‘Notorious RBG’ affirms that ‘voters should choose their representatives, not the other way around’


gavelI freely admit that I got it wrong, Forecasting the Court’s opinion in the Arizona redistricting case, but then virtually all Supreme Court observers believed that this case was going to be decided in favor of the Arizona legislature after oral argument. (I did say “This is my best forecast of the Court’s opinion in this case. I reserve the right to be wrong.”)

I was already prepared for a legislative and legal fight over the redistricting special session that Governor Il Duce was probably preparing to announce as early as today, had the Supreme Court ruled in favor of the Arizona legislature.

How would you like to have been a fly on the wall to witness the stunned reaction of the GOP “brain trust” (sic) this morning waiting for the Court’s decision to be announced in their favor, only to learn that the Arizona Independent Redistricting Commission had won, and it was “Notorious RBG” writing the majority opinion? That would have been freakin’ awesome! Priceless.

Tea-Publicans were so confident of their win that legislative leaders had already hired consultants to work on redrawing the congressional map. Question: Did GOP legislative leaders use any taxpayer money to pay for these consultants? Inquiring minds want to know. I sense a FOIA request coming!

The first line of the case syllabus begins with an obvious truth: “Under Arizona’s Constitution, the electorate shares lawmaking authority on equal footing with the Arizona Legislature.” This is something that our elected Tea-Publican legislators reject. They view themselves as a law unto themselves, never to be questioned or challenged by the electorate they serve.

To the majority opinion in Arizona Legislature v. Arizona Independent Redistricting Commission (.pdf). “Notorious RBG” writes:

This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering — the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power.

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In 2000, Arizona voters adopted an initiative, Proposition 106, aimed at “ending the practice of gerrymandering and improving voter and candidate participation in elections.”

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The Arizona Legislature challenged the map the Commission adopted in January 2012 for congressional districts. Recognizing that the voters could control redistricting for state legislators, Brief for Appellant 42, 47; Tr. of Oral Arg. 3–4, the Arizona Legislature sued the AIRC in federal court seeking a declaration that the Commission and its map for congressional districts violated the “Elections Clause” of the U. S. Constitution. That Clause, critical to the resolution of this case, 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 . . . .” Art. I, §4, cl. 1.

The Arizona Legislature’s complaint alleged that “[t]he word ‘Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people,” App. 21, ¶37; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves.

A three-judge District Court held, unanimously, that the Arizona Legislature had standing to sue; dividing two to one, the Court rejected the Legislature’s complaint on the merits. We postponed jurisdiction and instructed the parties to address two questions: (1) Does the Arizona Legislature have standing to bring this suit? (2) Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts? 573 U. S. ___ (2014).

We now affirm the District Court’s judgment. We hold, first, that the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of Proposition 106. Next, we hold that lawmaking power in Arizona includes the initiative process, and that both §2a(c) and the Elections Clause permit use of the AIRC in congressional districting in the same way the Commission is used in districting for Arizona’s own Legislature.

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Direct lawmaking by the people was “virtually unknown when the Constitution of 1787 was drafted.” Donovan & Bowler, An Overview of Direct Democracy in the American States, in Citizens as Legislators 1 (S. Bowler, T. Donovan, & C. Tolbert eds. 1998) . . . [I]t was not until the turn of the 20th century, as part of the Progressive agenda of the era, that direct lawmaking by the electorate gained a foothold, largely in Western States. See generally Persily, The Peculiar Geography of Direct Democracy: Why the Initiative, Referendum and Recall Developed in the American West, 2 Mich L. & Pol’y Rev. 11 (1997).

The two main “agencies of direct legislation” are the initiative and the referendum. Munro, Introductory, in IRR 8. The initiative operates entirely outside the States’ representative assemblies; it allows “voters [to] petition to propose statutes or constitutional amendments to be adopted or rejected by the voters at the polls.” D. Magleby, Direct Legislation 1 (1984). While the initiative allows the electorate to adopt positive legislation, the referendum serves as a negative check. It allows “voters [to] petition to refer a legislative action to the voters [for approval or disapproval] at the polls.” Ibid. “The initiative [thus] corrects sins of omission” by representative bodies, while the “referendum corrects sins of commission.” Johnson, Direct Legislation as an Ally of Representative Government, in IRR 139, 142.

