Arizona State Legislature v. Arizona Independent Redistricting Commission/Opinion of Chief Justice Roberts
SUPREME COURT OF THE UNITED STATES
No. 13–1314
ARIZONA STATE LEGISLATURE, APPELLANT v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
[June 29, 2015]
Chief Justice Roberts, with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.
Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.
What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”
The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court. The Constitution contains seventeen provisions referring to the “Legislature” of a State, many of which cannot possibly be read to mean “the people.” See Appendix, infra. Indeed, several provisions expressly distinguish “the Legislature” from “the People.” See Art. I, §2; Amdt. 17. This Court has accordingly defined “the Legislature” in the Elections Clause as “the representative body which ma[kes] the laws of the people.” Smiley v. Holm, 285 U. S. 355, 365 (1932) (quoting Hawke v. Smith (No. 1), 253 U. S. 221, 227 (1920); emphasis added).
The majority largely ignores this evidence, relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy. Nowhere does the majority explain how a constitutional provision that vests redistricting authority in “the Legislature” permits a State to wholly exclude “the Legislature” from redistricting. Arizona’s Commission might be a noble endeavor—although it does not seem so “independent” in practice—but the “fact that a given law or procedure is efficient, convenient, and useful … will not save it if it is contrary to the Constitution.” INS v. Chadha, 462 U. S. 919, 944 (1983). No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution. I respectfully dissent.
I
The majority begins by discussing policy. I begin with the Constitution. The Elections Clause provides:
The Elections Clause both imposes a duty on States and assigns that duty to a particular state actor: In the absence of a valid congressional directive to the contrary, States must draw district lines for their federal representatives. And that duty “shall” be carried out “in each State by the Legislature thereof.”“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, except as to the Places of chusing Senators.” Art. I, §4, cl. 1.
In Arizona, however, redistricting is not carried out by the legislature. Instead, as the result of a ballot initiative, an unelected body called the Independent Redistricting Commission draws the lines. See ante, at 6–7. The key question in the case is whether the Commission can conduct congressional districting consistent with the directive that such authority be exercised “by the Legislature.”
The majority concedes that the unelected Commission is not “the Legislature” of Arizona. The Court contends instead that the people of Arizona as a whole constitute “the Legislature” for purposes of the Elections Clause, and that they may delegate the congressional districting authority conferred by that Clause to the Commission. Ante, at 25. The majority provides no support for the delegation part of its theory, and I am not sure whether the majority’s analysis is correct on that issue. But even giving the Court the benefit of the doubt in that regard, the Commission is still unconstitutional. Both the Constitution and our cases make clear that “the Legislature” in the Elections Clause is the representative body which makes the laws of the people.
A
The majority devotes much of its analysis to establishing that the people of Arizona may exercise lawmaking power under their State Constitution. See ante, at 5–6, 25, 27–28. Nobody doubts that. This case is governed, however, by the Federal Constitution. The States do not, in the majority’s words, “retain autonomy to establish their own governmental processes,” ante, at 27, if those “processes” violate the United States Constitution. In a conflict between the Arizona Constitution and the Elections Clause, the State Constitution must give way. Art. VI, cl. 2; Cook v. Gralike, 531 U. S. 510, 523 (2001). The majority opinion therefore largely misses the point.
The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.
The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted). The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” Ante, at 3 (internal quotation marks omitted); see ante, at 27. Moreover, Dr. Johnson’s first example of the usage of “legislature” is this: “Without the concurrent consent of all three parts of the legislature, no law is or can be made.” 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the “Three Parts of the Legislature” of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the majority’s preferred definition, “the Legislature” referred to an institutional body of representatives, not the people at large.
Any ambiguity about the meaning of “the Legislature” is removed by other founding era sources. “[E]very state constitution from the Founding Era that used the term legislature defined it as a distinct multimember entity comprised of representatives.” Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. Online 131, 147, and n. 101 (2015) (citing eleven State Constitutions). The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed. 1961) (A. Hamilton) (describing “the State legislatures” as “select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.” 2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America … consist of two houses or branches.” Ibid. (emphasis deleted).
I could go on, but the Court has said this before. As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.” Hawke, 253 U. S., at 227. “What it meant when adopted it still means for the purpose of interpretation.” Ibid. “A Legislature” is “the representative body which ma[kes] the laws of the people.” Ibid.; see Smiley, 285 U. S., at 365 (relying on this definition); Colorado Gen. Assembly v. Salazar, 541 U. S. 1093, 1095 (2004) (Rehnquist, C. J., dissenting from denial of certiorari) (same).
