votes in

order to win.

The state constitution, in contrast, required candidates for

public office to receive a majority of votes to prevail.

The Rhode Island

Supreme Court held that, because state legislatures act pursuant to their

authority under the U.S. Constitution when enacting laws regulating federal

elections, the law was enforceable regardless of any contrary provision in

the state constitution.

Numerous other courts

and commentators

have

recognized and applied the doctrine.

Without so much as acknowledging any of these authorities—

including the Court’s own statement in McPherson—the AIRC majority

summarily repudiated the doctrine. It held, “Nothing in th[e] [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.”

90 Morley, supra note 64, at 199–200 (quoting Smiley v. Holm, 285 U.S. 355, 368

(1932)).

91 146 U.S. 1, 25 (1892).

92 8 A. 881, 882 (R.I. 1887).

93 Id.

94 Id. at 881–82.

95 E.g., PG Publ. Co. v. Aichele, 902 F. Supp. 2d 724, 747–48 (W.D. Pa. 2012), aff’d

on other grounds, 705 F.3d 91 (3d Cir. 2013); State ex rel. Beeson v. Marsh, 34 N.W.2d

279, 286–87 (Neb. 1948); In re Opinions of Justices, 45 N.H. 595, 601 (1864); see also

Commonwealth ex rel. Dummit v. O’Connell, 181 S.W.2d 691, 695 (Ky. Ct. App. 1944).

96 Walter Clark, The Electoral College and Presidential Suffrage, 65 U. PA. L. REV.

737, 741 (1917); Richard D. Friedman, Trying to Make Peace with Bush v. Gore, 29 F

LA.

ST. U. L. REV. 811, 835 (2001); James C. Kirby, Jr., Limitations on the Power of State

Legislatures over Presidential Elections, 27 L

AW & CONTEMP. PROBS. 495, 504 (1962);

Morley, supra note 64, at 198–204; Emory Widener, Jr., Note, The Virginia Absent Voters

System, 8 W

ASH. & LEE L. REV. 36, 37 (1951); Note, Limitations on Access to the General

Election Ballot, 37 C

OLUM. L. REV. 86, 87 (1937).

97 AIRC, 135 S. Ct. 2652, 2673 (2015).

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mentioned earlier, the Court dismissed the House of Representatives’s

endorsement and application of the independent state legislature doctrine as

a largely partisan maneuver,

and completely ignored a Senate committee

report recognizing the doctrine.

Under the majority’s ruling, a state legislature (as well as other entity

or process that qualifies as a “Legislature” under the Elections Clause) is

bound by substantive restrictions set forth in the state constitution when

enacting laws governing federal elections. Such laws, such as proof-of-

citizenship or voter identification requirements, may therefore be

challenged on state, as well as federal, constitutional grounds.

100

The Court

thus has ratified additional barriers to state efforts to protect the integrity of

federal elections.

C. Reallocating Presidential Electors

The AIRC Court’s interpretation of the Elections Clause likely applies

to the Presidential Electors Clause as well, as the two provisions are

typically read in pari materia.

101

Just as the Elections Clause empowers

the state “Legislature” to regulate the time, place, and manner of

congressional elections,

102

the Presidential Electors Clause grants the

“Legislature” power to regulate the process for choosing presidential

electors.

103

The AIRC majority interpreted the term legislature in the

Elections Clause to include public initiatives and referenda. It is likely to

interpret the Presidential Electors Clause the same way.

Commentators have long debated the constitutionality of reallocating

a state’s electoral votes for President through a public initiative or

referendum.

104

Under AIRC, voters likely may use the public initiative

98 Id. at 2674.

99 See S. REP. NO. 43-395, at 9 (1874).

100 See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 VAND. L.

REV. 89, 104–05 (2014); see also William J. Brennan, Jr., State Constitutions and the

Protection of Individual Rights, 90 H

ARV. L. REV. 489, 502 (1977); cf. Morley, supra note

64, at 190 (“The standards that the modern Supreme Court has adopted for determining the

constitutionality of election laws are consistent with over a century-and-a-half of state

constitutional precedents that long predate most federal voting rights cases.”).