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By 1920, the people in 19 States had reserved for themselves the power to initiate ordinary lawmaking, and, in 13 States, the power to initiate amendments to the State’s Constitution. Id., at 62, and n. 132, 94, and n. 151. Those numbers increased to 21 and 18, respectively, by the close of the 20th century. Ibid.

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For the delegates to Arizona’s constitutional convention,direct lawmaking was a “principal issu[e].” J. Leshy, The Arizona State Constitution 8–9 (2d ed. 2013) (hereinafter Leshy). By a margin of more than three to one, the people of Arizona ratified the State’s Constitution, which included, among lawmaking means, initiative and referendum provisions. Id., at 14–16, 22. In the runup to Arizona’s admission to the Union in 1912, those provisions generated no controversy. Id., at 22.

In particular, the Arizona Constitution “establishes the electorate [of Arizona] as a coordinate source of legislation” on equal footing with the representative legislative body . . . The initiative, housed under the article of the Arizona Constitution concerning the “Legislative Department” and the section defining the State’s “legislative authority,” reserves for the people “the power to propose laws and amendments to the constitution.” Art. IV, pt. 1, §1. The Arizona Constitution further states that “[a]ny law which may be enacted by the Legislature under this Constitution may be enacted by the people under the Initiative.” Art. XXII, §14. Accordingly, “[g]eneral references to the power of the ‘legislature’ ” in the Arizona Constitution “include the people’s right (specified in Article IV, part 1) to bypass their elected representatives and make laws directly through the initiative.” Leshy xxii.

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Redistricting plans adopted by the Arizona Legislature sparked controversy in every redistricting cycle since the 1970’s, and several of those plans were rejected by a federal court or refused preclearance by the Department of Justice under the Voting Rights Act of 1965. See id., at 1830–1832.

Aimed at “ending the practice of gerrymandering and improving voter and candidate participation in elections,” App. 50, Proposition 106 amended the Arizona Constitution to remove congressional redistricting authority from the state legislature, lodging that authority, instead, in a new entity, the AIRC. Ariz. Const., Art. IV, pt. 2, §1, ¶¶3–23.

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Several other States, as a means to curtail partisan gerrymandering, have also provided for the participation of commissions in redistricting. Some States, in common with Arizona, have given nonpartisan or bipartisan commissions binding authority over redistricting. The California Redistricting Commission, established by popular initiative, develops redistricting plans which become effective if approved by public referendum. Still other States have given commissions an auxiliary role, advising the legislatures on redistricting,8 or serving as a “backup” in the event the State’s representative body fails to complete redistricting. Studies report that nonpartisan and bipartisan commissions generally draw their maps in a timely fashion and create districts both more competitive and more likely to survive legal challenge. See Miller & Grofman, Redistricting Commissions in the Western United States, 3 U. C. Irvine L. Rev. 637, 661, 663–664,666 (2013).

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We turn first to the threshold question: Does the Arizona Legislature have standing to bring this suit?

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The Arizona Legislature maintains that the Elections Clause vests in it “primary responsibility” for redistricting. Brief for Appellant 51, 53. To exercise that responsibility, the Legislature urges, it must have at least the opportunity to engage (or decline to engage) in redistricting before the State may involve other actors in the redistricting process. See id., at 51–53.

Proposition 106, which gives the AIRC binding authority over redistricting, regardless of the Legislature’s action or inaction, strips the Legislature of its alleged prerogative to initiate redistricting. That asserted deprivation would be remedied by a court order enjoining the enforcement of Proposition 106. Although we conclude that the Arizona Legislature does not have the exclusive, constitutionally guarded role it asserts, see infra, at 24–35, one must not “confus[e] weakness on the merits with absence of Article III standing.” Davis v. United States, 564 U. S. ___, ___, n. 10 (2011) (slip op., at 19, n. 10); see Warth v. Seldin, 422 U. S. 490, 500 (1975) (standing “often turns on the nature and source of the claim asserted,” but it “in no way depends on the merits” of the claim).