B
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. When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself. Our precedents new and old have employed this structural method of interpretation to read the Constitution in the manner it was drafted and ratified—as a unified, coherent whole. See, e.g., NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20); id., at ___ (Scalia, J., concurring in judgment) (slip op., at 32); McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819); Martin v. Hunter’s Lessee, 1 Wheat. 304, 328–330 (1816); Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999).
The Constitution includes seventeen provisions referring to a State’s “Legislature.” See Appendix, infra. Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.
Start with the Constitution’s first use of the term: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Art. I, §2, cl. 1. This reference to a “Branch of the State Legislature” can only be referring to an institutional body, and the explicit juxtaposition of “the State Legislature” with “the People of the several States” forecloses the majority’s proposed reading.
The next Section of Article I describes how to fill vacancies in the United States Senate: “if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” §3, cl. 2.[1] The references to “the Recess of the Legislature of any State” and “the next Meeting of the Legislature” are only consistent with an institutional legislature, and make no sense under the majority’s reading. The people as a whole (schoolchildren and a few unnamed others excepted) do not take a “Recess.”
The list goes on. Article IV provides that the “United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” §4. It is perhaps conceivable that all the people of a State could be “convened”—although this would seem difficult during an “Invasion” or outbreak of “domestic Violence”—but the only natural reading of the Clause is that “the Executive” may submit a federal application when “the Legislature” as a representative body cannot be convened.
Article VI provides that the “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.” Cl. 3. Unless the majority is prepared to make all the people of every State swear an “Oath or Affirmation, to support this Constitution,” this provision can only refer to the “several State Legislatures” in their institutional capacity.
Each of these provisions offers strong structural indications about what “the Legislature” must mean. But the most powerful evidence of all comes from the Seventeenth Amendment. Under the original Constitution, Senators were “chosen by the Legislature” of each State, Art. I, §3, cl. 1, while Members of the House of Representatives were chosen “by the People,” Art. I, §2, cl. 1. That distinction was critical to the Framers. As James Madison explained, the Senate would “derive its powers from the States,” while the House would “derive its powers from the people of America.” The Federalist No. 39, at 244. George Mason believed that the power of state legislatures to select Senators would “be a reasonable guard” against “the Danger … that the national, will swallow up the State Legislatures.” 1 Records of the Federal Convention of 1787, p. 160 (M. Farrand ed. 1911). Not everyone agreed. James Wilson proposed allowing the people to elect Senators directly. His proposal was rejected ten to one. Debates in the Federal Convention of 1787, S. Doc. No. 404, 57th Cong., 1st Sess., 8 (1902).
Before long, reformers took up Wilson’s mantle and launched a protracted campaign to amend the Constitution. That effort began in 1826, when Representative Henry Storrs of New York proposed—but then set aside—a constitutional amendment transferring the power to elect Senators from the state legislatures to the people. 2 Cong. Deb. 1348–1349. Over the next three-quarters of a century, no fewer than 188 joint resolutions proposing similar reforms were introduced in both Houses of Congress. 1 W. Hall, The History and Effect of the Seventeenth Amendment 183–184 (1936).
At no point in this process did anyone suggest that a constitutional amendment was unnecessary because “Legislature” could simply be interpreted to mean “people.” See Hawke, 253 U. S., at 228 (“It was never suggested, so far as we are aware, that the purpose of making the office of Senator elective by the people could be accomplished by a referendum vote. The necessity of the amendment to accomplish the purpose of popular election is shown in the adoption of the amendment.”). In fact, as the decades rolled by without an amendment, 28 of the 45 States settled for the next best thing by holding a popular vote on candidates for Senate, then pressuring state legislators into choosing the winner. See, e.g., Abstract of Laws Relating to the Election of United States Senators, S. Doc. No. 393, 59th Cong., 2d Sess. (1907). All agreed that cutting the state legislature out of senatorial selection entirely would require nothing less than to “Strike out” the original words in the Constitution and “insert, ‘elected by the people’ ” in its place. Cong. Globe, 31st Cong., 1st Sess., 88 (1849) (proposal of Sen. Jeremiah Clemens).
Yet that is precisely what the majority does to the Elections Clause today—amending the text not through the process provided by Article V, but by judicial decision. The majority’s revision renders the Seventeenth Amendment an 86-year waste of time, and singles out the Elections Clause as the only one of the Constitution’s seventeen provisions referring to “the Legislature” that departs from the ordinary meaning of the term.
The Commission had no answer to this point. See Tr. of Oral Arg. 42 (Justice Alito: “Is there any other provision where legislature means anything other than the conventional meaning?” Appellee: “I don’t know the answer to that question.”).