101 See Oregon v. Mitchell, 400 U.S. 112, 124 n.7 (1970) (Black, J., announcing the

judgment of the Court) (“It cannot be seriously contended that Congress has less power over

the conduct of presidential elections than it has over congressional elections.”); see also

Burroughs v. United States, 290 U.S. 534, 544–45 (1934).

102 U.S. CONST. art. I, § 4, cl. 1.

103 Id. art. II, § 1, cl. 2.

104 Compare Michael McLaughlin, Note, Direct Democracy and the Electoral

College: Can a Popular Initiative Change How a State Appoints Its Electors?, 76 F

ORDHAM

L. REV. 2943, 3000 (2008) (arguing that initiatives may not be used to change state laws

relating to federal elections), and Nicholas P. Stabile, Comment, An End Run Around a

Representative Democracy? The Unconstitutionality of a Ballot Initiative to Alter the

2016]

THE NEW ELECTIONS CLAUSE

process to change the way in which states allocate their electoral votes in

presidential elections. All states except for Nebraska

105

and Maine

106

allocate their electoral votes on a winner-take-all basis, meaning that the

presidential candidate who receives a plurality of the state’s popular vote

receives all of that state’s electoral votes. For example, in the 2012

election, Barack Obama received 60.24% of the popular vote in California,

yet was awarded all 55 of that state’s electoral votes.

107

At least three main alternatives exist. States could follow the example

of Nebraska and Maine by awarding presidential electors on a district-by-

district basis to the presidential candidate who receives the most votes in

each congressional district.

108

The candidate who receives the most

statewide votes would be awarded the state’s two additional electors.

Under this system, Obama would have received 43 of California’s electoral

votes, and Romney would have received 12.

109

Alternatively, a state’s

electors could be awarded in proportion to the percentage of the statewide

popular vote received by each candidate who exceeds some minimum

threshold. Under this approach, California would have awarded 34 of its

electoral votes to Obama, and 21 to Romney.

110

Some commentators

Method of Distributing Electors, 103 NW. U. L. REV. 1495 (2009), with Vikram David

Amar, Direct Democracy and Article II: Additional Thoughts on Initiatives and Presidential

Elections, 35 H

ASTINGS CONST. L.Q. 631, 641 (2008), and David S. Wagner, Note, The

Forgotten Avenue of Reform: The Role of States in Electoral College Reform and the Use of

Ballot Initiatives to Effect that Change, 25 R

EV. LITIG. 575, 599 (2006) (defending the

constitutionality of using public initiatives to change the method for allocating a state’s

electoral votes). Cf. Richard L. Hasen, When “Legislature” May Mean More than

“Legislature”: Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35

HASTINGS CONST. L.Q. 599, 629 (2008) (“A strict textual view suggests that initiated reform

is unconstitutional; case law and policy arguments show the question is more uncertain.

Reasonable judges could reach opposite conclusions on the question.”).

105 NEB. REV. STAT. § 32-1038(1) (2015).

106 ME. STAT. tit. 21-A, § 802 (2015).

107 FED. ELECTION COMM’N, FEDERAL ELECTIONS 2012: ELECTION RESULTS FOR THE

U.S. PRESIDENT, THE U.S. SENATE, AND THE U.S. HOUSE OF REPRESENTATIVES 28 (2013),

http://www.fec.gov/pubrec/fe2012/federalelections2012.pdf.

108 Supra notes 105–06.

109 David Nir, Daily Kos Elections’ Presidential Results by Congressional District for

the 2012 and 2008 Elections, D

AILY KOS (Nov. 19, 2012, 12:30 PM),

http://www.dailykos.com/story/2012/11/19/1163009/-Daily-Kos-Elections-presidential-

results-by-congressional-district-for-the-2012-2008-elections (specifying that Obama won

41 of California’s 53 congressional districts, as well as the statewide vote, and Romney won

12 congressional districts).