The AIRC argues that the Legislature’s alleged injury is insufficiently concrete to meet the standing requirement absent some “specific legislative act that would have taken effect but for Proposition 106.” Brief for Appellees 20. The United States, as amicus curiae, urges that even more is needed: the Legislature’s injury will remain speculative, the United States contends, unless and until the Arizona Secretary of State refuses to implement a competing redistricting plan passed by the Legislature. Brief for United States 14–17. In our view, the Arizona Legislature’s suit is not premature, nor is its alleged injury too “conjectural” or “hypothetical” to establish standing. Defenders of Wildlife, 504 U. S., at 560 (internal quotation marks omitted).

Two prescriptions of Arizona’s Constitution would render the Legislature’s passage of a competing plan and submission of that plan to the Secretary of State unavailing. Indeed, those actions would directly and immediately conflict with the regime Arizona’s Constitution establishes . . . First, the Arizona Constitution instructs that the Legislature “shall not have the power to adopt any measure that supersedes [an initiative], in whole or in part, . . . unless the superseding measure furthers the purposes” of the initiative. Art. IV, pt. 1, §1(14). Any redistricting map passed by the Legislature in an effort to supersede the AIRC’s map surely would not “furthe[r] the purposes” of Proposition 106. Second, once the AIRC certifies its redistricting plan to the Secretary of State, Arizona’s Constitution requires the Secretary to implement that plan and no other. See Art. IV, pt. 2, §1(17); Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Comm’n, 211 Ariz. 337, 351, 121 P. 3d 843, 857 (App. 2005) (per curiam) (“Once the Commission certifies [its] maps, the secretary of state must use them in conducting the next election.”). To establish standing, the Legislature need not violate the Arizona Constitution and show that the Secretary of State would similarly disregard the State’s fundamental instrument of government.

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Coleman, as we later explained in Raines, stood “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U. S., at 823. Our conclusion that the Arizona Legislature has standing fits that bill. Proposition 106, together with the Arizona Constitution’s ban on efforts to undermine the purposes of an initiative, see supra, at 11, would “completely nullif[y]” any vote by the Legislature, now or “in the future,” purporting to adopt a redistricting plan. Raines, 521 U. S., at 823–824.

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Accordingly, we proceed to the merits.

On the merits, we instructed the parties to address this question: Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts? The Elections Clause is set out at the start of this opinion, supra, at 2. Section 2a(c) provides:

“Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: [setting out five federally prescribed redistricting procedures].”

Before focusing directly on the statute and constitutional prescriptions in point, we summarize this Court’s precedent relating to appropriate state decisionmakers for redistricting purposes. Three decisions compose the relevant case law: Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916); Hawke v. Smith (No. 1), 253 U. S. 221 (1920); and Smiley v. Holm, 285 U. S. 355 (1932).

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THE CHIEF JUSTICE, in dissent, features, indeed trumpets repeatedly, the pre-Seventeenth Amendment regime in which Senators were “chosen [in each State] by the Legislature thereof.” Art. I, §3; see post, at 1, 8–9, 19. If we are right, he asks, why did popular election proponents resort to the amending process instead of simply interpreting “the Legislature” to mean “the people”? Post, at 1. Smiley, as just indicated, answers that question. Article I, §3, gave state legislatures “a function different from that of lawgiver,” 285 U. S., at 365; it made each of them “an electoral body” charged to perform that function to the exclusion of other participants, ibid. So too, of the ratifying function.

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Constantly resisted by THE CHIEF JUSTICE, but well understood in opinions that speak for the Court: “[T]he meaning of the word ‘legislature,’ used several times in the Federal Constitution, differs according to the connection in which it is employed, depend[ent] upon the character of the function which that body in each instance is called upon to exercise.” Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932) (citing Smiley, 285 U. S. 355). Thus “the Legislature” comprises the referendum and the Governor’s veto in the context of regulating congressional elections. Hildebrant, see supra, at 15–16; Smiley, see supra, at 17–18. In the context of ratifying constitutional amendments, in contrast, “the Legislature”
has a different identity, one that excludes the referendum and the Governor’s veto. Hawke, see supra, at 16.

In sum, our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto. The exercise of the initiative, we acknowledge, was not at issue in our prior decisions. But as developed below, we see no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking.

We take up next the statute the Court asked the parties to address, 2 U. S. C. §2a(c), a measure modeled on the Reapportionment Act Congress passed in 1911, Act of Aug. 8 (1911 Act), ch. 5, §4, 37 Stat. 14. Section 2a(c), we hold, permits use of a commission to adopt Arizona’s congressional districts. See supra, at 15.