The Court’s response is not much better. The majority observes that “the Legislature” of a State may perform different functions under different provisions of the Constitution. Under Article I, §3, for example, “the Legislature” performed an “electoral” function by choosing Senators. The “Legislature” plays a “consenting” function under Article I, §8, and Article IV, §3; a “ratifying” function under Article V; and a “lawmaking” function under the Elections Clause. Ante, at 19, and n. 17. All true. The majority, however, leaps from the premise that “the Legislature” performs different functions under different provisions to the conclusion that “the Legislature” assumes different identities under different provisions.
As a matter of ordinary language and common sense, however, a difference in function does not imply a difference in meaning. A car, for example, generally serves a transportation function. But it can also fulfill a storage function. At a tailgate party or a drive-in movie, it may play an entertainment function. In the absence of vacancies at the roadside motel, it could provide a lodging function. To a neighbor with a dead battery, it offers an electricity generation function. And yet, a person describing a “car” engaged in any of these varied functions would undoubtedly be referring to the same thing.
The Constitution itself confirms this point. Articles I and II assign many different functions to the Senate: a lawmaking function, an impeachment trial function, a treaty ratification function, an appointee confirmation function, an officer selection function, a qualification judging function, and a recordkeeping function. Art. I, §1; §3, cls. 5, 6; §5, cls. 1, 3; §7, cl. 2; Art. II, §2, cl. 2. Yet the identity of the Senate remains the same as it discharges these various functions.
Similarly, the House of Representatives performs different functions, including lawmaking, impeachment, and resolving Presidential elections in which no candidate wins a majority in the Electoral College. Art. I, §1; §2, cl. 5; §7, cl. 2; Amdt. 12. The President is assigned not only executive functions, Art. II, but also legislative functions, such as approving or vetoing bills, convening both Houses of Congress, and recommending measures for their consideration, Art. I, §7, cl. 2; Art. II, §3. Courts not only exercise a judicial function, Art. III, §1, but may also perform an appointment function, Art. II, §2, cl. 2. And so on. Neither the majority nor the Commission points to a single instance in which the identity of these actors changes as they exercise different functions.
The majority attempts to draw support from precedent, but our cases only further undermine its position. In Hawke, this Court considered the meaning of “the Legislatur[e]” in Article V, which outlines the process for ratifying constitutional amendments. The Court concluded that “Legislature” meant “the representative body which ma[kes] the laws of the people.” 253 U. S., at 227. The Court then explained that “[t]he term is often used in the Constitution with this evident meaning.” Ibid. (emphasis added). The Court proceeded to list other constitutional provisions that assign different functions to the “Legislature,” just as the majority does today. Id., at 227–228; see ante, at 19, n. 17.
Unlike the majority today, however, the Court in Hawke never hinted that the meaning of “Legislature” varied across those different provisions because they assigned different functions. To the contrary, the Court drew inferences from the Seventeenth Amendment and its predecessor, Article I, §3—in which “the Legislature” played an electoral function—to define the “Legislature” in Article V, which assigned it a ratification function. See 253 U. S., at 228. The Court concluded that “Legislature” refers to a representative body, whatever its function. As the Court put it, “There can be no question that the framers of the Constitution clearly understood and carefully used the terms in which that instrument referred to the action of the legislatures of the States. When they intended that direct action by the people should be had they were no less accurate in the use of apt phraseology to carry out such purpose.” Ibid. (citing Art. I, §2).
Smiley, the leading precedent on the meaning of “the Legislature” in the Elections Clause, reaffirmed the definition announced in Hawke. In Smiley, the petitioner argued—as the Commission does here—that “the Legislature” referred not just to “the two houses of the legislature” but to “the entire legislative power of the state … however exercised.” Brief for Petitioner, O. T. 1931, No. 617, p. 22 (internal quotation marks omitted). The Court did not respond by holding, as the majority today suggests, that “ ‘the Legislature’ comprises the referendum and the Governor’s veto in the context of regulating congressional elections,” or that “ ‘the Legislature’ has a different identity” in the Elections Clause than it does in Article V. Ante, at 18–19. Instead, the Court in Smiley said this:
“Much that is urged in argument with regard to the meaning of the term ‘Legislature’ is beside the point. As this Court said in Hawke … the term was not one ‘of uncertain meaning when incorporated into the Constitution. What it meant when adopted it still means for purposes of interpretation. A Legislature was then the representative body which made the laws of the people.’ ” 285 U. S., at 365 (quoting Hawke, 253 U. S., at 227).