110 See RHODES COOK, AMERICA VOTES 30: 2011–2012 ELECTION RETURNS BY STATE

10 (2014) (specifying that Obama won 60.2% of the statewide vote in California and

Romney won 37.1%). Approximately 2.7% of the popular vote was split among twelve

third-party and independent candidates. F

ED. ELECTION COMM’N, supra note 107, at 28.

None of them received enough votes to be allotted an elector. The “extra” electors that

NOTRE DAME LAW REVIEW ONLINE [VOL. 91:2

instead have recommended various schemes for awarding a state’s electoral

votes based on the outcome of the national popular vote.

111

In states that generally cast their electoral votes for a particular party’s

candidate, politicians from that party likely could prevent the institutional

legislature from changing the method for allocating electoral votes. Under

AIRC, activists and voters may use the initiative process to circumvent

party bosses and ensure their state’s electoral votes more closely reflect the

views of the state’s electorate as a whole. Petitions for such initiatives

were circulated in California in past election cycles, but none received

enough signatures to be placed on the ballot.

112

Particularly since

initiatives often are introduced in off-year election cycles, when voter

turnout is lower,

113

it is reasonably possible that such a measure—like the

Arizona initiative that gave rise to AIRC in the first place—might succeed.

AIRC thus opens the door to potential realignments in presidential politics.

III.

REMAINING QUESTIONS

AIRC has reshaped Elections Clause doctrine and resolved several

longstanding controversies concerning its meaning.

114

This Part discusses

some important questions that remain. Section A argues that the Elections

Clause should be read as imposing a special duty on state and federal courts

to apply the plain meaning of state laws relating to federal elections.

Section B questions whether Congress’s authority to regulate congressional

elections is truly coextensive with its power to regulate congressional

elections under the Elections Clause. Section C discusses possible

“commandeering” concerns with federal election statutes. Finally, Section

D examines implicit limits on the power the Elections Clause grants states

to regulate congressional elections.

neither Obama nor Romney won directly likely would have been split between Obama and

Romney on a pro rata basis.

111 See, e.g., Vikram David Amar, Response, The Case for Reforming Presidential

Elections by Subconstitutional Means: The Electoral College, the National Popular Vote

Compact, and Congressional Power, 100 G

EO. L.J. 237 (2011).

112 See, e.g., Memorandum from Katherine Montgomery, Initiative Program Manager,

Cal. Sec’y of State, to All County Clerks/Registrars of Voters and Proponent (Feb. 2, 2011),

elections.cdn.sos.ca.gov/ccrov/pdf/2011/february/11008km.pdf (transmitting official title

and summary for Ballot Initiative #10-0024, entitled Electoral College Reform Act); Letter

from Anthony F. Andrade, Jr., Proponent, to Edmund G. Brown, Jr., Att’y Gen., State of

Cal. (May 21, 2007), http://oag.ca.gov/system/files/initiatives/pdfs/07-0016%20(2007-05-

22_07-0016_A1NS).pdf (submitting amendments to proposed ballot initiative #07-0016,

entitled Electoral Reform California).

113 See Nicole E. Lucy, Mediation of Proposition 187: Creative Solution to an Old

Problem? Or Quiet Death for Initiatives?, 1 P

EPP. DISP. RESOL. L.J. 123, 139 n.100 (2001)

(citing sources).

114 See supra Part II.

2016]

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A. Strict Statutory Construction and the Democracy Canon

Perhaps the most significant Elections Clause doctrine the AIRC Court

did not address is its requirement that both state and federal courts take

special care to enforce the plain text of state election statutes, rather than

applying their own judicial gloss or other doctrines, such as Professor Rick

Hasen’s “Democracy Canon.”

