Arizona State Legislature v. Arizona Independent Redistricting Comm'n , 135 S. Ct. 2652 ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMMISSION ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
No. 13–1314. Argued March 2, 2015—Decided June 29, 2015
Under Arizona’s Constitution, the electorate shares lawmaking author-
ity on equal footing with the Arizona Legislature. The voters may
adopt laws and constitutional amendments by ballot initiative, and
they may approve or disapprove, by referendum, measures passed by
the Legislature. Ariz. Const., Art. IV, pt. 1, §1. “Any law which may
be enacted by the Legislature . . . may be enacted by the people under
the Initiative.” Art. XXII, §14.
In 2000, Arizona voters adopted Proposition 106, an initiative
aimed at the problem of gerrymandering. Proposition 106 amended
Arizona’s Constitution, removing redistricting authority from the Ar-
izona Legislature and vesting it in an independent commission, the
Arizona Independent Redistricting Commission (AIRC). After the
2010 census, as after the 2000 census, the AIRC adopted redistricting
maps for congressional as well as state legislative districts. The Ari-
zona Legislature challenged the map the Commission adopted in
2012 for congressional districts, arguing that the AIRC and its map
violated the “Elections Clause” of the U. S. Constitution, which pro-
vides: “The Times, Places and Manner of holding Elections for Sena-
tors 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.” Because “Legislature” means the State’s
representative assembly, the Arizona Legislature contended, the
Clause precludes resort to an independent commission, created by in-
itiative, to accomplish redistricting. A three-judge District Court
held that the Arizona Legislature had standing to sue, but rejected
its complaint on the merits.
Held:
2 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Syllabus
1. The Arizona Legislature has standing to bring this suit. In
claiming that Proposition 106 stripped it of its alleged constitutional
prerogative to engage in redistricting and that its injury would be
remedied by a court order enjoining the proposition’s enforcement,
the Legislature has shown injury that is ‘concrete and particularized’
and ‘actual or imminent,’ ” Arizonans for Official English v. Arizona,
520 U. S. 43, 64, “fairly traceable to the challenged action,” and “re-
dressable by a favorable ruling,” Clapper v. Amnesty Int’l USA, 568
U. S. ___, ___. Specifically, Proposition 106, together with the Arizo-
na Constitution’s ban on efforts by the Arizona Legislature to under-
mine the purposes of an initiative, would “completely nullif[y]” any
vote by the Legislature, now or “in the future,” purporting to adopt a
redistricting plan. Raines v. Byrd, 521 U. S. 811, 823–824. Pp. 9–15.
2. The Elections Clause and 2 U. S. C. §2a(c) permit Arizona’s use
of a commission to adopt congressional districts. Pp. 15–35.
(a) Redistricting is a legislative function to be performed in ac-
cordance with the State’s prescriptions for lawmaking, which may in-
clude the referendum, Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565,
567, and the Governor’s veto, Smiley v. Holm, 285 U. S. 355, 369.
While exercise of the initiative was not at issue in this Court’s prior
decisions, there is no constitutional barrier to a State’s empowerment
of its people by embracing that form of lawmaking. Pp. 15–19.
(b) Title 2 U. S. C. §2a(c)—which provides that, “[u]ntil a State is
redistricted in the manner provided by the law thereof after any ap-
portionment,” it must follow federally prescribed redistricting proce-
dures—permits redistricting in accord with Arizona’s initiative.
From 1862 through 1901, apportionment Acts required a State to fol-
low federal procedures unless “the [state] legislature” drew district
lines. In 1911, Congress, recognizing that States had supplemented
the representative legislature mode of lawmaking with a direct law-
making role for the people, replaced the reference to redistricting by
the state “legislature” with a reference to redistricting of a State “in
the manner provided by the laws thereof.” §4, 37 Stat. 14. The Act’s
legislative history “leaves no . . . doubt,” Hildebrant, 241 U. S., at
568, that the change was made to safeguard to “each state full au-
thority to employ in the creation of congressional districts its own
laws and regulations.” 47 Cong. Rec. 3437. “If they include the initi-
ative, it is included.” Id., at 3508. Congress used virtually identical
language in enacting §2a(c) in 1941. This provision also accords full
respect to the redistricting procedures adopted by the States. Thus,
so long as a State has “redistricted in the manner provided by the law
thereof”—as Arizona did by utilizing the independent commission
procedure in its Constitution—the resulting redistricting plan be-
comes the presumptively governing map.
Cite as: 576 U. S. ____ (2015) 3
Syllabus
Though four of §2a(c)’s five default redistricting procedures—
operative only when a State is not “redistricted in the manner pro-
vided by [state] law”—have become obsolete as a result of this Court’s
decisions embracing the one-person, one-vote principle, this infirmity
does not bear on the question whether a State has been “redistricted
in the manner provided by [state] law.” Pp. 19–23.
(c) The Elections Clause permits the people of Arizona to provide
for redistricting by independent commission. The history and pur-
pose of the Clause weigh heavily against precluding the people of Ar-
izona from creating a commission operating independently of the
state legislature to establish congressional districts. Such preclusion
would also run up against the Constitution’s animating principle that
the people themselves are the originating source of all the powers of
government. Pp. 24–35.
(1) The dominant purpose of the Elections Clause, the histori-
cal record bears out, was to empower Congress to override state elec-
tion rules, not to restrict the way States enact legislation. See Inter
Tribal Council of Ariz., 570 U. S., at ___. Ratification arguments in
support of congressional oversight focused on potential abuses by
state politicians, but the legislative processes by which the States
could exercise their initiating role in regulating congressional elec-
tions occasioned no debate. Pp. 25–27.
(2) There is no suggestion that the Election Clause, by specify-
ing “the Legislature thereof,” required assignment of congressional
redistricting authority to the State’s representative body. It is char-
acteristic of the federal system that States retain autonomy to estab-
lish their own governmental processes free from incursion by the
Federal Government. See, e.g., Alden v. Maine, 527 U. S. 706, 752.
“Through the structure of its government, and the character of those
who exercise government authority, a State defines itself as a sover-
eign.” Gregory v. Ashcroft, 501 U. S. 452, 460. Arizona engaged in
definition of that kind when its people placed both the initiative pow-
er and the AIRC’s redistricting authority in the portion of the Arizo-
na Constitution delineating the State’s legislative authority, Ariz.
Const., Art. IV. The Elections Clause should not be read to single out
federal elections as the one area in which States may not use citizen
initiatives as an alternative legislative process. And reading the
Clause to permit the use of the initiative to control state and local
elections but not federal elections 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, p. 374 (Hamilton).
Pp. 27–30.
(3) The Framers may not have imagined the modern initiative
4 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Syllabus
process in which the people’s legislative power is coextensive with the
state legislature’s authority, but the invention of the initiative was in
full harmony with the Constitution’s conception of the people as the
font of governmental power. It would thus be perverse to interpret
“Legislature” in the Elections Clause to exclude lawmaking by the
people, particularly when such lawmaking is intended to advance the
prospect that Members of Congress will in fact be “chosen . . . by the
People of the several States,” Art. I, §2. Pp. 30–33.
(4) Banning lawmaking by initiative to direct a State’s method
of apportioning congressional districts would not just stymie at-
tempts to curb gerrymandering. It would also cast doubt on numer-
ous other time, place, and manner regulations governing federal elec-
tions that States have adopted by the initiative method. As well, it
could endanger election provisions in state constitutions adopted by
conventions and ratified by voters at the ballot box, without involve-
ment or approval by “the Legislature.” Pp. 33–35.
997 F. Supp. 2d 1047, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which KENNEDY,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined.
THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.
Cite as: 576 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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]
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns an endeavor by Arizona voters to
address the problem of partisan gerrymandering—the
drawing of legislative district lines to subordinate adher­
ents of one political party and entrench a rival party in
power.1 “[P]artisan gerrymanders,” this Court has recog­
nized, “[are incompatible] with democratic principles.”
Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality
opinion); id., at 316 (KENNEDY, J., concurring in judg­
ment). Even so, the Court in Vieth did not grant relief on
the plaintiffs’ partisan gerrymander claim. The plurality
held the matter nonjusticiable. Id., at 281. JUSTICE
KENNEDY found no standard workable in that case, but
left open the possibility that a suitable standard might be
identified in later litigation. Id., at 317.
——————
1 The term “gerrymander” is a portmanteau of the last name of El-
bridge Gerry, the eighth Governor of Massachusetts, and the shape of
the electoral map he famously contorted for partisan gain, which
included one district shaped like a salamander. See E. Griffith, The
Rise and Development of the Gerrymander 16–19 (Arno ed. 1974).
2 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
In 2000, Arizona voters adopted an initiative, Proposi­
tion 106, aimed at “ending the practice of gerrymandering
and improving voter and candidate participation in elec­
tions.” App. 50. Proposition 106 amended Arizona’s Con­
stitution to remove redistricting authority from the Ari-
zona Legislature and vest that authority in an independent
commission, the Arizona Independent Redistricting Com­
mission (AIRC or Commission). After the 2010 census,
as after the 2000 census, the AIRC adopted redistrict-
ing maps for congressional as well as state legislative
districts.
The Arizona Legislature challenged the map the Com­
mission adopted in January 2012 for congressional dis­
tricts. Recognizing that the voters could control redistrict­
ing 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 “Elec­
tions 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 Con­
gress 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 [specifi­
cally 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 redistrict­
ing. The AIRC responded that, for Elections Clause pur­
poses, “the Legislature” is not confined to the elected
representatives; rather, the term encompasses all legisla­
tive authority conferred by the State Constitution, includ­
Cite as: 576 U. S. ____ (2015) 3
Opinion of the Court
ing 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 proc-
ess, 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.
I
A
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. Don-
ovan, & C. Tolbert eds. 1998). There were obvious pre-
cursors or analogues to the direct lawmaking operative
today in several States, notably, New England’s town hall
meetings and the submission of early state constitutions to
the people for ratification. See Lowell, The Referendum in
the United States, in The Initiative, Referendum and
Recall 126, 127 (W. Munro ed. 1912) (hereinafter IRR); W.