Remarkably, the majority refuses to even acknowledge the definition of “the Legislature” adopted in both Smiley and Hawke, and instead embraces the interpretation that this Court unanimously rejected more than 80 years ago.[2]
C
The history of the Elections Clause further supports the conclusion that “the Legislature” is a representative body. The first known draft of the Clause to appear at the Constitutional Convention provided that “Each state shall prescribe the time and manner of holding elections.” 1 Debates on the Federal Constitution 146 (J. Elliot ed. 1836). After revision by the Committee of Detail, the Clause included the important limitation at issue here: “The times and places, and the manner, of holding the elections of the members of each house, shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the United States.” Id., at 225 (emphasis added). The insertion of “the legislature” indicates that the Framers thought carefully about which entity within the State was to perform congressional districting. And the parallel between “the legislature of each state” and “the legislature of the United States” further suggests that they meant “the legislature” as a representative body.
As the majority explains, the debate over the ratification of the Elections Clause centered on its second part, which empowers Congress to “make or alter” regulations prescribed by “the Legislature” of a State. See ante, at 25–27. Importantly for our purposes, however, both sides in this debate “recognized the distinction between the state legislature and the people themselves.” Brown v. Secretary of State of Florida, 668 F. 3d 1271, 1275–1276, n. 4 (CA11 2012).
The Anti-Federalists, for example, supported vesting election regulation power solely in state legislatures because state “legislatures were more numerous bodies, usually elected annually, and thus more likely to be in sympathy with the interests of the people.” Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. Pa. J. Const. L. 1, 31 (2010) (emphasis added) (citing sources from ratification debates). Alexander Hamilton and others responded by raising the specter of state legislatures—which he described as “local administrations”—deciding to “annihilate” the Federal Government by “neglecting to provide for the choice of persons to administer its affairs.” The Federalist No. 59, at 363. As the majority acknowledges, the distinction between “the Legislature” and the people “occasioned no debate.” Ante, at 27. That is because everybody understood what “the Legislature” meant.
The majority contends that its counterintuitive reading of “the Legislature” is necessary to advance the “animating principle” of popular sovereignty. Ante, at 24. But the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified the Elections Clause did so knowing that it assigned authority to “the Legislature” as a representative body. The Elections Clause was not, as the majority suggests, an all-purpose “safeguard against manipulation of electoral rules by politicians.” Ante, at 26. Like most provisions of the Constitution, the Elections Clause reflected a compromise—a pragmatic recognition that the grand project of forging a Union required everyone to accept some things they did not like. See The Federalist No. 59, at 364 (describing the power allocated to state legislatures as “an evil which could not have been avoided”). This Court has no power to upset such a compromise simply because we now think that it should have been struck differently. As we explained almost a century ago, “[t]he framers of the Constitution might have adopted a different method,” but it “is not the function of courts … to alter the method which the Constitution has fixed.” Hawke, 253 U. S., at 227.
D
In addition to text, structure, and history, several precedents interpreting the Elections Clause further reinforce that “the Legislature” refers to a representative body.
The first precedent comes not from this Court, but from Congress. Acting under its authority to serve as “the Judge of the Elections, Returns and Qualifications of its own Members,” Art. I, §5, cl. 1, the House of Representatives in 1866 confronted a dispute about who should be seated as the Congressman from the Fifth District of Michigan. At a popular convention, Michigan voters had amended the State Constitution to require votes to be cast within a resident’s township or ward. The Michigan Legislature, however, passed a law permitting soldiers to vote in alternative locations. If only the local votes counted, one candidate (Baldwin) would win; if the outside votes were included, the other candidate (Trowbridge) would be entitled to the seat. See Baldwin v. Trowbridge, 2 Bartlett Contested Election Cases, H. R. Misc. Doc. No. 152, 41st Cong., 2d Sess., 46–47 (1866).
The House Elections Committee explained that the Elections Clause conferred power on “the Legislature” of Michigan to prescribe election regulations. “But,” the Committee asked, “what is meant by ‘the legislature?’ Does it mean the legislative power of the State, which would include a convention authorized to prescribe fundamental law; or does it mean the legislature eo nomine, as known in the political history of the country?” Id., at 47. The Committee decided, and the full House agreed, that “the Legislature” in the Elections Clause was the “legislature eo nomine”—the legislature by that name, a representative body. Ibid. That conclusion followed both from the known meaning of “the Legislature” at the time of the framing and the many other uses of the word in the Constitution that would not be compatible with a popular convention. Thus, “[w]here there is a conflict of authority between the constitution and legislature of a State in regard to fixing place of elections, the power of the legislature is paramount.” Id., at 46; see California Democratic Party v. Jones, 530 U. S. 567, 603, and n. 11 (2000) (Stevens, J., dissenting) (relying on Baldwin for its conclusion that “the Elections Clause’s specific reference to ‘the Legislature’ is not so broad as to encompass the general ‘legislative power of this State’ ”).