115

As discussed throughout this Essay, the Elections Clause and

Presidential Electors Clause are grants of constitutional authority to state

legislatures—construed broadly by the AIRC Court as embracing any

lawmaking entity or process authorized by a state’s constitution—rather

than to states as a whole. The Supreme Court has recognized that this

specific delegation of authority imposes a special duty on other

governmental entities to ensure that they apply election laws as written by

the legislature, rather than with the flexibility and discretion they otherwise

might be permitted to apply.

In Bush v. Palm Beach County Canvassing Board, the Supreme Court

observed that, “[a]s a general rule, [it] defers to a state court’s

interpretation of a state statute.”

116

When a legislature enacts a law

regulating a presidential election, however, it is acting “by virtue of a direct

grant of authority made under [the Presidential Electors Clause].”

117

Laws

enacted under the Presidential Electors Clause—and, by extension, the

Elections Clause—require a special interpretive approach.

Seven Justices went on to apply such an approach in Bush v. Gore.

118

Chief Justice Rehnquist’s concurrence, in which Justices Scalia and

Thomas joined, stated that, when a legislature acts under the Presidential

Electors Clause, “the text of the election law itself . . . takes on independent

significance.”

119

Courts have a unique duty to ensure they do not “depart[]

from the statutory meaning” of such laws, even if they generally would

have such interpretive power.

120

The four-Justice dissent written by Justice Souter echoed this

sentiment, recognizing that the U.S. Supreme Court’s responsibility was to

ensure that the Florida Supreme Court had not “displaced the state

legislature’s” enactments, and that the “law as declared by the court” was

not “different from the provisions made by the legislature, to which the

115 Hasen, supra note 15.

116 531 U.S. 70, 76 (2000) (per curiam).

117 Id.

118 531 U.S. 98 (2000) (per curiam).

119 Id. at 113 (Rehnquist, C.J., concurring).

120 Id. at 115.

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National Constitution commits responsibility for determining how each

State’s Presidential electors are chosen.”

121

Applying a super-strong plain meaning construction of laws regulating

federal elections—indeed, all elections—promotes fair outcomes because it

minimizes the opportunity for partisan manipulation. Election laws are

enacted before election disputes arise, behind at least a partial “veil of

ignorance.”

122

Because the legislature often will not know which candidate

will benefit from a particular rule, there is an increased likelihood that the

rule will be fair.

123

When courts must interpret and apply the rule,

particularly after an election is over, they generally know which candidates

and political parties will benefit from different possible interpretations.

There is a substantial risk that such knowledge may color courts’ views,

leading to rulings that are at least partially outcome-driven. Indeed, some

courts have gone so far as to recognize that adopting an unexpected

interpretation of the rules governing an election after-the-fact can amount

to a due process violation.

124

Limiting courts’ discretion to interpret

election rules may ameliorate the possibility of their partisan bias

improperly influencing the outcome of election litigation.

B. Federal Regulation of Presidential Elections

Another issue the Elections Clause raises is whether Congress’s

authority over presidential elections is coextensive with its power over

congressional elections. The Elections Clause expressly permits Congress

to “make or alter” state election laws;

125

the Presidential Electors Clause

lacks analogous language. The material difference in language between the

Elections Clause and Presidential Electors Clause has not caused the

Supreme Court pause, however. Rather, the Court held that the federal

government has inherent authority to regulate presidential elections.

126

This issue might be ripe for more careful consideration, however, in light

121 Id. at 130 (Souter, J., dissenting); see also Reform Party v. Black, 885 So. 2d 303,

312 (Fla. 2004) (“[A]lthough the judiciary has the power and authority to construe statutes,

it cannot construe statutes in a manner that would infringe on the direct grant of authority to

the Legislature through the United States Constitution.”); cf. Roe v. Alabama, 68 F.3d 404,

406–07 (11th Cir. 1995) (holding that a state court’s construction of an election law contrary

to its plain meaning violated voters’ constitutional rights).

122 JOHN RAWLS, A THEORY OF JUSTICE 136 (1971).

123 Chad Flanders, Election Law Behind a Veil of Ignorance, 64 FLA. L. REV. 1369,

1378–82 (2012).