Dodd, The Revision and Amendment of State Constitu­
4 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
tions 64–67 (1910).2 But it 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 Initia­
tive, 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 Govern­
ment, in IRR 139, 142.
In 1898, South Dakota took the pathmarking step of
affirming in its Constitution the people’s power “directly
[to] control the making of all ordinary laws” by initiative
and referendum. Introductory, id., at 9. In 1902, Oregon
became the first State to adopt the initiative as a means,
——————
2 The Massachusetts Constitution of 1780 is illustrative of the under­
standing that the people’s authority could trump the state legislature’s.
Framed by a separate convention, it was submitted to the people for
ratification. That occurred after the legislature attempted to promul­
gate a Constitution it had written, an endeavor that drew opposition
from many Massachusetts towns. See J. Rakove, Original Meanings:
Politics and Ideas in the Making of the Constitution 96–101 (1996); G.
Wood, The Creation of the American Republic, 1776–1787, pp. 339–341
(1969).
Cite as: 576 U. S. ____ (2015) 5
Opinion of the Court
not only to enact ordinary laws, but also to amend the
State’s Constitution. J. Dinan, The American State Con­
stitutional Tradition 62 (2006). By 1920, the people in 19
States had reserved for themselves the power to initiate
ordinary lawmaking, and, in 13 States, the power to initi­
ate 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.3
B
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 pro-
visions. Id., at 14–16, 22. In the runup to Arizona’s ad­
mission 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 legisla­
tion” on equal footing with the representative legislative
body. Queen Creek Land & Cattle Corp. v. Yavapai Cty.
Bd. of Supervisors, 108 Ariz. 449, 451, 501 P. 2d 391, 393
(1972); Cave Creek Unified School Dist. v. Ducey, 233 Ariz.
1, 4, 308 P. 3d 1152, 1155 (2013) (“The legislature and
——————
3 The people’s sovereign right to incorporate themselves into a State’s
lawmaking apparatus, by reserving for themselves the power to adopt
laws and to veto measures passed by elected representatives, is one this
Court has ranked a nonjusticiable political matter. Pacific States
Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 (1912) (rejecting
challenge to referendum mounted under Article IV, §4’s undertaking by
the United States to “guarantee to every State in th[e] Union a Repub­
lican Form of Government”). But see New York v. United States, 505
U. S. 144, 185 (1992) (“[P]erhaps not all claims under the Guarantee
Clause present nonjusticiable political questions.”).
6 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
electorate share lawmaking power under Arizona’s system
of government.” (internal quotation marks omitted)). The
initiative, housed under the article of the Arizona Consti­
tution concerning the “Legislative Department” and the
section defining the State’s “legislative authority,” re­
serves 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.
C
Proposition 106, vesting redistricting authority in the
AIRC, was adopted by citizen initiative in 2000 against a
“background of recurring redistricting turmoil” in Arizona.
Cain, Redistricting Commissions: A Better Political Buf-
fer? 121 Yale L. J. 1808, 1831 (2012). 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 1830–1832.4
——————
4 From Arizona’s admission to the Union in 1912 to 1940, no congres­
sional districting occurred because Arizona had only one Member of
Congress. K. Martis, The Historical Atlas of United States Congres­
sional Districts, 1789–1983, p. 3 (1982) (Table 1). Court-ordered
congressional districting plans were in place from 1966 to 1970, and
from 1982 through 2000. See Klahr v. Williams, 313 F. Supp. 148(Ariz. 1970); Goddard v. Babbitt, 536 F. Supp. 538 (Ariz. 1982); Arizo-
nans for Fair Representation v. Symington, 828 F. Supp. 684 (Ariz.
1992); Norrander & Wendland, Redistricting in Arizona, in Reappor­
tionment and Redistricting in the West 177, 178–179 (G. Moncrief ed.
Cite as: 576 U. S. ____ (2015) 7
Opinion of the Court
Aimed at “ending the practice of gerrymandering and
improving voter and candidate participation in elections,”
App. 50, Proposition 106 amended the Arizona Constitu­
tion 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. The AIRC convenes after each census, establishes
final district boundaries, and certifies the new districts to
the Arizona Secretary of State. ¶¶16–17. The legislature
may submit nonbinding recommendations to the AIRC,
¶16, and is required to make necessary appropriations for
its operation, ¶18. The highest ranking officer and minor­
ity leader of each chamber of the legislature each select
one member of the AIRC from a list compiled by Arizona’s
Commission on Appellate Court Appointments. ¶¶4–7.
The four appointed members of the AIRC then choose,
from the same list, the fifth member, who chairs the
Commission. ¶8. A Commission’s tenure is confined to
one redistricting cycle; each member’s time in office “ex­
pire[s] upon the appointment of the first member of the
next redistricting commission.” ¶23.
Holders of, or candidates for, public office may not serve
on the AIRC, except candidates for or members of a school
board. ¶3. No more than two members of the Commission
may be members of the same political party, ibid., and the
presiding fifth member cannot be registered with any
party already represented on the Commission, ¶8. Subject
to the concurrence of two-thirds of the Arizona Senate,
AIRC members may be removed by the Arizona Governor
for gross misconduct, substantial neglect of duty, or inabil­
ity to discharge the duties of office. ¶10.5
——————
2011).
5 In the current climate of heightened partisanship, the AIRC has
encountered interference with its operations. In particular, its depend­
ence on the Arizona Legislature for funding, and the removal provision
have proved problematic. In 2011, when the AIRC proposed boundaries
8 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
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 com­
missions binding authority over redistricting.6 The Cali­
fornia Redistricting Commission, established by popular
initiative, develops redistricting plans which can be halted
by public referendum.7 Still other States have given com­
missions 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.9
Studies report that nonpartisan and bipartisan commis­
sions generally draw their maps in a timely fashion and
create districts both more competitive and more likely to
survive legal challenge. See Miller & Grofman, Redistrict­
ing Commissions in the Western United States, 3 U. C.
Irvine L. Rev. 637, 661, 663–664, 666 (2013).
D
On January 17, 2012, the AIRC approved final congres­
sional and state legislative maps based on the 2010 cen­
sus. See Arizona Independent Redistricting, Final Maps,
——————
the majority party did not like, the Governor of Arizona attempted to
remove the Commission’s independent chair. Her attempt was stopped
by the Arizona Supreme Court. See Cain, Redistricting Commissions:
A Better Political Buffer? 121 Yale L. J. 1808, 1835–1836 (2012) (citing
Mathis v. Brewer, No. CV–11–0313–SA (Ariz. 2011)); Arizona Inde-
pendent Redistricting Comm’n v. Brewer, 229 Ariz. 347, 275 P. 3d 1267(2012).
6 See Haw. Const., Art. IV, §2, and Haw. Rev. Stat. §§25–1 to 25–9
(2009 and 2013 Cum. Supp.); Idaho Const., Art. III, §2; Mont. Const.,
Art. V, §14; N. J. Const., Art. II, §2; Wash Const., Art. II, §43.
7 See Cal. Const., Art. XXI, §2; Cal. Govt. Code Ann. §§8251–8253.6
(West Supp. 2015).
8 See Iowa Code §§42.1–42.6 (2013); Ohio Rev. Code Ann. §103.51(Lexis 2014); Me. Const., Art. IV, pt. 3, §1–A.
9 See Conn. Const., Art. III, §6; Ind. Code §3–3–2–2 (2014).
Cite as: 576 U. S. ____ (2015) 9
Opinion of the Court
http://azredistricting.org/Maps/Final-Maps/default.asp (all
Internet materials as visited June 25, 2015, and included
in Clerk of Court’s case file). Less than four months later,
on June 6, 2012, the Arizona Legislature filed suit in the
United States District Court for the District of Arizona,
naming as defendants the AIRC, its five members, and the
Arizona Secretary of State. The Legislature sought both a
declaration that Proposition 106 and congressional maps
adopted by the AIRC are unconstitutional, and, as affirm­
ative relief, an injunction against use of AIRC maps for
any congressional election after the 2012 general election.
A three-judge District Court, convened pursuant to 28
U. S. C. §2284(a), unanimously denied a motion by the
AIRC to dismiss the suit for lack of standing. The Arizona
Legislature, the court determined, had “demonstrated that
its loss of redistricting power constitute[d] a [sufficiently]
concrete injury.” 997 F. Supp. 2d 1047, 1050 (2014). On
the merits, dividing two to one, the District Court granted
the AIRC’s motion to dismiss the complaint for failure to
state a claim. Decisions of this Court, the majority con­
cluded, “demonstrate that the word ‘Legislature’ in the
Elections Clause refers to the legislative process used in
[a] state, determined by that state’s own constitution and
laws.” Id., at 1054. As the “lawmaking power” in Arizona
“plainly includes the power to enact laws through initia­
tive,” the District Court held, the “Elections Clause per­
mits [Arizona’s] establishment and use” of the Commis­
sion. Id., at 1056. Judge Rosenblatt dissented in part.
Proposition 106, in his view, unconstitutionally denied
“the Legislature” of Arizona the “ability to have any out­
come-defining effect on the congressional redistricting
process.” Id., at 1058.
We postponed jurisdiction, and now affirm.
II
We turn first to the threshold question: Does the Ari­
10 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
zona Legislature have standing to bring this suit? Trained
on “whether the plaintiff is [a] proper party to bring [a
particular lawsuit,]” standing is “[o]ne element” of the
Constitution’s case-or-controversy limitation on federal
judicial authority, expressed in Article III of the Constitu­
tion. Raines v. Byrd, 521 U. S. 811, 818 (1997). “To qual­
ify as a party with standing to litigate,” the Arizona Legis­
lature “must show, first and foremost,” injury in the form
of “ ‘invasion of a legally protected interest’ that is ‘con­
crete and particularized’ and ‘actual or imminent.’ ” Ari-
zonans for Official English v. Arizona, 520 U. S. 43, 64
(1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S.