The majority draws attention to the minority report in Baldwin. Ante, at 29. Under the present circumstances, I take some comfort in the Court’s willingness to consider dissenting views. Still, the minority report does not diminish the force of Baldwin. The report cites a Michigan Supreme Court precedent that allegedly reached a contrary result, but that case turned entirely on state constitutional questions arising from a state election—not federal constitutional questions arising from a federal election. See People ex rel. Twitchell v. Blodgett, 13 Mich. 127 (1865). The majority also contends that Baldwin “appears in tension with” an earlier House Elections Committee precedent. Ante, at 29. By its own terms, however, that earlier precedent did not involve a conflict between a state legislative act and a state constitutional provision. See Shiel v. Thayer, 1 Bartlett Contested Election Cases, H. R. Misc. Doc. No. 57, 38th Cong., 2d Sess., 350 (1861) (“the two branches of the legislature differed upon the question … and so the bill never became a law”). In any event, to the degree that the two precedents are inconsistent, the later decision in Baldwin should govern.[3]
The next relevant precedent is this Court’s decision in McPherson v. Blacker, 146 U. S. 1 (1892). That case involved a constitutional provision with considerable similarity to the Elections Clause, the Presidential Electors Clause of Article II: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors … .” §1, cl. 2 (emphasis added). The question was whether the state legislature, as a body of representatives, could divide authority to appoint electors across each of the State’s congressional districts. The Court upheld the law and emphasized that the plain text of the Presidential Electors Clause vests the power to determine the manner of appointment in “the Legislature” of the State. That power, the Court explained, “can neither be taken away nor abdicated.” 146 U. S., at 35 (emphasis added; internal quotation marks omitted).
Against that backdrop, the Court decided two cases regarding the meaning of “the Legislature” in the Elections Clause. In Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916), the Ohio Legislature passed a congressional redistricting law. Under the Ohio Constitution, voters held a referendum on the law and rejected it. A supporter of the law sued on behalf of the State, contending that the referendum “was not and could not be a part of the legislative authority of the State and therefore could have no influence on … the law creating congressional districts” under the Elections Clause. Id., at 567.
This Court rejected the challenger’s constitutional argument as a nonjusticiable claim that the referendum “causes a State … to be not republican” in violation of the Guarantee Clause of the Constitution. Id., at 569 (citing Art. IV, §4). The Court also rejected an argument that Ohio’s use of the referendum violated a federal statute, and held that Congress had the power to pass that statute under the Elections Clause. Id., at 568–569. Hildebrant in no way suggested that the state legislature could be displaced from the redistricting process, and Hildebrant certainly did not hold—as the majority today contends—that “the word [‘Legislature’ in the Elections Clause] encompassed a veto power lodged in the people.” Ante, at 16. Hildebrant simply approved a State’s decision to employ a referendum in addition to redistricting by the Legislature. See 241 U. S., at 569. The result of the decision was to send the Ohio Legislature back to the drawing board to do the redistricting.
In Smiley, the Minnesota Legislature passed a law adopting new congressional districts, and the Governor exercised his veto power under the State Constitution. As noted above, the Minnesota secretary of state defended the veto on the ground that “the Legislature” in the Elections Clause referred not just to “the two houses of the legislature” but to “the entire legislative power of the state … however exercised.” This Court rejected that argument, reiterating that the term “Legislature” meant “the representative body which made the laws of the people.” 285 U. S., at 365 (quoting Hawke, 253 U. S., at 227). The Court nevertheless went on to hold that the Elections Clause did not prevent a State from applying the usual rules of its legislative process—including a gubernatorial veto—to election regulations prescribed by the legislature. 285 U. S., at 373. As in Hildebrant, the legislature was not displaced, nor was it redefined; it just had to start on a new redistricting plan.
The majority initially describes Hildebrant and Smiley as holding 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.” Ante, at 19. That description is true, so far as it goes. But it hardly supports the result the majority reaches here. There is a critical difference between allowing a State to supplement the legislature’s role in the legislative process and permitting the State to supplant the legislature altogether. See Salazar, 541 U. S., at 1095 (Rehnquist, C. J., dissenting from denial of certiorari) (“to be consistent with Article I, §4, there must be some limit on the State’s ability to define lawmaking by excluding the legislature itself”). Nothing in Hildebrant, Smiley, or any other precedent supports the majority’s conclusion that imposing some constraints on the legislature justifies deposing it entirely. *** The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded.