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In drafting the 1911 Act, Congress focused on the fact that several States had supplemented the representative legislature mode of lawmaking with a direct lawmaking role for the people, through the processes of initiative (positive legislation by the electorate) and referendum (approval or disapproval of legislation by the electorate). 47 Cong. Rec. 3508 (statement of Sen. Burton); see supra, at 3–5. To accommodate that development, the 1911 Act eliminated the statutory reference to redistricting by the state “legislature” and instead directed that, if a State’s apportionment of Representatives increased, the State should use the Act’s default procedures for redistricting “until such State shall be redistricted in the manner provided by the laws thereof.” Ch. 5, §4, 37 Stat. 14 (emphasis added).

Some Members of Congress questioned whether the language change was needed. In their view, existing apportionment legislation (referring to redistricting by a State’s “legislature”) “suffic[ed] to allow, whatever the law of the State may be, the people of that State to control [redistricting].” 47 Cong. Rec. 3507 (statement of Sen. Shively); cf. Shiel v. Thayer, Bartlett Contested Election Cases, H. R. Misc. Doc. No. 57, 38th Cong., 2d Sess., 351 (1861) (view of House Committee of Elections Member Dawes that Art. I, §4’s reference to “the Legislature” meant simply the “constituted authorities, through whom [the State] choose[s] to speak,” prime among them, the State’s Constitution, “which rises above . . . all legislative action”). Others anticipated that retaining the reference to “the legislature” would “condem[n] . . . any [redistricting] legislation by referendum or by initiative.” 47 Cong. Rec. 3436 (statement of Sen. Burton). In any event, proponents of the change maintained, “[i]n view of the very serious evils arising from gerrymanders,” Congress should not “take any chances in [the] matter.” Id., at 3508 (same). “[D]ue respect to the rights, to the established methods, and to the laws of the respective States,” they urged, required Congress “to allow them to establish congressional districts in whatever way they may have provided by their constitution and by their statutes.” Id., at 3436; see id., at 3508 (statement of Sen. Works).

As this Court observed in Hildebrant, “the legislative history of th[e] [1911 Act] leaves no room for doubt [about why] the prior words were stricken out and the new words inserted.” 241 U. S., at 568. The change was made to safeguard to “each State full authority to employ in the creation of congressional districts its own laws and regulations.” 47 Cong. Rec. 3437 (statement of Sen. Burton). The 1911 Act, in short, left the question of redistricting “to the laws and methods of the States. If they include initiative, it is included.” Id., at 3508.

While the 1911 Act applied only to reapportionment following the 1910 census, see Wood v. Broom, 287 U. S. 1, 6–7 (1932), Congress used virtually identical language when it enacted §2a(c) in 1941. See Act of Nov. 15, 1941, ch. 470, 55 Stat. 761–762. Section 2a(c) sets forth congressional-redistricting procedures operative only if the State, “after any apportionment,” had not redistricted “in the manner provided by the law thereof.” The 1941 provision, like the 1911 Act, thus accorded full respect to the redistricting procedures adopted by the States. So long as a State has “redistricted in the manner provided by the law thereof ” — as Arizona did by utilizing the independent commission procedure called for by its Constitution — the resulting redistricting plan becomes the presumptively governing map.

The Arizona Legislature characterizes §2a(c) as an “obscure provision, narrowed by subsequent developments to the brink of irrelevance.” Brief for Appellant 56. True, four of the five default redistricting procedures—operative only when a State is not “redistricted in the manner provided by [state] law”—had “become (because of postenactment decisions of this Court) in virtually all situations plainly unconstitutional.” . . . Constitutional infirmity in §2a(c)(1)–(4)’s default procedures, however, does not bear on the question whether a State has been “redistricted in the manner provided by [state] law.” As just observed, Congress expressly directed that when a State has been “redistricted in the manner provided by [state] law”—whether by the legislature, court decree (see id., at 274), or a commission established by the people’s exercise of the initiative—the resulting districts are the ones that presumptively will be used to elect Representatives.