555, 560 (1992)). The Legislature’s injury also must be
“fairly traceable to the challenged action” and “redressable
by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568
U. S. ___, ___ (2013) (slip op., at 10) (internal quotation
marks omitted).
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 opportun-
ity 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 Legisla­
ture of its alleged prerogative to initiate redistricting.
That asserted deprivation would be remedied by a court
order enjoining the enforcement of Proposition 106. Al-
though 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
Cite as: 576 U. S. ____ (2015) 11
Opinion of the Court
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 redis­
tricting 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 Wild-
life, 504 U. S., at 560 (internal quotation marks omitted).
Two prescriptions of Arizona’s Constitution would ren­
der the Legislature’s passage of a competing plan and
submission of that plan to the Secretary of State unavail­
ing. Indeed, those actions would directly and immediately
conflict with the regime Arizona’s Constitution establishes.
Cf. Sporhase v. Nebraska ex rel. Douglas, 458 U. S.
941, 944, n. 2 (1982) (failure to apply for permit which
“would not have been granted” under existing law did not
deprive plaintiffs of standing to challenge permitting
regime). First, the Arizona Constitution instructs that the
Legislature “shall not have the power to adopt any meas­
ure 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 redis­
tricting plan to the Secretary of State, Arizona’s Constitu­
tion requires the Secretary to implement that plan and no
other. See Art. IV, pt. 2, §1(17); Arizona Minority Coali-
tion for Fair Redistricting v. Arizona Independent Redis-
12 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
tricting 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 con­
ducting 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.
Raines v. Byrd, 521 U. S. 811 (1997), does not aid
AIRC’s argument that there is no standing here. In
Raines, this Court held that six individual Members of
Congress lacked standing to challenge the Line Item Veto
Act. Id., at 813–814, 829–830 (holding specifically and
only that “individual members of Congress [lack] Article
III standing”). The Act, which gave the President author-
ity to cancel certain spending and tax benefit measures
after signing them into law, allegedly diluted the efficacy
of the Congressmembers’ votes. Id., at 815–817. The
“institutional injury” at issue, we reasoned, scarcely ze­
roed in on any individual Member. Id., at 821. “[W]idely
dispersed,” the alleged injury “necessarily [impacted] all
Members of Congress and both Houses . . . equally.” Id.,
at 829, 821. None of the plaintiffs, therefore, could tena­
bly claim a “personal stake” in the suit. Id., at 830.
In concluding that the individual Members lacked
standing, the Court “attach[ed] some importance to the
fact that [the Raines plaintiffs had] not been authorized to
represent their respective Houses of Congress.” Id., at
829. “[I]ndeed,” the Court observed, “both houses actively
oppose[d] their suit.” Ibid. Having failed to prevail in
their own Houses, the suitors could not repair to the Judi­
ciary to complain. The Arizona Legislature, in contrast, is
an institutional plaintiff asserting an institutional injury,
and it commenced this action after authorizing votes in
both of its chambers, App. 26–27, 46. That “different . . .
circumstanc[e],” 521 U. S., at 830, was not sub judice in
Cite as: 576 U. S. ____ (2015) 13
Opinion of the Court
Raines.10
Closer to the mark is this Court’s decision in Coleman v.
Miller, 307 U. S. 433 (1939). There, plaintiffs were 20 (of
40) Kansas State Senators, whose votes “would have been
sufficient to defeat [a] resolution ratifying [a] proposed
[federal] constitutional amendment.” Id., at 446.11 We
held they had standing to challenge, as impermissible
under Article V of the Federal Constitution, the State
Lieutenant Governor’s tie-breaking vote for the amend­
——————
10Massachusetts v. Mellon, 262 U. S. 447 (1923), featured in JUSTICE
SCALIA’s dissent, post, at 4, bears little resemblance to this case. There,
the Court unanimously found that Massachusetts lacked standing to
sue the Secretary of the Treasury on a claim that a federal grant
program exceeded Congress’ Article I powers and thus violated the
Tenth Amendment. Id., at 480. If suing on its own behalf, the Court
reasoned, Massachusetts’ claim involved no “quasi-sovereign rights
actually invaded or threatened.” Id., at 485. As parens patriae, the
Court stated: “[I]t is no part of [Massachusetts’] duty or power to
enforce [its citizens’] rights in respect of their relations with the Federal
Government. In that field it is the United States, and not the State,
which represents them as parens patriae.” Id., at 485–486. As astutely
observed, moreover: “The cases on the standing of states to sue the
federal government seem to depend on the kind of claim that the state
advances. The decisions . . . are hard to reconcile.” R. Fallon, J. Man­
ning, D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal
Courts and the Federal System 263–266 (6th ed. 2009) (comparing
Mellon with South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966)
(rejecting on the merits the claim that the Voting Rights Act of 1965
invaded reserved powers of the States to determine voter qualifications
and regulate elections), Nebraska v. Wyoming, 515 U. S. 1, 20 (1995)
(recognizing that Wyoming could bring suit to vindicate the State’s
“quasi-sovereign” interests in the physical environment within its
domain (emphasis deleted; internal quotation marks omitted)), and
Massachusetts v. EPA, 549 U. S. 497, 520 (2007) (maintaining
that Massachusetts “is entitled to special solicitude in our standing
analysis”)).
11 Coleman concerned the proposed Child Labor Amendment, which
provided that “Congress shall have power to limit, regulate, and pro-
hibit the labor of persons under eighteen years of age.” 307 U. S., at
435, n. 1 (internal quotation marks omitted).
14 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
ment. Ibid. 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 823.12 Our conclusion that the Arizona Legis­
lature has standing fits that bill. Proposition 106, to-
gether with the Arizona Constitution’s ban on efforts to un­
dermine 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 823–824.13
This dispute, in short, “will be resolved . . . in a concrete
factual context conducive to a realistic appreciation of the
consequences of judicial action.” Valley Forge Christian
College v. Americans United for Separation of Church and
State, Inc., 454 U. S. 464, 472 (1982).14 Accordingly, we
——————
12 The case before us does not touch or concern the question whether
Congress has standing to bring a suit against the President. There is
no federal analogue to Arizona’s initiative power, and a suit between
Congress and the President would raise separation-of-powers concerns
absent here. The Court’s standing analysis, we have noted, has been
“especially rigorous when reaching the merits of the dispute would force
[the Court] to decide whether an action taken by one of the other two
branches of the Federal Government was unconstitutional.” Raines v.
Byrd, 521 U. S. 811, 819–820 (1997).
13 In an endeavor to wish away Coleman, JUSTICE SCALIA, in dissent,
suggests the case may have been “a 4-to-4 standoff.” Post, at 5. He
overlooks that Chief Justice Hughes’ opinion, announced by Justice
Stone, was styled “Opinion of the Court.” 307 U. S., at 435. Describing
Coleman, the Court wrote in Raines: “By a vote of 5–4, we held that
[the 20 Kansas Senators who voted against ratification of a proposed
federal constitutional amendment] had standing.” 521 U. S., at 822.
For opinions recognizing the precedential weight of Coleman, see Baker
v. Carr, 369 U. S. 186, 208 (1962); United States v. Windsor, 570 U. S.
___, ___ (2013) (ALITO, J., dissenting) (slip op., at 4–5).
14 Curiously, JUSTICE SCALIA, dissenting on standing, berates the
Court for “treading upon the powers of state legislatures.” Post, at 6.
Cite as: 576 U. S. ____ (2015) 15
Opinion of the Court
proceed to the merits.15
III
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 Elec­
tions 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 pro­
vided 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 redis­
tricting procedures].”
Before focusing directly on the statute and constitutional
prescriptions in point, we summarize this Court’s prece­
dent relating to appropriate state decisionmakers for
redistricting purposes. Three decisions compose the rele­
vant 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).
A
Davis v. Hildebrant involved an amendment to the
Constitution of Ohio vesting in the people the right, exer­
cisable by referendum, to approve or disapprove by popu­
lar vote any law enacted by the State’s legislature. A 1915
Act redistricting the State for the purpose of congressional
——————
He forgets that the party invoking federal-court jurisdiction in this
case, and inviting our review, is the Arizona State Legislature.
15 JUSTICE THOMAS, on the way to deciding that the Arizona Legisla­
ture lacks standing, first addresses the merits. In so doing, he over­
looks that, in the cases he features, it was entirely immaterial whether
the law involved was adopted by a representative body or by the people,
through exercise of the initiative.
16 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
elections had been submitted to a popular vote, resulting
in disapproval of the legislature’s measure. State election
officials asked the State’s Supreme Court to declare the
referendum void. That court rejected the request, holding
that the referendum authorized by Ohio’s Constitution,
“was a part of the legislative power of the State,” and
“nothing in [federal statutory law] or in [the Elections
Clause] operated to the contrary.” 241 U. S., at 567. This
Court affirmed the Ohio Supreme Court’s judgment. In
upholding the state court’s decision, we recognized that
the referendum was “part of the legislative power” in Ohio,
ibid., legitimately exercised by the people to disapprove
the legislation creating congressional districts. For redis­
tricting purposes, Hildebrant thus established, “the Leg-
islature” did not mean the representative body alone.
Rather, the word encompassed a veto power lodged in the
people. See id., at 569 (Elections Clause does not bar
“treating the referendum as part of the legislative power
for the purpose of apportionment, where so ordained by
the state constitutions and laws”).
Hawke v. Smith involved the Eighteenth Amendment to
the Federal Constitution. Ohio’s Legislature had ratified
the Amendment, and a referendum on that ratification
was at issue. Reversing the Ohio Supreme Court’s deci­
sion upholding the referendum, we held that “ratification
by a State of a constitutional amendment is not an act of
legislation within the proper sense of the word.” 253 U. S.,
at 229. Instead, Article V governing ratification had
lodged in “the legislatures of three-fourths of the several
States” sole authority to assent to a proposed amendment.
