Article One, Section Four of the Constitution (the Congressional Elections Clause) says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
The clause’s terms seem facially clear: state legislatures choose the time, place, and manner of elections for Senators and Representatives. But legislatures alone do not choose election schemes. Ballot measures, state courts, executive departments, and commissions all play a large role in determining how Americans cast their ballots.
This raises key questions of constitutional interpretation. Have states been violating the Congressional Elections Clause for years? Justices Thomas, Alito, and Gorsuch have questioned election rules made outside state legislative halls. Chief Justice Roberts and Justice Kavanaugh have suggested a more limited version of this doctrine. But no matter the version, the fundamental underpinnings of the doctrine are correct. It must be state legislatures, not courts, electorate, or commissions, that make federal election law within the states.
Early Beginnings – McPherson, Hildebrant, Hawke, Smiley
Scholars and judges have long debated the Constitutional meaning of “legislature.” When Michigan apportioned its 1892 presidential electors by Congressional district, the Court upheld such action in the first topical case, McPherson v. Blacker. The Court endorsed the ordinary meaning of “legislature.” It held that the Presidential Elections Clause vests the choice for how presidential electors are chosen in the “legislature” of the staten – and that meant the elected body of representatives. It said that the Constitution “recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.”
Fitting the direct-democracy trend of the time, Ohio began permitting ballot referendums to veto any state law in 1912. After Ohio voters rejected the 1915 Congressional districts, various plaintiffs sued to force the use of the disapproved maps. The Supreme Court held in Ohio ex. rel Davis v. Hildebrant that Ohio’s process was constitutional within the Congressional Elections Clause. It reasoned that legislative power was a state law question, and Ohio determined that it included the people. There was effectively not one Congressional Elections Clause to the Hildebrant court, but forty-eight.
Yet the Court seemingly changed course again four years later in Hawke v. Smith. In 1918, Ohio allowed voters the chance to overrule the state legislature’s approval of the 18th Amendment (Prohibition). Before the referendum occurred, plaintiffs sued, arguing that the power to ratify Constitutional amendments belonged solely to the elected body of representatives. The Court held in Hawke that federal Constitutional amendments could not be ratified or rejected by ballot measure. Article Five of the Constitution states that amendments are valid when “ratified by the legislatures of three-fourths of the several States.” The Court reasoned that the Framers would have referenced the people if they wanted to include them, and that “[t]he language of the article is plain, and admits of no doubt in its interpretation.” The Court most directly wrote:
The only question really for determination is: What did the framers of the Constitution mean in requiring ratification by “Legislatures”? That was not a term of uncertain meaning when incorporated into the Constitution. What it meant when it was adopted it still means today. A Legislature was then an elected representative body that made laws for the state.
The Court distinguished Hildebrant on the basis that “ratification by a State of a constitutional amendment is not an act of legislation within the proper sense of the word…but the expression of the assent of the State to a proposed amendment.” Because the legislature could not amend the proposed Constitutional amendment, they were not legislating. The Court held in Hawke that the “legislature” could not expand beyond the elected body of representatives to ratify Constitutional amendments, but could for ordinary legislation.
Hawke was not the end of the road on the Constitutional meaning of “legislature.” After Minnesota’s governor vetoed the 1932 congressional districts, the Secretary of State implemented them anyway on the theory that the Election Clause prohibited a gubernatorial veto. The Court held unanimously in Smiley v. Holm that the gubernatorial veto complied with the Congressional Elections Clause. The Court reasoned that “legislature” can take on multiple meanings within the Constitution based on the legislature’s function. In the context of the Congressional Elections Clause, it meant the ordinary law-making process of the state. This is because it found “no suggestion in the Federal constitutional provision of an attempt 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 has provided.” Subjecting Congressional districts to a gubernatorial veto was thus within Minnesota’s discretion.
Hildebrant, Hawke, and Smiley together hold that “legislature” refers to the elected body of representatives only when the legislature takes on a unique, non-legislative function.