There can be no dispute that Congress itself may draw a State’s congressional-district boundaries. See Vieth, 541 U. S., at 275 (plurality opinion) (stating that the Elections Clause “permit[s] Congress to ‘make or alter’ ” the “districts for federal elections”). The Arizona Legislature urges that the first part of the Elections Clause, vesting power to regulate congressional elections in State “Legislature[s],” precludes Congress from allowing a State to redistrict without the involvement of its representative body, even if Congress independently could enact the same redistricting plan under its plenary authority to “make or alter” the State’s plan. See Brief for Appellant 56–57; Reply Brief 17. In other words, the Arizona Legislature regards §2a(c) as a futile exercise. The Congresses that passed §2a(c) and its forerunner, the 1911 Act, did not share that wooden interpretation of the Clause, nor do we. Any uncertainty about the import of §2a(c), however, is resolved by our holding that the Elections Clause permits regulation of congressional elections by initiative, see infra, at 24–35, leaving no arguable conflict between §2a(c) and the first part of the Clause.

In accord with the District Court, see supra, at 9, we hold that the Elections Clause permits the people of Arizona to provide for redistricting by independent commission. To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.

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As to the “power that makes laws” in Arizona, initiatives adopted by the voters legislate for the State just as measures passed by the representative body do. See Ariz. Const., Art. IV, pt. 1, §1 (“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”) . . . As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do. See Tr. of Oral Arg. 15–16 (answering the Court’s question, may the Arizona Legislature itself establish a commission to attend to redistricting, counsel for appellant responded yes, state legislatures may delegate their authority to a commission, subject to their prerogative to reclaim the authority for themselves).

The dominant purpose of the Elections Clause, the historical record bears out, was to empower Congress to override state election rules, not to restrict the way States enact legislation. As this Court explained in Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1 (2013), the Clause “was the Framers’ insurance against the possibility that a State would refuse to provide for the election of representatives to the Federal Congress.” Id., at ___ (slip op., at 5) (citing The Federalist No. 59, pp. 362–363 (C. Rossiter ed. 1961) (A. Hamilton)).

The Clause was also intended to act as a safeguard against manipulation of electoral rules by politicians and factions in the States to entrench themselves or place their interests over those of the electorate. As Madison urged, without the Elections Clause, “[w]henever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 2 Records of the Federal Convention 241 (M. Farrand rev. 1966) . . . The problem Madison identified has hardly lessened over time. Conflict of interest is inherent when “legislators dra[w] district lines that they ultimately have to run in.” Cain, 121 Yale L. J., at 1817.

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The Arizona Legislature maintains that, by specifying “the Legislature thereof,” the Elections Clause renders the State’s representative body the sole “component of state government authorized to prescribe . . . regulations . . . for congressional redistricting.” Brief for Appellant 30. THE CHIEF JUSTICE, in dissent, agrees. But it is characteristic of our federal system that States retain autonomy to establish their own governmental processes. See Alden v. Maine, 527 U. S. 706, 752 (1999) (“A State is entitled to order the processes of its own governance.”); The Federalist No. 43, at 272 (J. Madison) (“Whenever the States may choose to substitute other republican forms, they have a right to do so.”). “Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991). Arizona engaged in definition of that kind when its people placed both the initiative power and the AIRC’s redistricting authority in the portion of the Arizona Constitution delineating the State’s legislative authority. See Ariz. Const., Art. IV; supra, at 5–6.

This Court has “long recognized the role of the States as laboratories for devising solutions to difficult legal problems.” . . . Deference to state lawmaking “allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’ ” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9) (quoting Gregory, 501 U. S., at 458).

We resist reading the Elections Clause to single out federal elections as the one area in which States may not use citizen initiatives as an alternative legislative process. Nothing in that 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. [Citations omitted.]

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We add, furthermore, that the Arizona Legislature does not question, nor could it, employment of the initiative to control state and local elections. In considering whether Article I, §4, really says “No” to similar control of federal elections, we have looked to, and borrow from, Alexander Hamilton’s counsel: “[I]t would have been hardly advisable . . . to establish, as a fundamental point, what would deprive several States of the convenience of having the elections for their own governments and for the national government” held at the same times and places, and in the same manner. The Federalist No. 61, at 374. The Elections Clause is not sensibly read to subject States to that deprivation.

The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature. But the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. As Madison put it: “The genius of republican liberty seems to demand . . . not only that all power should be derived from the people, but that those intrusted with it should be kept in dependence on the people.” Id., No. 37, at 223.