Id., at 226. The Court contrasted the ratifying function,
exercisable exclusively by a State’s legislature, with “the
ordinary business of legislation.” Id., at 229. Davis v.
Hildebrant, the Court explained, involved the enactment
of legislation, i.e., a redistricting plan, and properly held
that “the referendum [was] part of the legislative author-
Cite as: 576 U. S. ____ (2015) 17
Opinion of the Court
ity of the State for [that] purpose.” 253 U. S., at 230.
Smiley v. Holm raised the question whether legislation
purporting to redistrict Minnesota for congressional elec­
tions was subject to the Governor’s veto. The Minnesota
Supreme Court had held that the Elections Clause placed
redistricting authority exclusively in the hands of the
State’s legislature, leaving no role for the Governor. We
reversed that determination and held, for the purpose at
hand, Minnesota’s legislative authority includes not just
the two houses of the legislature; it includes, in addition, a
make-or-break role for the Governor. In holding that the
Governor’s veto counted, we distinguished instances in
which the Constitution calls upon state legislatures to
exercise a function other than lawmaking. State legisla­
tures, we pointed out, performed an “electoral” function “in
the choice of United States Senators under Article I, sec­
tion 3, prior to the adoption of the Seventeenth Amend­
ment,”16 a “ratifying” function for “proposed amendments
to the Constitution under Article V,” as explained in
Hawke v. Smith, and a “consenting” function “in relation
to the acquisition of lands by the United States under
Article I, section 8, paragraph 17.” 285 U. S., at 365–366.
In contrast to those other functions, we observed, redis­
tricting “involves lawmaking in its essential features and
most important aspect.” Id., at 366. Lawmaking, we
further noted, ordinarily “must be in accordance with the
method which the State has prescribed for legislative
enactments.” Id., at 367. In Minnesota, the State’s Con­
stitution had made the Governor “part of the legislative
process.” Id., at 369. And the Elections Clause, we ex­
plained, respected the State’s choice to include the Gover­
nor in that process, although the Governor could play no
part when the Constitution assigned to “the Legislature” a
——————
16 The Seventeenth Amendment provided for election of Senators “by
the people” of each State.
18 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
ratifying, electoral, or consenting function. Nothing in the
Elections Clause, we said, “attempt[ed] to endow the
legislature of the State with power to enact laws in any
manner other than that in which the constitution of the
State ha[d] provided that laws shall be enacted.” Id., at
368.
THE CHIEF JUSTICE, in dissent, features, indeed trum­
pets 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 interpret­
ing “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 ratify­
ing function. As we explained in Hawke, “the power to
legislate in the enactment of the laws of a State is derived
from the people of the State.” 253 U. S., at 230. Ratifica­
tion, however, “has its source in the Federal Constitution”
and is not “an act of legislation within the proper sense of
the word.” Id., at 229–230.
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 referen­
dum 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
Cite as: 576 U. S. ____ (2015) 19
Opinion of the Court
constitutional amendments, in contrast, “the Legislature”
has a different identity, one that excludes the referendum
and the Governor’s veto. Hawke, see supra, at 16.17
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 in­
clude the referendum and the Governor’s veto. The exer­
cise 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.
B
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 congres­
sional districts. See supra, at 15.18
From 1862 through 1901, the decennial congressional
apportionment Acts provided that a State would be re­
——————
17 The list of constitutional provisions in which the word “legislature”
appears, appended to THE CHIEF JUSTICE’s opinion, post, at 28–32, is
illustrative of the variety of functions state legislatures can be called
upon to exercise. For example, Art. I, §2, cl. 1, superseded by the
Seventeenth Amendment, assigned an “electoral” function. See Smiley,
285 U. S., at 365. Article I, §3, cl. 2, assigns an “appointive” function.
Article I, §8, cl. 17, assigns a “consenting” function, see Smiley, 285
U. S., at 366, as does Art. IV, §3, cl. 1. “[R]atifying” functions are
assigned in Art. V, Amdt. 18, §3, Amdt. 20, §6, and Amdt. 22, §2. See
Hawke, 253 U. S., at 229. But Art. I, §4, cl. 1, unquestionably calls for
the exercise of lawmaking authority. That authority can be carried out
by a representative body, but if a State so chooses, legislative authority
can also be lodged in the people themselves. See infra, at 24–35.
18 The AIRC referenced §2a(c) in briefing below, see Motion to Dis­
miss 8–9, and Response to Plaintiff’s Motion for Preliminary Injunction
12–14, in No. 12–1211 (D Ariz.), and in its motion to dismiss or affirm
in this Court, see Motion to Dismiss or Affirm 28–31.
20 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
quired to follow federally prescribed procedures for redis­
tricting unless “the legislature” of the State drew district
lines. E.g., Act of July 14, 1862, ch. 170, 12 Stat. 572; Act
of Jan. 16, 1901, ch. 93, §4, 31 Stat. 734. 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 (state­
ment 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 Repre­
sentatives increased, the State should use the Act’s de­
fault 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).19
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.
——————
19 The 1911 Act also required States to comply with certain federally
prescribed districting rules—namely, that Representatives be elected
“by districts composed of a contiguous and compact territory, and
containing as nearly as practicable an equal number of inhabitants,”
and that the districts “be equal to the number of Representatives to
which [the] State may be entitled in Congress, no district electing more
than one Representative.” Act of Aug. 8, 1911, ch. 5, §§3–4, 37 Stat. 14.
When a State’s apportionment of Representatives remained constant,
the Act directed the State to continue using its pre-existing districts
“until [the] State shall be redistricted as herein prescribed.” See §4,
ibid. The 1911 Act did not address redistricting in the event a State’s
apportionment of Representatives decreased, likely because no State
faced a decrease following the 1910 census.
Cite as: 576 U. S. ____ (2015) 21
Opinion of the Court
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 [redistrict­
ing] legislation by referendum or by initiative.” 47 Cong.
Rec. 3436 (statement of Sen. Burton). In any event, pro­
ponents 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 regula­
tions.” 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 initia­
tive, 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 con­
gressional-redistricting procedures operative only if the
22 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
State, “after any apportionment,” had not redistricted “in
the manner provided by the law thereof.” The 1941 provi­
sion, 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.20
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 pro­
vided by [state] law”—had “become (because of postenact­
ment decisions of this Court) in virtually all situations
plainly unconstitutional.” Branch v. Smith, 538 U. S. 254,
273–274 (2003) (plurality opinion). Concretely, the default
procedures specified in §2a(c)(1)–(4) contemplate that a
State would continue to use pre-existing districts following
a new census. The one-person, one-vote principle an­
nounced in Wesberry v. Sanders, 376 U. S. 1 (1964), how­
ever, would bar those procedures, except in the “unlikely”
event that “the decennial census makes no districting
change constitutionally necessary,” Branch, 538 U. S., at
273 (plurality opinion).
Constitutional infirmity in §2a(c)(1)–(4)’s default proce­
dures, however, does not bear on the question whether a
State has been “redistricted in the manner provided by
[state] law.”21 As just observed, Congress expressly di­
——————
20 Because a State is required to comply with the Federal Constitu­
tion, the Voting Rights Act, and other federal laws when it draws and
implements its district map, 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.
21 The plurality in Branch v. Smith, 538 U. S. 254, 273 (2003), consid­
Cite as: 576 U. S. ____ (2015) 23
Opinion of the Court
rected that when a State has been “redistricted in the
manner provided by [state] law”—whether by the legisla­
ture, court decree (see id., at 274), or a commission estab­
lished by the people’s exercise of the initiative—the result­
ing districts are the ones that presumptively will be used
to elect Representatives.22
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 “dis­
tricts for federal elections”). The Arizona Legislature
urges that the first part of the Elections Clause, vesting
power to regulate congressional elections in State “Legis­
lature[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.
——————
ered the question whether §2a(c) had been repealed by implication and
stated, “where what it prescribes is constitutional,” the provision
“continues to apply.”
22 THE CHIEF JUSTICE, in dissent, insists that §2a(c) and its precursor,
the 1911 Act, have nothing to do with this case. Post, at 20–21, 23.
Undeniably, however, it was the very purpose of the measures to
recognize the legislative authority each State has to determine its own
redistricting regime.
24 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
C
In accord with the District Court, see supra, at 9, we
hold that the Elections Clause permits the people of Ari­
zona to provide for redistricting by independent commis­
sion. 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 congres­
sional districts? The history and purpose of the Clause
weigh heavily against such preclusion, as does the animat­
ing principle of our Constitution that the people them­
selves are the originating source of all the powers of
government.
We note, preliminarily, that dictionaries, even those in
circulation during the founding era, capaciously define the
word “legislature.” Samuel Johnson defined “legislature”
simply as “[t]he power that makes laws.” 2 A Dictionary
of the English Language (1st ed. 1755); ibid. (6th ed.
1785); ibid. (10th ed. 1792); ibid. (12th ed. 1802). Thomas
Sheridan’s dictionary defined “legislature” exactly as Dr.
Johnson did: “The power that makes laws.” 2 A Complete
Dictionary of the English Language (4th ed. 1797). Noah
Webster defined the term precisely that way as well.
Compendious Dictionary of the English Language 174
(1806). And Nathan Bailey similarly defined “legislature”
as “the Authority of making Laws, or Power which makes
them.” An Universal Etymological English Dictionary
(20th ed. 1763).23
——————
23 Illustrative of an embracive comprehension of the word “legisla­
ture,” Charles Pinckney explained at South Carolina’s ratifying conven­
tion that America is “[a] republic, where the people at large, either
collectively or by representation, form the legislature.” 4 Debates on
the Federal Constitution 328 (J. Elliot 2d ed. 1863). Participants in the
debates over the Elections Clause used the word “legislature” inter­
changeably with “state” and “state government.” See Brief for Brennan
Cite as: 576 U. S. ____ (2015) 25
Opinion of the Court
As to the “power that makes laws” in Arizona, initia­
tives 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 amend­
ments at the polls, independently of the legislature.”). See
also Eastlake v. Forest City Enterprises, Inc., 426 U. S.