The majority’s contrary understanding requires it to accept a definition of “the Legislature” that contradicts the term’s plain meaning, creates discord with the Seventeenth Amendment and the Constitution’s many other uses of the term, makes nonsense of the drafting and ratification of the Elections Clause, and breaks with the relevant precedents. In short, the effect of the majority’s decision is to erase the words “by the Legislature thereof” from the Elections Clause. That is a judicial error of the most basic order. “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible.” Marbury v. Madison, 1 Cranch 137, 174 (1803).
II
A
Section 2a(c) establishes a number of default rules that govern the States’ manner of electing representatives “[u]ntil a State is redistricted in the manner provided by the law thereof.” Section 2a(c) is therefore “inapplicable unless the state legislature, and state and federal courts, have all failed to redistrict” the State. Branch v. Smith, 538 U. S. 254, 275 (2003) (plurality opinion); see id., at 298–300 (O’Connor, J., concurring in part and dissenting in part). Here, the Commission has redistricted the State “in the manner provided by the law thereof.” So by its terms, Section 2a(c) does not come into play in this case.
The majority spends several pages discussing Section 2a(c), but it conspicuously declines to say that the statute actually applies to this case.[5] The majority notes that the pre-1911 versions of Section 2a(c) applied only until “the legislature” redistricted the State, while the post-1911 versions applied only until the State is redistricted “in the manner provided by the law thereof.” The majority also describes in detail the legislative history that accompanied the 1911 amendment. But if Section 2a(c) does not apply, its legislative history is doubly irrelevant.
The majority seems to suggest that Section 2a(c) somehow indicates federal approval for the district lines that the Commission has drawn. See ante, at 23. But the statute does nothing of the sort. Section 2a(c) explains what rules apply “[u]ntil a State is redistricted”; it says nothing about what rules apply after a State is redistricted. And it certainly does not say that the State’s redistricting plan will by some alchemy become federal law. No legislative drafter remotely familiar with the English language would say that a State had to follow default rules “[u]ntil [it] is redistricted in the manner provided by the law thereof,” when what he meant was “any redistricting plan that the State adopts shall become federal law.” And if the drafter was doing something as significant as transforming state law into federal law, he presumably would have taken care to make that dramatic step “unmistakably clear.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (internal quotation marks omitted). Tellingly, our most recent case on the meaning of Section 2a(c) seems not to have even considered the majority’s position. See Branch, 538 U. S. 254.
Indeed, the majority does not even seem persuaded by its own argument. The majority quickly cautions, in discussing Section 2a(c), that “a State is required to comply with the Federal Constitution, the Voting Rights Act, and other federal laws when it draws and implements its district map.” Ante, at 22, n. 20. The majority therefore concludes that “nothing in §2a(c) affects a challenge to a state district map on the ground that it violates one or more of those federal requirements.” Ibid. But here the Arizona Legislature has challenged “a state district map on the ground that it violates one … of those federal requirements”—the Elections Clause. If we take the majority at its word, nothing in Section 2a(c) should affect that challenge.
B
Not only is the majority’s reading of Section 2a(c) implausible as a matter of statutory interpretation, it would also likely violate the Constitution in multiple ways.
First, the majority’s reading of Section 2a(c) as a statute approving the lines drawn by the Commission would seemingly authorize Congress to alter the Elections Clause. The first part of the Elections Clause gives state legislatures the power to prescribe regulations regarding the times, places, and manner of elections; the second part of the Clause gives Congress the power to “make or alter such Regulations.” There is a difference between making or altering election regulations prescribed by the state legislature and authorizing an entity other than the state legislature to prescribe election regulations. In essence, the majority’s proposed reading permits Congress to use the second part of the Elections Clause to nullify the first. Yet this Court has expressly held that “Congress ha[s] no power to alter Article I, section 4 [the Elections Clause].” Smiley, 285 U. S., at 372; see also Clinton v. City of New York, 524 U. S. 417 (1998) (Congress may not circumvent Article I constraints on its lawmaking power); Chadha, 462 U. S. 919 (same).
Second, the majority’s interpretation of Section 2a(c) would create a serious delegation problem. As a general matter, Congress may pass statutes that delegate some discretion to those who administer the laws. It is a well-accepted principle, however, that Congress may not delegate authority to one actor when the Constitution vests that authority in another actor. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 472 (2001). The majority’s reading of Section 2a(c) contradicts that rule by allowing Congress to delegate federal redistricting authority to a state entity other than the one in which the Elections Clause vests that authority: “the Legislature.”