Bush v. Gore
The Court confronted this confusing line of cases when it decided Bush v. Gore in 2000. Chief Justice Rehnquist embraced the idea that “legislature” in the Presidential Elections Clause means the state’s elected body of representatives. He would have ended the recount because the Florida Supreme Court’s order continuing it substantively changed Florida’s existing election law. Rehnquist observed that while a state court’s interpretation of its constitution is normally final, it raised, in this case, a federal constitutional question. This is because the Florida Supreme Court’s interpretation amounted to legislation. The majority opinion ignored this issue, while Justice Stevens and Ginsburg explicitly rejected the idea. Stevens would have read it as the Hildebrant and Smiley courts read the Congressional Elections Clause. Ginsburg argued that Rehnquist turned federalism on its head – inviting federal intrusion into state judiciaries.
Contemporary Issues – AIRC and the COVID Cases
While the issue of state legislatures faded to the background after 2000, the doctrine emerged again in the 2010s. Many states responded to concerns about gerrymandering by enacting “independent commissions” through both legislation and ballot measures. These commissions typically draw Congressional and legislative maps without legislative input. In addition, more aggressive state-level review of congressional and legislative maps has led court-appointed “special masters” drawing maps. These are usually professors or experts that draw maps at the direction of the state courts.
The Court in 2015 considered the issue of Congressional districts drawn by the ballot-created Arizona Independent Redistricting Commission. The Court ruled 5-4 that the Commission was constitutional within the framework of Hildrebant, Hawke, and Smiley. Justice Ruth Bader Ginsburg’s majority opinion held that because the electorate was part of the legislature under Arizona law, Hildebrant made it part of the legislature in the Congressional Elections Clause. Ginsburg reconciled the decision with Hawke by reasoning that ratifying a constitutional amendment is a unique, “ratifying” function that holds a special place in the constitutional structure. As such, the states can only act through the traditional legislature.
The state legislature question reappeared twice in 2020. Justice Kavanaugh approvingly cited Rehnquist’s concurrence from Bush v. Gore in a case about Wisconsin’s mail-ballot deadline. In particular, he endorsed the idea that a state court’s interpretation of its state constitution can create a federal question if it comes too close to making law. Justice Alito agreed in a similar case from Pennsylvania. He said
Most recently, the North Carolina Supreme Court struck down a map enacted by the GOP-controlled legislature. It appointed a special master to replace it. State Republicans appealed to the Supreme Court on the basis that those actions violated the Congressional Elections Clause. The Court denied the petition. But Justice Alito again noted that he believed the state court’s actions crossed the line. He wrote that it infringed on the legislature’s exclusive power to regulate federal elections. Justice Kavanaugh thought the Court should hear the case, but only when there is more time before the election.
While the Court has not intervened yet, at least four justices believe the question is important. When the time comes, the Court would be right to endorse the Independent State Legislatures doctrine as faithful to text and history.
The Constitution’s text is clear. The Congressional Elections Clause says that the power to run federal elections “shall be prescribed in each State by the Legislature thereof.” The argument that “legislature” can mean “the lawmaking process as constituted by the state” fails for three textual reasons.
Legislature Had a Clear Meaning in 1789
While some words in the Constitution are vague or uncertain, “legislature” is not one of them. As the Supreme Court has noted, the Framers in 1789 understood the “legislature” of a state to be the elected representative body of the state’s internal government. English legal scholars at the time viewed the legislature as three branches – the King and both houses of Parliament. The notion that the “legislature” could be some form of direct democracy would have been certifiably insane at the time of the founding. Even the majority in AIRC admits that at the founding, lawmaking via the ballot was “virtually unknown.”
Legislature is Unique From the State Generally
The Constitution’s other uses of “legislature” bolster the idea that the Court should interpret it in accordance with its ordinary meaning. In particular, it distinguishes between power granted to the states and their state legislatures.
The Constitution grants specific powers to the states throughout. Article One Section Ten is among the dozens of occasions, prohibiting states from conducting foreign relations and imposing tariffs. It reads “No State shall enter into any Treaty, Alliance, or Confederation…[and] No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports” (italics added). The Tenth Amendment reserves all powers not specifically enumerated in the Constitution to Congress to the “states.” Both clauses omit reference to the legislature. This occurrence is common – the Constitution references the “legislature” only thirteen times in its original form.