668, 672 (1976) (“In establishing legislative bodies, the
people can reserve to themselves power to deal directly
with matters which might otherwise be assigned to the
legislature.”). As well in Arizona, the people may delegate
their legislative authority over redistricting to an inde­
pendent 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 estab­
lish a commission to attend to redistricting, counsel for
appellant responded yes, state legislatures may delegate
their authority to a commission, subject to their preroga­
tive to reclaim the authority for themselves).
1
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)).
——————
Center for Justice at N. Y. U. School of Law as Amicus Curiae 6–7.
26 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
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 Legis­
latures had a favorite measure to carry, they would take
care so to mould their regulations as to favor the candi­
dates they wished to succeed.” 2 Records of the Federal
Convention 241 (M. Farrand rev. 1966). Madison spoke in
response to a motion by South Carolina’s delegates to
strike out the federal power. Those delegates so moved
because South Carolina’s coastal elite had malapportioned
their legislature, and wanted to retain the ability to do so.
See J. Rakove, Original Meanings: Politics and Ideas in
the Making of the Constitution 223–224 (1996). 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.
Arguments in support of congressional control under the
Elections Clause were reiterated in the public debate over
ratification. Theophilus Parsons, a delegate at the Massa­
chusetts ratifying convention, warned that “when faction
and party spirit run high,” a legislature might take actions
like “mak[ing] an unequal and partial division of the
states into districts for the election of representatives.”
Debate in Massachusetts Ratifying Convention (16–17, 21
Jan. 1788), in 2 The Founders’ Constitution 256 (P. Kur­
land & R. Lerner eds. 1987). Timothy Pickering of Massa­
chusetts similarly urged that the Clause was necessary
because “the State governments may abuse their power,
and regulate . . . elections in such manner as would be
highly inconvenient to the people.” Letter to Charles
Tillinghast (24 Dec. 1787), in id., at 253. He described the
Clause as a way to “ensure to the people their rights of
election.” Ibid.
Cite as: 576 U. S. ____ (2015) 27
Opinion of the Court
While attention focused on potential abuses by state-
level politicians, and the consequent need for congres-
sional oversight, the legislative processes by which the States
could exercise their initiating role in regulating congres­
sional elections occasioned no debate. That is hardly
surprising. Recall that when the Constitution was com­
posed in Philadelphia and later ratified, the people’s legis­
lative prerogatives—the initiative and the referendum—
were not yet in our democracy’s arsenal. See supra, at 3–
5. The Elections Clause, however, is not reasonably read
to disarm States from adopting modes of legislation that
place the lead rein in the people’s hands.24
2
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 Federal­
ist No. 43, at 272 (J. Madison) (“Whenever the States may
choose to substitute other republican forms, they have a
——————
24 THE CHIEF JUSTICE, in dissent, cites U. S. Term Limits, Inc. v.
Thornton, 514 U. S. 779 (1995), as an important precedent we overlook.
Post, at 24–25. There, we held that state-imposed term limits on
candidates for the House and Senate violated the Clauses of the Consti­
tution setting forth qualifications for membership in Congress, Art. I,
§2, cl. 2, and Art. I, §3, cl. 3. We did so for a reason entirely harmoni­
ous with today’s decision. Adding state-imposed limits to the qualifica­
tions set forth in the Constitution, the Court wrote, would be “contrary
to the ‘fundamental principle of our representative democracy,’ . . . that
‘the people should choose whom they please to govern them.’ ” 514
U. S., at 783 (quoting Powell v. McCormack, 395 U. S. 486, 547 (1969)).
28 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
right to do so.”). “Through the structure of its govern­
ment, 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 prob­
lems.” Oregon v. Ice, 555 U. S. 160, 171 (2009); see United
States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J.,
concurring) (“[T]he States may perform their role as lab­
oratories for experimentation to devise various solutions
where the best solution is far from clear.”); New State Ice
Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J.,
dissenting) (“It is one of the happy incidents of the federal
system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the coun­
try.”). 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. See
Cite as: 576 U. S. ____ (2015) 29
Opinion of the Court
Shiel, H. R. Misc. Doc. No. 57, at 349–352 (concluding that
Oregon’s Constitution prevailed over any conflicting leg-
islative measure setting the date for a congressional
election).
THE CHIEF JUSTICE, in dissent, maintains that, under
the Elections Clause, the state legislature can trump any
initiative-introduced constitutional provision regulating
federal elections. He extracts support for this position
from Baldwin v. Trowbridge, 2 Bartlett Contested Election
Cases, H. R. Misc. Doc. No. 152, 41st Cong., 2d Sess., 46–
47 (1866). See post, at 15–16. There, Michigan voters had
amended the State Constitution to require votes to be cast
within a resident’s township or ward. The Michigan Leg­
islature, however, passed a law permitting soldiers to vote
in other locations. One candidate would win if the State
Constitution’s requirement controlled; his opponent would
prevail under the Michigan Legislature’s prescription.
The House Elections Committee, in a divided vote, ruled
that, under the Elections Clause, the Michigan Legisla­
ture had the paramount power.
As the minority report in Baldwin pointed out, however,
the Supreme Court of Michigan had reached the opposite
conclusion, holding, as courts generally do, that state
legislation in direct conflict with the State’s constitution is
void. Baldwin, H. R. Misc. Doc. No. 152, at 50. The
Baldwin majority’s ruling, furthermore, appears in ten­
sion with the Election Committee’s unanimous decision in
Shiel just five years earlier. (The Committee, we repeat,
“ha[d] no doubt that the constitution of the State ha[d]
fixed, beyond the control of the legislature, the time for
holding [a congressional] election.” Shiel, H. R. Misc. Doc.
No. 57, at 351.) Finally, it was perhaps not entirely acci­
dental that the candidate the Committee declared winner
in Baldwin belonged to the same political party as all but
one member of the House Committee majority responsible
for the decision. See U. S. House of Representatives Con­
30 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
gress Profiles: 39th Congress (1865–1867), http://
history . house .gov / Congressional-Overview / Profiles/39th/;
Biographical Directory of the United States Cong-
ress: Trowbridge, Rowland Ebenezer (1821–1881). Cf.
Cain, 121 Yale L. J., at 1817 (identifying legislative
conflict of interest as the problem independent re-
districting commissions aimed to check). In short, Bald-
win is not a disposition that should attract this Court’s
reliance.
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 Elec­
tions Clause is not sensibly read to subject States to that
deprivation.25
3
The Framers may not have imagined the modern initia­
tive process in which the people of a State exercise legisla­
tive power coextensive with the authority of an institu­
tional 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,
——————
25 A State may choose to regulate state and national elections differ­
ently, which is its prerogative under the Clause. E.g., Ind. Code §3–3–
2–2 (creating backup commission for congressional but not state legis­
lative districts).
Cite as: 576 U. S. ____ (2015) 31
Opinion of the Court
but that those intrusted with it should be kept in depend­
ence on the people.” Id., No. 37, at 223.
The people’s ultimate sovereignty had been expressed by
John Locke in 1690, a near century before the Constitu­
tion’s formation:
“[T]he Legislative being only a Fiduciary Power to act
for certain ends, there remains still in the People a
Supream Power to remove or alter the Legislative,
when they find the Legislative act contrary to the
trust reposed in them. For all Power given with trust
for the attaining an end, being limited by that end,
whenever that end is manifestly neglected, or op­
posed, the trust must necessarily be forfeited, and the
Power devolve into the hands of those that gave it,
who may place it anew where they shall think best for
their safety and security.” Two Treatises of Govern­
ment §149, p. 385 (P. Laslett ed. 1964).
Our Declaration of Independence, ¶2, drew from 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 prin­
ciple 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 Fed­
eral 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.
32 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
THE CHIEF JUSTICE, in dissent, suggests that independ­
ent 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 Inde-
pendent 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 Commis­
sion.” 993 F. Supp. 2d, at 1080. Deviations from the one-
person, one-vote principle, the per curiam opinion ex­
plained 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 concur­
ring 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 considera­
tion 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 ex­
pressed views the majority roundly rejected.
Independent redistricting commissions, it is true, “have
not eliminated the inevitable partisan suspicions associ-
ated with political line-drawing.” Cain, 121 Yale L. J., at
Cite as: 576 U. S. ____ (2015) 33
Opinion of the Court
1808. But “they have succeeded to a great degree [in
limiting the conflict of interest implicit in legislative con­
trol over redistricting].” Ibid. They thus impede legisla­
tors from choosing their voters instead of facilitating the
voters’ choice of their representatives.
4
Banning lawmaking by initiative to direct a State’s
method of apportioning congressional districts would do
more than stymie attempts to curb partisan gerrymander­
ing, 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 initia­
tive to install a host of regulations governing the “Times,
Places and Manner” of holding federal elections. Art. I, §4.
For example, the people of California provided for perma­
nent voter registration, specifying that “no amendment by
the Legislature shall provide for a general biennial or
other periodic reregistration of voters.” Cal. Elec. Code
Ann. §2123 (West 2003). The people of Ohio banned bal­
lots providing for straight-ticket voting along party lines.
Ohio Const., Art. V, §2a. The people of Oregon shortened
the deadline for voter registration to 20 days prior to an
election. Ore. Const., Art. II, §2. None of those measures
permit the state legislatures to override the people’s pre­
scriptions. 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 constitu­
tions were adopted by conventions and ratified by voters
34 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
Opinion of the Court
at the ballot box, without involvement or approval by “the
Legislature.”26 Core aspects of the electoral process regu­
lated by state constitutions include voting by “ballot” or
“secret ballot,”27 voter registration,28 absentee voting,29
vote counting,30 and victory thresholds.31 Again, the
States’ legislatures had no hand in making these laws and
may not alter or amend them.