124 Roe, 68 F.3d at 406–07; Griffin v. Burns, 570 F.2d 1065, 1078–79 (1st Cir. 1978).

125 U.S. CONST. art. I, § 4, cl. 1.

126 See supra note 101; cf. Amar, supra note 111, at 260 (arguing that the Elections

Clause empowers Congress to regulate presidential elections because congressional and

presidential elections occur simultaneously, and rules concerning the latter may affect

turnout for the former).

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THE NEW ELECTIONS CLAUSE

101

of the Court’s recent attention (such as it is) to the language and meaning

of the clause, as well as the strict limits it has imposed on the scope of

Congress’s power to enforce constitutional rights under Section 5 of the

Fourteenth Amendment.

127

C. Commandeering and Federal Election Law

The Court has yet to squarely address whether Printz’s anti-

commandeering prohibitions

128

apply to laws enacted pursuant to the

Elections Clause and whatever authority Congress might possess over

presidential elections. Nevertheless, it appears that anti-commandeering

challenges to federal voting laws are unlikely to succeed.

Printz held that it is “fundamentally incompatible with our

constitutional system of dual sovereignty” for Congress to “command the

States’ officers, or those of their political subdivisions, to administer or

enforce a federal regulatory program.”

129

It invalidated interim provisions

of the Brady Handgun Violence Prevention Act,

130

enacted under the

Commerce Clause,

131

which required “state and local law enforcement

officials to conduct background checks on prospective handgun

purchasers.”

132

Over a century before Printz, the Court had held that state election

officials may be called upon to “fulfil [sic] duties which they owe to the

United States” in connection with federal elections.

133

And in Branch v.

Smith, a four-Justice plurality held that federal laws requiring state officials

to engage in tasks relating to federal elections do not amount to

unconstitutional commandeering, because they simply “regulat[e] (as the

Constitution specifically permits) the manner in which a State is to fulfill

its pre-existing constitutional obligations” under the Elections Clause.

134

That ruling drew a stinging dissent from Justices Thomas and O’Connor,

who questioned the plurality’s refusal to apply Printz to the Elections

Clause.

135

Many commentators have argued that the Elections Clause expressly

authorizes commandeering of state officials, at least for congressional

elections. Commandeering proponents point out that the types of statutes

127 City of Boerne v. Flores, 521 U.S. 507 (1997).

128 Printz v. United States, 521 U.S. 898, 935 (1997).

129 Id.

130 Pub. L. No. 103-159, § 102(a)(1), 107 Stat. 1536, 1536–39 (1993) (codified at 18

U.S.C. § 922(s)(2), (s)(6)(B)–(C)), invalidated by Printz, 521 U.S. at 935.

131 Printz, 521 U.S. at 923–24.

132 Id. at 902.

133 Ex Parte Siebold, 100 U.S. 371, 387 (1879).

134 538 U.S. 254, 280 (2003) (plurality opinion).

135 Id. at 301–02 (O’Connor, J., concurring in part and dissenting in part).

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the clause expressly authorizes Congress to enact necessarily must be

implemented by state and local election officials.

136

Consistent with this

view, courts have rejected anti-commandeering challenges to the National

Voter Registration Act (NVRA),

137

which requires state officials to make

voter registration forms available at certain public offices and proscribes

detailed requirements for their processing.

138

Paul McGreal, however,

offers a persuasive argument that the Constitution’s “text, history,

precedent, [and] structure,” as well as “prior government practice,”

demonstrates that Congress may not commandeer state and local officials

under the Elections Clause.

139

Other commentators

140

sidestep the Elections Clause issue by

contending that, even if Article I does not authorize Congress to

commandeer state officials, it may do so when enacting laws under Section

5 of the Fourteenth Amendment.

