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U.S. Supreme Court to Rule on the Meaning of ‘Legislature’

How it’s defined could impact state election laws from campaign finance to voter ID.

When is a legislature not a legislature? That odd question could have big implications for election law.

The U.S. Supreme Court is about to hear arguments in a case brought by Arizona legislators challenging the authority of the state’s independent redistricting commission, which was set up by voters through a ballot initiative back in 2000.

The federal Constitution states that election law shall be crafted “in each state by the legislature thereof.” The idea that this clause refers to anything other than the legislature itself is “wholly specious,” argues Arizona Senate President Andy Biggs.

The commission’s lawyer, however, notes that the high court has previously held that the word “legislature” in the Constitution doesn’t necessarily mean the literal legislature, but rather the state’s lawmaking process on the whole.

But the fact that the Supreme Court agreed to hear this case in the first place might mean some of the justices are ready to rethink this interpretation.

If the high court ultimately sides with Arizona lawmakers, the ramifications could affect not only other states with redistricting commissions, but also any election laws approved by voters.

“Redistricting is really just the tip of the iceberg if the Supreme Court is going to strike it down,” says Nathaniel Persily, a Stanford University law professor. “Party primary laws, voter ID laws, campaign finance -- all would be implicated.”

Independent redistricting commissions grew out of voters’ concerns over gerrymandering. If granted sole authority over redistricting, voters worried, legislators would concern themselves with protecting incumbents and party interests.

Legislators, however, can point out that redistricting commissions have had a mixed record in terms of fulfilling their mission of creating more competitive districts. They can also claim to be more transparent in their operations than independent commissions may be.

These policy arguments aren’t what the high court is going to concern itself with. Still, arguing over constitutional language regarding election authority has the potential to backfire on legislators. The same clause that grants legislatures the power to set election laws also makes it clear, in plain language, that Congress can supersede them whenever it wants.

Since Congress has already passed laws clarifying state authority regarding redistricting, the court can point to those statutes to resolve the Arizona dispute, according to election law expert Justin Levitt of Loyola Law School in Los Angeles. That would avoid the “huge mess” that would be created if the high court were to find that only legislatures and not commissions or courts can have a say in redistricting at the state level, he says. “This is a fight between a state and its people. The court usually hates refereeing those contests.”

Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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