The importance of direct democracy as a means to con­
trol election regulations extends beyond the particular
statutes and constitutional provisions installed by the
people rather than the States’ legislatures. The very
prospect of lawmaking by the people may influence the
legislature when it considers (or fails to consider) election-
related measures. See Persily & Anderson, Regulating
Democracy Through Democracy: The Use of Direct Legis­
——————
26 See App. to Brief for Appellees 11a–29a (collecting state constitu­
tional provisions governing elections). States’ constitutional conven­
tions are not simply past history predating the first election of state
legislatures. Louisiana, for example, held the most recent of its 12
constitutional conventions in 1992. J. Dinan, The American State
Constitutional Tradition 8–9 (2006) (Table 1–1). The State’s provision
for voting by “secret ballot” may be traced to the constitutional conven­
tion held by the State in 1812, see La. Const., Art. VI, §13, but was
most recently reenacted at the State’s 1974 constitutional convention,
see Art. XI, §2.
27 Madison called the decision “[w]hether the electors should vote by
ballot or vivâ voce” a quintessential subject of regulation under the
Elections Clause. 2 Records of the Federal Convention 240–241 (M.
Farrand rev. 1966).
28 Miss. Const., Art. XII, §249; N. C. Const., Art. VI, §3; Va. Const.,
Art. II, §2; W. Va. Const., Art. IV, §12; Wash. Const., Art. VI, §7.
29 E.g., Haw. Const., Art. II, §4; La. Const., Art XI, §2; N. D. Const.,
Art. II, §1; Pa. Const., Art. VII, §14.
30 E.g., Ark. Const., Art. III, §11 (ballots unlawfully not counted in the
first instance must be counted after election); La. Const., Art XI, §2 (all
ballots must be counted publicly).
31 E.g., Ariz. Const., Art. VII, §7 (setting plurality of votes as the
standard for victory in all elections, excluding runoffs); Mont. Const.,
Art. IV, §5 (same); Ore. Const., Art. II, §16 (same).
Cite as: 576 U. S. ____ (2015) 35
Opinion of the Court
lation in Election Law Reform, 78 S. Cal. L. Rev. 997,
1006–1008 (2005) (describing cases in which “indirect
pressure of the initiative process . . . was sufficient to spur
[state] legislature[s] to action”). Turning the coin, the
legislature’s responsiveness to the people its members
represent is hardly heightened when the representative
body can be confident that what it does will not be over­
turned or modified by the voters themselves.
* * *
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 di­
minish a State’s authority to determine its own lawmak­
ing 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 empow­
ers 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 regula­
tions 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 representa­
tives, not the other way around.” Berman, Managing
Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­
tions Clause does not hinder that endeavor.
For the reasons stated, the judgment of the United
States District Court for the District of Arizona is
Affirmed.
Cite as: 576 U. S. ____ (2015) 1
ROBERTS, C. J., dissenting
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 re-
sulted from an arduous, decades-long campaign in which
reformers across the country worked hard to garner ap-
proval 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 prece-
dents from both Congress and this Court. The Constitu-
2 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS, C. J., dissenting
tion contains seventeen provisions referring to the “Legis-
lature” 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 democ-
racy, 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 parti-
sanship in redistricting, this Court has no power to ger-
rymander the Constitution. I respectfully dissent.
I
The majority begins by discussing policy. I begin with
the Constitution. The Elections Clause provides:
“The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed
in each State by the Legislature thereof; but the Con-
gress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Sena-
tors.” Art. I, §4, cl. 1.
Cite as: 576 U. S. ____ (2015) 3
ROBERTS, C. J., dissenting
The Elections Clause both imposes a duty on States and
assigns that duty to a particular state actor: In the ab-
sence of a valid congressional directive to the contrary,
States must draw district lines for their federal represent-
atives. And that duty “shall” be carried out “in each State
by the Legislature thereof.”
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 con-
duct 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 au-
thority 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 major-
ity’s analysis is correct on that issue. But even giving the
Court the benefit of the doubt in that regard, the Commis-
sion is still unconstitutional. Both the Constitution and
our cases make clear that “the Legislature” in the Elec-
tions Clause is the representative body which makes the
laws of the people.
A
The majority devotes much of its analysis to establish-
ing 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
4 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
“processes” violate the United States Constitution. In a
conflict between the Arizona Constitution and the Elec-
tions 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 under-
standing 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
Cite as: 576 U. S. ____ (2015) 5
ROBERTS, C. J., dissenting
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 Consti-
tution.” 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).
6 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
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 mean-
ing of a word in the Constitution, there is no better dic-
tionary than the rest of the Constitution itself. Our prece-
dents 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., concur-
ring 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 refer-
ring to a State’s “Legislature.” See Appendix, infra.
Every one of those references is consistent with the under-
standing 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 Qual-
ifications 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 vacan-
Cite as: 576 U. S. ____ (2015) 7
ROBERTS, C. J., dissenting
cies in the United States Senate: “if Vacancies happen by
Resignation, or otherwise, during the Recess of the Legis-
lature of any State, the Executive thereof may make tem-
porary Appointments until the next Meeting of the Legis-
lature, 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 Legisla-
ture, 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 “con-
vened”—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 Representa-
tives 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 Constitu-
tion.” 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 indica-
——————
1 This provision was modified by the Seventeenth Amendment.
8 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
tions 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 Sena-
tors directly. His proposal was rejected ten to one. De-
bates 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 Constitu-
tion. 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 Con-
gress. 1 W. Hall, The History and Effect of the Seven-
teenth Amendment 183–184 (1936).
At no point in this process did anyone suggest that a
constitutional amendment was unnecessary because “Leg-
islature” 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
Cite as: 576 U. S. ____ (2015) 9
ROBERTS, C. J., dissenting
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 Elec-
tions Clause today—amending the text not through the
process provided by Article V, but by judicial decision.
The majority’s revision renders the Seventeenth Amend-
ment an 86-year waste of time, and singles out the Elec-
tions Clause as the only one of the Constitution’s seven-
teen 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 conven-
tional 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 Con-
stitution. Under Article I, §3, for example, “the Legisla-
ture” performed an “electoral” function by choosing Sena-
tors. The “Legislature” plays a “consenting” function
under Article I, §8, and Article IV, §3; a “ratifying” func-
tion under Article V; and a “lawmaking” function under
the Elections Clause. Ante, at 19, and n. 17. All true. The
10 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
majority, however, leaps from the premise that “the Legis-
lature” performs different functions under different provi-
sions 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 differ-
ence 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 vacan-
cies at the roadside motel, it could provide a lodging func-
tion. To a neighbor with a dead battery, it offers an elec-
tricity generation function. And yet, a person describing a
“car” engaged in any of these varied functions would un-
doubtedly 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 differ-
ent 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 func-
tions, 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
Cite as: 576 U. S. ____ (2015) 11
ROBERTS, C. J., dissenting
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 Legisla-
tur[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 “Legisla-
ture,” 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 infer-
ences from the Seventeenth Amendment and its predeces-
sor, 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 defini-
tion announced in Hawke. In Smiley, the petitioner ar-
gued—as the Commission does here—that “the Legisla-
12 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
ture” referred not just to “the two houses of the legisla-
ture” 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 iden-
tity” 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 Con-
stitutional Convention provided that “Each state shall
prescribe the time and manner of holding elections.” 1
——————
2 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.
Cite as: 576 U. S. ____ (2015) 13
ROBERTS, C. J., dissenting
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 con-
cerning them may, at any time, be altered by the legisla-
ture of the United States.” Id., at 225 (emphasis added).
The insertion of “the legislature” indicates that the Fram-
ers 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 pre-
scribed 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 legis-
lature 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 be-
cause 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). Alexan-
der Hamilton and others responded by raising the specter
of state legislatures—which he described as “local admin-
istrations”—deciding to “annihilate” the Federal Govern-
ment by “neglecting to provide for the choice of persons to
administer its affairs.” The Federalist No. 59, at 363. As
14 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
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 “animat-
ing 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 Elec-
tions 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 compro-
mise—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 (de-
scribing 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 prec-
edents 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 Representa-
Cite as: 576 U. S. ____ (2015) 15
ROBERTS, C. J., dissenting
tives 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 Leg-
islature, 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 fun-
damental 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 legisla-
ture is paramount.” Id., at 46; see California Democratic
Party v. Jones, 530 U. S. 567, 603, and n. 11 (2000) (Ste-
vens, J., dissenting) (relying on Baldwin for its conclusion
that “the Elections Clause’s specific reference to ‘the Legis-
lature’ is not so broad as to encompass the general ‘legisla-
tive power of this State’ ”).
16 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
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 di-
minish the force of Baldwin. The report cites a Michigan
Supreme Court precedent that allegedly reached a con-
trary result, but that case turned entirely on state constitu-
tional 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 in-
volved a constitutional provision with considerable simi-
larity 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 representa-
tives, could divide authority to appoint electors across
each of the State’s congressional districts. The Court
——————
3 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.
Cite as: 576 U. S. ____ (2015) 17
ROBERTS, C. J., dissenting
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 Elec-
tions Clause. In Ohio ex rel. Davis v. Hildebrant, 241
U. S. 565 (1916), the Ohio Legislature passed a congres-
sional 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, contend-
ing 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 ar-
gument 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 deci-
sion was to send the Ohio Legislature back to the drawing
board to do the redistricting.
In Smiley, the Minnesota Legislature passed a law
18 ARIZONA STATE LEGISLATURE v. ARIZONA
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ROBERTS, C. J., dissenting
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 legisla-
ture” but to “the entire legislative power of the state . . .
however exercised.” This Court rejected that argument,
reiterating that the term “Legislature” meant “the repre-
sentative 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 major-
ity 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.