141

The Court also has yet to directly

address this theory. Such an approach might be more persuasive than an

argument under the Elections Clause itself, since the Fourteenth

136 Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997

UP. CT. REV. 199, 237–38; Dan T. Coenen & Edward J. Larson, Congressional Power over

Presidential Elections: Lessons from the Past and Reforms for the Future, 43 W

M. & MARY

L. REV. 851, 897 (2002); Kevin K. Green, Note, A Vote Properly Cast? The

Constitutionality of the National Voter Registration Act of 1993, 22 J.

LEGIS. 45, 82–83

(1996); see also Amar, supra note 111, at 259–60; Michael S. Greve, Fallacies of Fallacies,

94 B.U.

L. REV. 1359, 1372 n.84 (2014).

137 Pub. L. No. 103-31, 107 Stat. 77, 77 (1993) (codified in scattered sections of 39

U.S.C. and 52 U.S.C. (2012)).

138 Voting Rights Coal. v. Wilson, 60 F.3d 1411, 1415 (9th Cir. 1995) (“Congress may

conscript state agencies to carry out voter registration for the election of Representatives and

Senators.”); see also Ass’n of Cmty. Orgs. for Reform Now v. Miller, 129 F.3d 833, 836

(6th Cir. 1997) (affirming the NVRA’s constitutionality because the Elections Clause

empowers Congress to direct states to amend their laws governing federal elections); Ass’n

of Cmty. Orgs. for Reform Now v. Edgar, 56 F.3d 791 (7th Cir. 1995) (pre-Printz case

affirming NVRA).

139 Paul E. McGreal, Unconstitutional Politics, 76 NOTRE DAME L. REV. 519, 553–54

(2001).

140 Caminker, supra note 136, at 239–40; Pamela S. Karlan, Section 5 Squared:

Congressional Power to Extend and Amend the Voting Rights Act, 44 H

OUS. L. REV. 1, 24–

25 (2007); Brian C. Brook, Note, Federalizing the First Responders to Acts of Terrorism via

the Militia Clauses, 54 DUKE L.J. 999, 1005–06 (2005); see also William D. Araiza,

Deference to Congressional Fact-Finding in Rights-Enforcing and Rights-Limiting

Legislation, 88 N.Y.U. L. REV. 878, 940 (2013); Roderick M. Hills, Jr., The Political

Economy of Cooperative Federalism: Why State Autonomy Makes Sense and “Dual

Sovereignty” Doesn’t, 96 M

ICH. L. REV. 813, 888–89 (1998). But see Michael D. Hatcher,

Note, Printz Policy: Federalism Undermines Miranda, 88 G

EO. L.J. 177, 189–90 (1999).

141 U.S. CONST. amend. XIV, § 5.

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Amendment abrogates state sovereignty in a variety of ways

142

and, unlike

the Elections Clause, applies equally to congressional and presidential

elections. Federal election laws would be subject to closer scrutiny,

however, because Congress is not permitted to legislate under Section 5

unless the statute is both congruent and proportional to a constitutional

violation.

143

D. Limits on State Authority

A final Elections Clause issue that also remains for future resolution is

the limit of states’ authority to enact laws concerning federal elections.

States have no inherent power to regulate federal elections; their only

power to do so comes from the Elections Clause and Presidential Elections

Clause.

144

The Court has explained that the Elections Clause grants states

broad power to enact a “complete code for congressional elections,”

concerning not only “times and places,” but also “notices, registration,

supervision of voting, protection of voters, prevention of fraud and corrupt

practices, counting of votes, duties of inspectors and canvassers, and

making and publication of election returns.”

145

It allows states “to enact

the numerous requirements as to procedure and safeguards which

experience shows are necessary in order to enforce the fundamental right

involved.”

146

This broad delegation of authority is subject to implied limits not set

forth in the Constitution’s text. The Court has held that the Elections

Clause is not “a source of power to dictate electoral outcomes, to favor or

disfavor a class of candidates, or to evade important constitutional

restraints.”

147

States therefore lack power to enact laws governing

congressional elections that fall into any of those categories. The Court has

applied this principle to invalidate state laws that attempted, directly or

indirectly, to impose term limits for Congress. In U.S. Term Limits, Inc. v.