Third, the majority’s interpretation conflicts with our most recent Elections Clause precedent, Arizona v. Inter Tribal Council of Ariz., Inc., 570 U. S. 1 (2013). There we explained that when Congress legislates under the Elections Clause, it “necessarily displaces some element of a pre-existing legal regime erected by the States.” Id., at ___ (slip op., at 11). That is so because “the power the Elections Clause confers [on Congress] is none other than the power to pre-empt.” Id., at ___–___, (slip op., at 11–12). Put differently, “all action under the Elections Clause displaces some element of a pre-existing state regulatory regime, because the text of the Clause confers the power to do exactly (and only) that.” Id., at ___, n. 6 (slip op., at 11, n. 6). Under the majority’s interpretation of Section 2a(c), however, Congress has done the opposite of preempting or displacing state law—it has adopted state law.
Normally, when “a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U. S. 22, 62 (1932). The multiple serious constitutional doubts raised by the majority’s interpretation of Section 2a(c)—in addition to the sheer weakness of its reading as a textual matter—provide more than enough reason to reject the majority’s construction. Section 2a(c) does not apply to this case.
III
Justice Jackson once wrote that the Constitution speaks in “majestic generalities.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943). In many places it does, and so we have cases expounding on “freedom of speech” and “unreasonable searches and seizures.” Amdts. 1, 4. Yet the Constitution also speaks in some places with elegant specificity. A Member of the House of Representatives must be 25 years old. Art. I, §2, cl. 2. Every State gets two Senators. Art. I, §3, cl. 1. And the times, places, and manner of holding elections for those federal representatives “shall be prescribed in each State by the Legislature thereof.” Art. I, §4, cl. 1.
For the reasons I have explained, there is no real doubt about what “the Legislature” means. The Framers of the Constitution were “practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). We ought to give effect to the words they used.
The majority today shows greater concern about redistricting practices than about the meaning of the Constitution. I recognize the difficulties that arise from trying to fashion judicial relief for partisan gerrymandering. See Vieth v. Jubelirer, 541 U. S. 267 (2004); ante, at 1. But our inability to find a manageable standard in that area is no excuse to abandon a standard of meaningful interpretation in this area. This Court has stressed repeatedly that a law’s virtues as a policy innovation cannot redeem its inconsistency with the Constitution. “Failure of political will does not justify unconstitutional remedies.” Clinton, 524 U. S., at 449 (Kennedy, J., concurring); see Stern v. Marshall, 564 U. S. ___ (2011); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010); Bowsher v. Synar, 478 U. S. 714 (1986); Chadha, 462 U. S. 919; Myers v. United States, 272 U. S. 52 (1926).
Indeed, the Court has enforced the text of the Constitution to invalidate state laws with policy objectives reminiscent of this one. Two of our precedents held that States could not use their constitutions to impose term limits on their federal representatives in violation of the United States Constitution. Cook, 531 U. S. 510; U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995). The people of the States that enacted these reforms surely viewed them as measures that would “place the lead rein in the people’s hands.” Ante, at 27. Yet the Court refused to accept “that the Framers spent significant time and energy in debating and crafting Clauses that could be easily evaded.” Term Limits, 514 U. S., at 831. The majority approves just such an evasion of the Constitution today.[6]
The Court also overstates the effects of enforcing the plain meaning of the Constitution in this case. There is no dispute that Arizona may continue to use its Commission to draw lines for state legislative elections. The representatives chosen in those elections will then be responsible for congressional redistricting as members of the state legislature, so the work of the Commission will continue to influence Arizona’s federal representation.
Moreover, reading the Elections Clause to require the involvement of the legislature will not affect most other redistricting commissions. As the majority notes, many States have commissions that play an “auxiliary role” in congressional redistricting. Ante, at 8, and nn. 8–9. But in these States, unlike in Arizona, the legislature retains primary authority over congressional redistricting. See Brief for National Conference of State Legislatures as Amicus Curiae 3–17.
The majority also points to a scattered array of election-related laws and constitutional provisions enacted via popular lawmaking that it claims would be “endangered” by interpreting the Elections Clause to mean what it says. Ante, at 33. Reviewing the constitutionality of these far-flung provisions is well outside the scope of this case. Suffice it to say that none of them purports to do what the Arizona Constitution does here: set up an unelected, unaccountable institution that permanently and totally displaces the legislature from the redistricting process. “[T]his wolf comes as a wolf.” Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting).