Cite as: 576 U. S. ____ (2015)
19
ROBERTS, C. J., dissenting
* * *
The constitutional text, structure, history, and prece-
dent 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 legisla-
ture 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 Seven-
teenth 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
The Court also issues an alternative holding that a
federal statute, 2 U. S. C. §2a(c), permits Arizona to vest
redistricting authority in the Commission. Ante, at 19–23.
The majority does not contend that this statutory holding
resolves the constitutional question presented, see ante, at
23, so its reading of Section 2a(c) is largely beside the
point. With respect, its statutory argument is also hard to
take seriously. Section 2a(c) does not apply to this case.
And even if it did, it would likely be unconstitutional.4
——————
4 Not surprisingly, Section 2a(c) was barely raised below and was not
addressed by the District Court. See ante, at 19, n. 18.
20 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS, C. J., dissenting
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) some-
how 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 redis-
tricted. 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
——————
5 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.
Cite as: 576 U. S. ____ (2015) 21
ROBERTS, C. J., dissenting
rules “[u]ntil [it] is redistricted in the manner provided by
the law thereof,” when what he meant was “any redistrict-
ing 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 “unmis-
takably 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 com-
ply 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) im-
plausible 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
22 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS, C. J., dissenting
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 dele-
gate 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 author-
ity to a state entity other than the one in which the Elec-
tions 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 Elec-
tions 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
Cite as: 576 U. S. ____ (2015) 23
ROBERTS, C. J., dissenting
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 interpreta-
tion 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. Sec-
tion 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 govern-
ment was to take.” South Carolina v. United States, 199
24 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS, C. J., dissenting
U. S. 437, 449 (1905). We ought to give effect to the words
they used.
The majority today shows greater concern about redis-
tricting practices than about the meaning of the Constitu-
tion. 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 Constitu-
tion to invalidate state laws with policy objectives remi-
niscent 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
——————
6 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
Cite as: 576 U. S. ____ (2015) 25
ROBERTS, C. J., dissenting
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 repre-
sentatives chosen in those elections will then be responsi-
ble 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, unac-
countable institution that permanently and totally dis-
places 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
——————
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.
26 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS, C. J., dissenting
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 linedrawing deci-
sions 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 Republi-
can 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 re-
flects 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 consti-
Cite as: 576 U. S. ____ (2015) 27
ROBERTS, C. J., dissenting
tutional 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 pre-
scribed 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.
28 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS
Appendix , C. J., of
to opinion dissenting
ROBERTS, C. J.
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 assem-
bled 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 Legis-
lature of any State, the Executive thereof may make tem-
porary Appointments until the next Meeting of the Legis-
lature, 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 pre-
scribed 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
Cite as: 576 U. S. ____ (2015) 29
ROBERTS
Appendix , C. J., of
to opinion dissenting
ROBERTS, C. J.
Miles square) as may, by Cession of particular States, and
the Acceptance of Congress, become the Seat of the Gov-
ernment of the United States, and to exercise like Author-
ity over all Places purchased by the Consent of the Legisla-
ture of the State in which the Same shall be, for the Erec-
tion of Forts, Magazines, Arsenals, dock-Yards, and other
needful Buildings . . . .”
Art. II, §1, cl. 2: “Each State shall appoint, in such Man-
ner 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 Legisla-
tures of two thirds of the several States, shall call a Con-
vention for proposing Amendments, which, in either Case,
30 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS
Appendix , C. J., of
to opinion dissenting
ROBERTS, C. J.
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 Man-
ner 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 Legisla-
tures, 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)
Cite as: 576 U. S. ____ (2015) 31
ROBERTS
Appendix , C. J., of
to opinion dissenting
ROBERTS, C. J.
Amdt. 14, §3: “No person shall be a Senator or Repre-
sentative 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 sup-
port 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 qualifi-
cations requisite for electors of the most numerous branch
of the State legislatures.”
Amdt. 17, cl. 2: “When vacancies happen in the represen-
tation of any State in the Senate, the executive authority
of such State shall issue writs of election to fill such va-
cancies: Provided, That the legislature of any State may
empower the executive thereof to make temporary ap-
pointments 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 Constitu-
tion 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.)
32 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
ROBERTS
Appendix , C. J., of
to opinion dissenting
ROBERTS, C. J.
Amdt. 20, §6: “This article shall be inoperative unless it
shall have been ratified as an amendment to the Constitu-
tion 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 Constitu-
tion 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.”
Cite as: 576 U. S. ____ (2015) 1
SCALIA, J., dissenting
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]
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
dissenting.
I do not believe that the question the Court answers is
properly before us. Disputes between governmental
branches or departments regarding the allocation of politi-
cal power do not in my view constitute “cases” or “contro-
versies” committed to our resolution by Art. III, §2, of the
Constitution.
What those who framed and ratified the Constitution
had in mind when they entrusted the “judicial Power” to a
separate and coequal branch of the Federal Government
was the judicial power they were familiar with—that
traditionally exercised by English and American courts.
The “cases” and “controversies” that those courts enter-
tained did not include suits between units of government
regarding their legitimate powers. The job of the courts
was, in Chief Justice Marshall’s words, “solely, to decide
on the rights of individuals,” Marbury v. Madison, 1
Cranch 137, 170 (1803). Tocqueville considered this one
reason the new democracy could safely confer upon courts
the immense power to hold legislation unconstitutional:
“[B]y leaving it to private interest to censure the law,
and by intimately uniting the trial of the law with the
trial of an individual, legislation is protected from
2 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
SCALIA, J., dissenting
wanton assaults and from the daily aggressions of
party spirit. . . .
“I am inclined to believe this practice of the Ameri-
can courts to be at once most favorable to liberty and
to public order. If the judge could only attack the leg-
islator only openly and directly, he would sometimes
be afraid to oppose him; and at other times party spir-
it might encourage him to brave it at every turn. . . .
But the American judge is brought into the political
arena independently of his own will. He judges the
law only because he is obliged to judge a case. The po-
litical question that he is called upon to resolve is
connected with the interests of the parties, and he
cannot refuse to decide it without a denial of justice.”
A. de Tocqueville, Democracy in America 102-03 (P.
Bradley ed. 1948).
That doctrine of standing, that jurisdictional limitation
upon our powers, does not have as its purpose (as the
majority assumes) merely to assure that we will decide
disputes in concrete factual contexts that enable “realistic
appreciation of the consequences of judicial action,” ante,
at 14. To the contrary. “[T]he law of Art. III standing is
built on a single basic idea—the idea of separation of
powers.” Allen v. Wright, 468 U. S. 737, 752 (1984). It
keeps us minding our own business.
We consult history and judicial tradition to determine
whether a given “ ‘disput[e is] appropriately resolved
through the judicial process.’ ” Lujan v. Defenders of Wild-
life, 504 U. S. 555, 560 (1992) (internal quotation marks
omitted). What history and judicial tradition show is that
courts do not resolve direct disputes between two political
branches of the same government regarding their respec-
tive powers. Nearly every separation-of-powers case
presents questions like the ones in this case. But we have
never passed on a separation-of-powers question raised
Cite as: 576 U. S. ____ (2015) 3
SCALIA, J., dissenting
directly by a governmental subunit’s complaint. We have
always resolved those questions in the context of a private
lawsuit in which the claim or defense depends on the
constitutional validity of action by one of the governmen-
tal subunits that has caused a private party concrete
harm. That is why, for example, it took this Court over 50
years to rule upon the constitutionality of the Tenure of
Office Act, passed in 1867. If the law of standing had been
otherwise, “presumably President Wilson, or Presidents
Grant and Cleveland before him, would . . . have had
standing, and could have challenged the law preventing
the removal of a Presidential appointee without the con-
sent of Congress.” Raines v. Byrd, 521 U. S. 811, 828
(1997).
We do not have to look far back in the United States
Reports to find other separation-of-powers cases which, if
the Arizona Legislature’s theory of standing is correct,
took an awfully circuitous route to get here. In Zivotofsky
v. Kerry, ante, p. ___, the President could have sued for an
injunction against Congress’s attempted “direct usurpa-
tion” of his constitutionally-conferred authority to pro-
nounce on foreign relations. Or in Wellness Int’l Network,
Ltd. v. Sharif, 575 U. S. ___ (2015), a Federal District
Judge could have sought a declaratory judgment that a
bankruptcy court’s adjudicating a Stern claim improperly
usurped his constitutionally conferred authority to decide
cases and controversies. Or in NLRB v. Noel Canning,
573 U. S. ___ (2014), the Senate could have sued the Pres-
ident, claiming a direct usurpation of its prerogative to
advise on and consent to Presidential appointments. Each
of these cases involved the allocation of power to one or
more branches of a government; and we surely would have
dismissed suits arising in the hypothesized fashions.
We have affirmatively rejected arguments for jurisdic-
tion in cases like this one. For example, in Raines, 521
U. S., at 829–830, we refused to allow Members of Con-
4 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
SCALIA, J., dissenting
gress to challenge the Line Item Veto Act, which they
claimed “ ‘unconstitutionally expand[ed] the President’s
power’ ” and “ ‘alter[ed] the constitutional balance of pow-
ers between the Legislative and Executive Branches.’ ”
Id., at 816. In Massachusetts v. Mellon, 262 U. S. 447,
479–480 (1923), we refused to allow a State to pursue its
claim that a conditional congressional appropriation “con-
stitute[d] an effective means of inducing the States to
yield a portion of their sovereign rights.” (And Mellon
involved a contention that one government infringed upon
another government’s power—far closer to the traditional
party-versus-party lawsuit than is an intragovernmental
dispute.) We put it plainly: “In the last analysis, the
complaint of the plaintiff State is brought to the naked
contention that Congress has usurped the reserved powers
of the several States,” id., at 483—and because the State
could not show a discrete harm except the alleged usurpa-
tion of its powers, we refused to allow the State’s appeal.
The sole precedent the Court relies upon is Coleman v.