The absurdity of expansively defining “legislature” in some of these cases reveals the term’s true meaning. Article Six, for example, says “the Members of the several State Legislatures. . . shall be bound by Oath or Affirmation, to support this Constitution.” Are the voters of Arizona, where the legislature apparently includes the electorate, required to take an oath to the constitution? Such a suggestion seems tenuous at best. The Supreme Court struck down mandatory flag salutes in schools as violating the First Amendment, let alone full oaths of loyalty at the ballot box.
Or take, for example, Article One Section Two. It provides that the requirements for voting in House of Representatives elections in each state must be the same as the requirements for voting for “the most numerous Branch of the State Legislature.” This clause is nonsensical if the legislature is more than a body of elected representatives. Voters don’t elect themselves or independent commissions not matter how numerous those groups are. And further, “most numerous branch” implies a legislature with finite, defined houses. It does not imply a free-floating concept that the state can define and redefine at its pleasure.
It would be strange to interpret “legislature thereof” as “anybody that can make law for the state.” This reading would render the term meaningless ink, making state legislative powers the same as general state power.
The Plain Meaning of Legislature has not Changed Since 1789
It may be tempting to argue that the meaning of the “legislature” has evolved from the strict 1789 understanding. But that temptation must yield to the simple truth that “legislature” does not today mean all law-making bodies. As used in everyday life, it still means a group of elected representatives that meets in the state capital, passes laws and stands for election on a set schedule. While modern Americans understand the lawmaking process differently than the Founders, the ordinary meaning of the word “legislature” itself has not changed.
Imagine Texas passed a minimum wage increase via ballot measure. The next morning, a reporter goes to their editor with the headline “Texas Legislature Votes to Increase Minimum Wage.” Is that headline correct? Of course not. If the CDC imposes a mask mandate on planes, would a foreign paper be correct in saying “American Legislature Mandates Masks on Planes?” Similarly not. If “legislature” excludes ballot measures and agencies in our ordinary, contemporary usage of it, then how does “legislature” in the Congressional Elections Clause not convey that meaning?
But perhaps it’s not the meaning of the word that has changed, but how we understand the delegation of power. Maybe in the modern world, we’ve come to accept entities like legislatures delegating more of their power to other actors. After all, Congress delegates its power to various agencies all the time. But this argument fails too. Federally, agencies remain accountable to Congress. Congress can abolish agencies, slash their budgets, and override their decisions through legislation. Even informally, Congress can refuse to confirm agency officials or force them to endure grueling oversight hearings.
But in most situations where parties argue over the meaning of the word “legislature”, this is not the case. State legislatures ordinarily lack control over appointed special masters and independent commissions. When the voters enact election laws via ballot measures, the legislature is “delegating” power to a group (the voters) that it is subordinate to. Reforms like these don’t just delegate authority, they completely strip the legislature of any role in the process.
The historical understanding of the word “legislature” in the Constitution further weakens the case for independent commissions and special masters.
The Election of Senators
The election of senators is of particular importance in interpreting the term “legislature.” The Constitution originally mandated that senators had to be selected by the “legislature” of each state. This language was always understood to mean the literal legislature of each state. The 17th Amendment, creating direct election of Senators, could not be ordinary legislation because everyone understood that the unamended Constitution allowed no such thing. Legislatures begged to give away this power, as vacancies often led to years of infighting and gridlock. Progressive reformers became so desperate they often put the election of senators on the ballot as a way to exert informal pressure on the legislatures. As Chief Justice Roberts said in AIRC, these activists seem like “chumps.” Why pass an amendment when the overburdened legislatures could have simply delegated the election of Senators to the electorate?
The Ratification of Amendments
The second area where historical practice shows the meaning of “legislature” is the ratification of constitutional amendments. Article Five of the Constitution provides that constitutional amendments must be ratified by three-fourths of the state “legislatures.” In Hawke, the Court confirmed that this language limited ratification powers to the literal legislature of each state. Ballot measures were not allowed. Far from being an erroneous one-off, the Court reaffirmed Hawke in both Smiley and AIRC. Even as the majority in AIRC confirmed the legality of ballot measures and independent redistricting commissions, it said that “in the context of ratifying constitutional amendments, in contrast, ‘the Legislature’ has a different identity, one that excludes the referendum and the Governor’s veto.”