Thornton, it struck down a statute prohibiting a candidate from appearing

on the ballot if he or she already had served a specified number of terms in

142 See, e.g., Tennessee v. Lane, 541 U.S. 509, 518 (2004) (recognizing that Congress

may abrogate states’ sovereign immunity when legislating under Section 5, but not

Article I).

143 City of Boerne v. Flores, 521 U.S. 507 (1997).

144 Cook v. Gralike, 531 U.S. 510, 523 (2001); U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779, 804–05 (1995); see also Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S.

70, 76 (2000) (per curiam).

145 Smiley v. Holm, 258 U.S. 355, 366 (1932).

146 Id.

147 U.S. Term Limits, 514 U.S. at 833–34.

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the U.S. House or U.S. Senate, though the person could still run as a write-

in candidate.

148

Likewise, in Cook v. Gralike, it held unconstitutional a law that

required negative messages to be printed on the ballot next to the names of

candidates who refused to support a particular constitutional amendment

imposing term limits for Congress.

149

The Court explained that the

provision “is plainly designed to favor candidates who are willing to

support the particular form of a term limits amendment set forth in its text

and to disfavor those who either oppose term limits entirely or would prefer

a different proposal.”

150

It added, “‘[B]y directing the citizen’s attention to

the single consideration’ of the candidates’ fidelity to term limits, the labels

imply that the issue ‘is an important—perhaps paramount—consideration

in the citizen’s choice . . . .’”

151

The Court concluded that such an attempt

to “dictate electoral outcomes” is “not authorized by the Elections

Clause.”

152

The Court has never enforced the Elections Clause’s implicit limits on

states’ authority outside of the term limits context. Its holding that states

lack power to “dictate electoral outcomes” or “favor or disfavor a class of

candidates”

153

is potentially far-reaching, however. Many facially neutral

election laws may systematically benefit or hinder candidates from a

particular party. It is unclear whether the Elections Clause’s restriction on

state power hinges on the intent of the legislature or the effects of a statute,

and how closely the Court will scrutinize a law’s effects to determine

whether it impermissibly affects an election’s outcomes. Excluding

candidates from the ballot, or printing derogatory warnings next to their

names on the ballot, are direct and substantial handicaps specific to

particular candidates. It remains to be seen whether future Courts will

enforce the Elections Clause’s implied restrictions broadly to prohibit other

measures that might affect the outcome of an election, such as voter

identification laws, absentee voting restrictions, or reductions in early

voting periods.

ONCLUSION

The Elections Clause sits at a critical intersection of federalism,

separation of powers, and constitutional rights. It confers power on a

148 Id. at 835 (holding that “a state-imposed ballot access restriction is [not]

constitutional when it is undertaken for the twin goals of disadvantaging a particular class of

candidates and evading the dictates of the Qualifications Clauses”).

149 Cook, 531 U.S. at 514–15.

150 Id. at 524.

151 Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).

152 Id. at 526 (quoting U.S. Term Limits, 514 U.S. at 833–34).

153 U.S. Term Limits, 514 U.S. at 833–34.

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specific branch of state government, expressly authorizes federal

preemption of state laws (if not federal commandeering of state

officials

154

), and contemplates regulation of the fundamental constitutional

right to vote. While AIRC has largely settled questions concerning

delegation of Elections Clause authority, the independent state legislature

doctrine, and the permissibility of reallocating a state’s presidential electors

through popular initiative (assuming the Presidential Electors Clause is

read in pari materia), other important issues remain. Perhaps most

significantly, whether AIRC is viewed as a legal process or representation-

reinforcing ruling, the majority’s approach raises substantial questions

about how far the Court will go in allowing the judiciary to preserve the

fairness of federal elections and enforce the right to vote despite express

textual grants of constitutional authority over the electoral system to

Congress. The Elections Clause thus serves not only as the constitutional

basis for a range of election-related doctrines, but perhaps as a harbinger

for the reinterpretation of other related provisions, as well.

154 See supra Section III.C.