Miller, 307 U. S. 433 (1939). Coleman can be distin-
guished from the present case as readily as it was distin-
guished in Raines. In Raines, the accurate-in-fact (but
inconsequential-in-principle) distinction was that the
Senators in Coleman had their votes nullified, whereas the
Members of Congress claimed that their votes could merely
be rendered ineffective by a Presidential line-item veto.
Raines, supra, at 823–824. In the present case we could
make the accurate-in-fact distinction that in Coleman
individual legislators were found to have standing, whereas
here it is the governmental body, the Arizona Legisla-
ture, that seeks to bring suit. But the reality is that the
supposed holding of Coleman stands out like a sore thumb
from the rest of our jurisprudence, which denies standing
for intragovernmental disputes.
Coleman was a peculiar case that may well stand for
nothing. The opinion discussing and finding standing, and
Cite as: 576 U. S. ____ (2015) 5
SCALIA, J., dissenting
going on to affirm the Kansas Supreme Court, was written
by Chief Justice Hughes and announced by Justice Stone.
Justice Frankfurter, joined by three other Justices, held
there was no standing, and would have dismissed the
petition (leaving the judgment of the Kansas Supreme
Court in place). Justice Butler, joined by Justice McRey-
nolds, dissented (neither joining Hughes’s opinion nor
separately discussing standing) and would have reversed
the Kansas Supreme Court.
That adds up to two votes to affirm on the merits, two to
reverse on the merits (without discussing standing) and
four to dismiss for lack of standing. Justice Stanley Reed,
who was on the Court and apparently participated in the
case, is not mentioned in any of the opinions recorded in
the United States Reports. So, in order to find Coleman a
binding precedent on standing, rather than a 4-to-4 stand-
off, one must assume that Justice Reed voted with
Hughes. There is some reason to make that assumption:
The four Justices rejecting standing went on to discuss the
merits, because “the ruling of the Court just announced
removes from the case the question of petitioners’ standing
to sue.” 307 U. S., at 456 (Black, J., concurring). But then
again, if nine Justices participated, how could it be that on
one of the two issues in the case the Court was “equally
divided and therefore . . . expresse[d] no opinion”? Id., at
447.
A pretty shaky foundation for a significant precedential
ruling. Besides that, the two dissenters’ mere assumption
of standing—neither saying anything about the subject
nor joining Hughes’s opinion on the point—produces (if
you assume Reed joined Hughes) a majority for standing
but no majority opinion explaining why. And even under
the most generous assumptions, since the Court’s judg-
ment on the issue it resolved rested on the ground that
that issue presented a political question—which is itself a
rejection of jurisdiction, Zivotofsky v. Clinton, 566 U. S.
6 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
SCALIA, J., dissenting
___ (2012) (slip op., at 5)—Coleman’s discussion of the
additional jurisdictional issue of standing was quite super-
fluous and arguably nothing but dictum. The peculiar
decision in Coleman should be charitably ignored.
The Court asserts, quoting Raines, 521 U. S., at 819–
820, that the Court’s standing analysis has been “especially
rigorous when reaching the merits of the dispute would
force [the Court] to decide whether an action taken by one
of the other two branches of the Federal Government was
unconstitutional.” Ante, at 14, n. 12. The cases cited to
support this dictum fail to do so; they are merely cases
where a determination of unconstitutionality is avoided by
applying what there is no reason to believe is anything
other than normal standing requirements. It seems to me
utterly implausible that the Framers wanted federal
courts limited to traditional judicial cases only when they
were pronouncing upon the rights of Congress and the
President, and not when they were treading upon the
powers of state legislatures and executives. Quite to the
contrary, I think they would be all the more averse to
unprecedented judicial meddling by federal courts with
the branches of their state governments.
I would dismiss this case for want of jurisdiction.
* * *
Normally, having arrived at that conclusion, I would
express no opinion on the merits unless my vote was
necessary to enable the Court to produce a judgment. In
the present case, however, the majority’s resolution of the
merits question (“legislature” means “the people”) is so
outrageously wrong, so utterly devoid of textual or historic
support, so flatly in contradiction of prior Supreme Court
cases, so obviously the willful product of hostility to dis-
tricting by state legislatures, that I cannot avoid adding
my vote to the devastating dissent of the Chief Justice.
Cite as: 576 U. S. ____ (2015) 1
THOMAS, J., dissenting
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]
JUSTICE THOMAS, with whom JUSTICE SCALIA joins,
dissenting.
Reading today’s opinion, one would think the Court is a
great defender of direct democracy in the States. As it
reads “the Legislature” out of the Times, Places and Man-
ner Clause, U. S. Const., Art. I, §4, the majority offers a
paean to the ballot initiative. It speaks in glowing terms
of the “characteristic of our federal system that States
retain autonomy to establish their own governmental
processes.” Ante, at 27. And it urges “[d]eference to state
lawmaking” so that States may perform their vital func-
tion as “ ‘laboratories’ ”of democracy. Ante, at 28.
These sentiments are difficult to accept. The conduct of
the Court in so many other cases reveals a different atti-
tude toward the States in general and ballot initiatives in
particular. Just last week, in the antithesis of deference
to state lawmaking through direct democracy, the Court
cast aside state laws across the country—many of which
were enacted through ballot initiative—that reflected the
traditional definition of marriage. See Obergefell v. Hodges,
ante, p. ___.
This Court’s tradition of disdain for state ballot initia-
tives goes back quite a while. Two decades ago, it held
unconstitutional an Arkansas ballot initiative imposing
2 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
THOMAS, J., dissenting
term limits on that State’s Members of Congress, finding
“little significance” in the fact that such term limits were
adopted by popular referendum. U. S. Term Limits, Inc. v.
Thornton, 514 U. S. 779, 822, n. 32 (1995). One year later,
it held unconstitutional a ballot initiative that would have
prevented the enactment of laws under which “ ‘homosex-
ual, lesbian or bisexual orientation, conduct, practices or
relationships [would] constitute or otherwise be the basis
of . . . any minority status, quota preferences, protected
status or claim of discrimination.’ ” Romer v. Evans, 517
U. S. 620, 624 (1996). The Court neither gave deference to
state lawmaking nor said anything about the virtues of
direct democracy. It instead declared that the result of the
ballot initiative was an aberration—that “[i]t is not within
our constitutional tradition to enact laws of this sort.” Id.,
at 633. But if “constitutional tradition” is the measuring
stick, then it is hard to understand how the Court con-
dones a redistricting practice that was unheard of for
nearly 200 years after the ratification of the Constitution
and that conflicts with the express constitutional com-
mand that election laws “be prescribed in each State by
the Legislature thereof,” Art. I, §4.
The Court’s lack of respect for ballot initiatives is evi-
dent not only in what it has done, but in what it has failed
to do. Just this Term, the Court repeatedly refused to
review cases in which the Courts of Appeals had set aside
state laws passed through ballot initiative. See, e.g.,
County of Maricopa v. Lopez-Valenzuela, 575 U. S. ___
(2015) (THOMAS, J., dissenting from denial of certiorari)
(state constitutional amendment denying bail for illegal
aliens arrested in certain circumstances); Herbert v. Kitchen,
574 U. S. ___ (2014) (state constitutional amendment
retaining traditional definition of marriage); Smith v.
Bishop, 574 U. S. ___ (2014) (same); Rainey v. Bostic, 574
U. S. ___ (2014) (same); Walker v. Wolf, 574 U. S. ___
(2014) (same). It did so despite warnings that its indiffer-
Cite as: 576 U. S. ____ (2015) 3
THOMAS, J., dissenting
ence to such cases would “only embolden the lower courts
to reject state laws on questionable constitutional
grounds.” Lopez-Valenzuela, supra, at ___ (slip op., at 2).
And it refused to grant a stay pending appeal of a decision
purporting to require the State of Alabama to issue mar-
riage licenses to same-sex couples, even though Alabama’s
licensing laws had not been challenged in that case. See
Strange v. Searcy, 574 U. S. ___ (2015) (THOMAS, J., dis-
senting from denial of application for stay). In each deci-
sion, the cheers for direct democracy were conspicuously
absent.
Sometimes disapproval of ballot initiatives has been
even more blatant. Just last Term, one dissenting opinion
castigated the product of a state ballot initiative as “sty-
mieing the right of racial minorities to participate in the
political process.” Schuette v. BAMN, 572 U. S. ___, ___
(2014) (SOTOMAYOR, J., joined by GINSBURG, J., dissent-
ing) (slip op., at 1). It did not hail the ballot initiative as
the result of a “State’s empowerment of its people,” ante,
at 19, nor offer any deference to state lawmaking. In-
stead, it complained that “[t]he majority of Michigan
voters changed the rules in the middle of the game, recon-
figuring the existing political process . . . .” Schuette, 572
U. S., at ___ (slip op., at 4). And it criticized state ballot
initiatives as biased against racial minorities because such
minorities “face an especially uphill battle” in seeking the
passage of such initiatives. Id., at ___ (slip op., at 20).
How quickly the tune has changed.
And how striking that it changed here. The ballot initi-
ative in this case, unlike those that the Court has previ-
ously treated so dismissively, was unusually democracy-
reducing. It did not ask the people to approve a particular
redistricting plan through direct democracy, but instead to
take districting away from the people’s representatives
and give it to an unelected committee, thereby reducing
democratic control over the process in the future. The
4 ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N
THOMAS, J., dissenting
Court’s characterization of this as direct democracy at its
best is rather like praising a plebiscite in a “banana repub-
lic” that installs a strongman as President for Life. And
wrapping the analysis in a cloak of federalism does little
to conceal the flaws in the Court’s reasoning.
I would dispense with the faux federalism and would
instead treat the States in an evenhanded manner. That
means applying the Constitution as written. Although the
straightforward text of Article I, §4, prohibits redistricting
by an unelected, independent commission, Article III
limits our power to deciding cases or controversies. Be-
cause I agree with JUSTICE SCALIA that the Arizona Legis-
lature lacks Article III standing to assert an institutional
injury against another entity of state government, I would
dismiss its suit. I respectfully dissent.