There is no Reason to Deviate From this Historical Understanding
The AIRC majority tried to reason around both these historical examples. It claimed that the historical understandings of Senate elections and ratification were correct but what validly constitutes a “legislature” changes based on what type of function is being exercised. In the case of amendments, a “ratifying” function can only be exercised by the legislature. The same holds for the election of senators, which is an “electoral” function. But the majority held that redistricting is a pure “legislative” function subject to the state’s decisions about how to carry it out.
This argument is unconvincing. At the outset, the core assumption fails. The debate is not over what type of power is being exercised, but over what constitutes a “legislature.” What makes up a legislature does not differ based on what type of power is being exercised.
The Constitution grants various specific duties and powers to the “President,” but no one could argue these are things Joe Biden could hand off to Kamala Harris depending on the subject matter. Harris could not, for example, veto a bill. She couldn’t be the Commander in Chief of the armed forces. She couldn’t nominate judges to the Federal Judiciary. Nor could any of these duties be handed off to a committee or nationwide referendum. While obviously, Biden could rely on third parties for advice, the final decision, the formal duty, always rests with him.
If he tried, that would be illegal. But it would not be because of the type of power being exercised. After all, vetoing bills could be called a quasi-legislative function, commanding the armed forces a military function, and nominating judges an appointing function. The reason handing any of these duties off is inappropriate is because the President alone holds the powers. It does not matter that they differ in what type of power they are.
But even accepting the majority’s premise as true, the argument still fails. The majority never explains why “legislature” can expand when it’s a legislative function but not a ratifying or electoral one. If anything, it would make more sense to delegate to the electorate when the legislature exercises an electoral duty. The majority in AIRC points to precedent but never justifies this precedent on its own terms. It never explains why legislatures must jealously guard “electoral” and “ratifying” functions. But at the same time, why the can give away “legislative” functions to other entities at will. In truth, the majority cannot justify this arrangement with anything found in the text, history, or tradition of the relevant clauses.
What Comes Next
While AIRC and its logic are regrettable, there is still considerable debate as to what would replace the current legal regime. The most prominent defense of the Independent State Legislatures Theory comes from Michael Morely, a professor of law at Florida State. Morley proposes that state legislatures should be constrained by nothing except the federal constitution, not even state constitutions and courts. I disagree with this. As Akhil and Vikram Amar lay out in a forthcoming Yale Law Review article, this would be out of step with the understanding of how state legislatures operated at the founding.
The federal Bill of Rights originally did not apply to the states at all. State constitutions were the main constraint on the power of state legislatures. Moreover, state constitutions create state legislatures. It would raise a strange “Frankenstein’s Monster” problem to rule that the creator cannot bind its creation. I favor retaining gubernatorial vetoes for similar reasons. These vetoes were known to the Founders, who decided to incorporate them into the Federal Government structure.
However, independent commissions, ballot measures, and special masters should be deemed unconstitutional. Not only were they unknown at the founding, they completely divest the legislature of any real power over the process. These, in combination, make them constitutionally impermissible. Measures such as Iowa’s nonpartisan advisory board, which suggests maps to the legislature, remain constitutional. While the founders did not foresee these, they continue to allow the legislature to have a kind of final say. Any compliance with the advisory board from the legislature, while based on long-standing norms, is fundamentally voluntary.
Similarly, state courts could still use their state constitutions to deem congressional maps unconstitutional. In conjunction with strict state guidelines about things like county splits, communities of interest, and partisan balance, states would still have powerful tools to combat gerrymandering.
But the remedies issued by state courts would still be subject to review by federal courts. As Chief Justice Rehnquist pointed out in Bush v. Gore, these state court rulings create federal constitutional questions. While they could not appoint map drawers, they could tell the legislature to try again. This system does not show a lack of respect for the states. While state courts should be given the benefit of the doubt, their interpretations of state law are not iron-clad. To hold otherwise would be to render state court remedies immune from federal review, which they obviously are not.
The text, history, and tradition of the word “legislature” as it is used in the Constitution show the word refers only to a specific body of elected representatives. Attempts to show why the meaning of the word may change are inadequate. If the issue is raised at the Supreme Court again, it should correct its past errors in Hildebrant and AIRC. Removing congressional redistricting from state legislatures, while in many cases a good idea, is fundamentally unconstitutional.