Absent from the majority’s portrayal of the high motives that inspired the Arizona Commission is any discussion of how it has actually functioned. The facts described in a recent opinion by a three-judge District Court detail the partisanship that has affected the Commission on issues ranging from staffing decisions to drawing the district lines. See Harris v. Arizona Independent Redistricting Comm’n, 993 F. Supp. 2d 1042 (Ariz. 2014). The per curiam opinion explained that “partisanship played some role in the design of the map,” that “some of the commissioners were motivated in part in some of the line-drawing decisions by a desire to improve Democratic prospects in the affected districts,” and that the Commission retained a mapping consultant that “had worked for Democratic, independent, and nonpartisan campaigns, but no Republican campaigns.” Id., at 1046, 1047, 1053. The hiring of the mapping consultant provoked sufficient controversy that the Governor of Arizona, supported by two-thirds of the Arizona Senate, attempted to remove the chairwoman of the Commission for “substantial neglect of duty and gross misconduct in office.” Id., at 1057; see Arizona Independent Redistricting Comm’n v. Brewer, 229 Ariz. 347, 275 P. 3d 1267 (2012) (explaining the removal and concluding that the Governor exceeded her authority under the Arizona Constitution).
Judge Silver’s separate opinion noted that “the very structure of Arizona’s reformed redistricting process reflects that partisanship still plays a prominent role.” 993 F. Supp. 2d, at 1083. Judge Wake’s separate opinion described the Commission’s “systematic overpopulation of Republican plurality districts and underpopulation of Democratic plurality districts” as “old-fashioned partisan malapportionment.” Id., at 1091, 1108. In his words, the “Commission has been coin-clipping the currency of our democracy—everyone’s equal vote—and giving all the shavings to one party, for no valid reason.” Id., at 1092.
The District Court concluded by a two-to-one margin that this partisanship did not rise to the level of a constitutional violation. The case is pending on appeal before this Court, and I take no position on the merits question. But a finding that the partisanship in the redistricting plan did not violate the Constitution hardly proves that the Commission is operating free of partisan influence—and certainly not that it complies with the Elections Clause. *** The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change. They can follow the lead of the reformers who won passage of the Seventeenth Amendment. Indeed, several constitutional amendments over the past century have involved modifications of the electoral process. Amdts. 19, 22, 24, 26. Unfortunately, today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so much easier to write an old one out?
I respectfully dissent.
- ↑ This provision was modified by the Seventeenth Amendment.
- ↑ The only hint of support the majority can glean from precedent is a passing reference in Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932), a case about how to interpret “trade or commerce” in the Sherman Act. See ante, at 18. And even that selected snippet describes the “legislature” as a “body.” 286 U. S., at 434.
- ↑ The majority’s suggestion that Baldwin should be dismissed as an act of partisanship appears to have no basis, unless one is willing to regard as tainted every decision in favor of a candidate from the same party as a majority of the Elections Committee. Ante, at 29–30.
- ↑ Not surprisingly, Section 2a(c) was barely raised below and was not addressed by the District Court. See ante, at 19, n. 18.
- ↑ The majority is prepared to say that Section 2a(c) has more than “nothing to do with this case.” Ante, at 23, n. 22. Not exactly a ringing endorsement.
- ↑ Term Limits was of course not decided on the abstract principle that “the people should choose whom they please to govern them.” Ante, at 27, n. 24 (quoting 514 U. S., at 783). If that were the rule, the people could choose a 20-year-old Congressman, a 25-year-old Senator, or a foreign President. But see Art. I, §2, cl. 2; §3, cl. 3; Art. II, §1, cl. 5. Term Limits instead relied on analysis of the text, structure, and history of the Constitution—all factors that cut strongly against the majority’s position today.
APPENDIX:
“LEGISLATURE” IN THE CONSTITUTION
Art. I, §2, cl. 1: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Art. I, §3, cl. 1: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” (Modified by Amdt. 17.)
Art. I, §3, cl. 2: “Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.” (Modified by Amdt. 17.)
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, except as to the Places of chusing Senators.”
Art. I, §8, cl. 17: “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings … .”
Art. II, §1, cl. 2: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Art. IV, §3, cl. 1: “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.”
Art. IV, §4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.”
Art. V: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Art. VI, cl. 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”
Amdt. 14, §2: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (Modified by Amdts. 19, 26)
Amdt. 14, §3: “No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Amdt. 17, cl. 1: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”
Amdt. 17, cl. 2: “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
Amdt. 18, §3: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.” (Superseded by Amdt. 21.)
Amdt. 20, §6: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”
Amdt. 22, §2: “This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.”