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Our Declaration of Independence, ¶2, drew from [John] Locke in stating: “Governments are instituted among Men, deriving their just powers from the consent of the governed.” And our fundamental instrument of government derives its authority from “We the People.” U. S. Const., Preamble. As this Court stated, quoting Hamilton: “[T]he true principle of a republic is, that the people should choose whom they please to govern them.” Powell v. McCormack, 395 U. S. 486, 540–541 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). In this light, it would be perverse to interpret the term “Legislature” in the Elections Clause so as to exclude lawmaking by the people, particularly where such lawmaking is intended to check legislators’ ability to choose the district lines they run in, thereby advancing the prospect that Members of Congress will in fact be “chosen . . . by the People of the several States,” Art. I, §2. See Cain, 121 Yale L. J., at 1817.

THE CHIEF JUSTICE, in dissent, suggests that independent commissions established by initiative are a high-minded experiment that has failed. Post, at 26–27. For this assessment, THE CHIEF JUSTICE cites a three-judge Federal District Court opinion, Harris v. Arizona Independent Redistricting Comm’n, 993 F. Supp. 2d 1042 (Ariz. 2014). That opinion, he asserts, “detail[s] the partisanship that has affected the Commission.” Post, at 26. No careful reader could so conclude.

The report of the decision in Harris comprises a per curiam opinion, an opinion concurring in the judgment by Judge Silver, and a dissenting opinion by Judge Wake. The per curiam opinion found “in favor of the Commission.” 993 F. Supp. 2d, at 1080. Deviations from the one-person, one-vote principle, the per curiam opinion explained at length, were “small” and, in the main, could not be attributed to partisanship. Ibid. While partisanship “may have played some role,” the per curiam opinion stated, deviations were “predominantly a result of the Commission’s good-faith efforts to achieve preclearance under the Voting Rights Act.” Id., at 1060. Judge Silver, although she joined the per curiam opinion, made clear at the very outset of that opinion her finding that “partisan ship did not play a role.” Id., at 1046, n. 1. In her concurring opinion, she repeated her finding that the evidence did not show partisanship at work, id., at 1087; instead,
she found, the evidence “[was] overwhelming [that] the final map was a product of the commissioners’s consideration of appropriate redistricting criteria.” Id., at 1088. To describe Harris as a decision criticizing the Commission for pervasive partisanship, post, at 26, THE CHIEF JUSTICE could rely only upon the dissenting opinion, which expressed views the majority roundly rejected.

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Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, by which the majority in the legislature draws district lines to their party’s advantage. It would also cast doubt on numerous other election laws adopted by the initiative method of legislating.

The people, in several States, functioning as the law making body for the purpose at hand, have used the initiative to install a host of regulations governing the “Times, Places and Manner” of holding federal elections. Art. I, §4 . . . The Arizona Legislature’s theory—that the lead role in regulating federal elections cannot be wrested from “the Legislature,” and vested in commissions initiated by the people—would endanger all of them.

The list of endangered state elections laws, were we to sustain the position of the Arizona Legislature, would not stop with popular initiatives. Almost all state constitutions were adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.” Core aspects of the electoral process regulated by state constitutions include voting by “ballot” or “secret ballot,” voter registration, absentee voting, vote counting, and victory thresholds. Again, the States’ legislatures had no hand in making these laws and may not alter or amend them.

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Invoking the Elections Clause, the Arizona Legislature instituted this lawsuit to disempower the State’s voters from serving as the legislative power for redistricting purposes. But the Clause surely was not adopted to diminish a State’s authority to determine its own lawmaking processes. Article I, §4, stems from a different view.

Both parts of the Elections Clause are in line with the fundamental premise that all political power flows from the people. McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819). So comprehended, the Clause doubly empowers the people. They may control the State’s lawmaking processes in the first instance, as Arizona voters have done, and they may seek Congress’ correction of regulations prescribed by state legislatures.

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elections Clause does not hinder that endeavor.

For the reasons stated, the judgment of the United States District Court for the District of Arizona is


NOTE: Harris v. Arizona Independent Redistricting Commission has been distributed for the Conference of June 29. The U.S. Supreme Court will issue its “clean up” Orders List for this term tomorrow morning. The discussion of Harris in Arizona Legislature above indicates that Harris will be dismissed tomorrow. Stay tuned.