It’s critical to come up with a suitable response for a variety of reasons. First, it offers an originalist response to a challenging interpretive issue, which is significant in and of itself while also demonstrating the influence of originalism as a form of interpretation. But it’s also important because it answers two of the most pressing questions about elections in recent years: (1) whether courts can use state constitutional provisions to overturn laws passed by state legislatures that regulate the presidential election, and (2) whether state referenda can be used to bypass state legislative redistricting decision and assigned to independent commissions.
The repeated usage of the term “state legislatures” in the Constitution necessitates the answers to two key questions. One concern is whether a body other than the state legislature can take action while the state legislature is designated to do so by the Constitution. The Constitution, for example, states that “every State shall appoint the members of the electoral college in such Manner as the Legislature thereof may direct.” Is it true that this clause allows the state Constitution to circumvent the state legislature’s decision on how electors are appointed? And, if it does, would the courts be able to enforce the constitutional clause against the state legislature? The Pennsylvania Supreme Court used the state constitution to overturn the state legislature’s election law in the 2020 election. Despite the fact that the United States Supreme Court declined to hear the appeals to that ruling, the issue of whether the action was constitutional remains unanswered.
A similar problem arises when a state transfers a decision of the state legislature to another body, either by its constitution or other means. For example, “the Times, Places, and Manner of Holding Elections for Senators and Representatives, shall be specified in each State by the Legislature thereof,” according to the Constitution. Is it possible to delegate redistricting decisions to an impartial commission rather than the state legislature via the state constitution or a referendum? Some states have done so, and in Arizona State Legislature v. Arizona Independent Redistricting Comm’n, the Supreme Court allowed the action in 2015. The state constitution or the electorate cannot delegate any of these decisions to anyone other than the state legislature, according to my brief response to these questions.
The state legislature provisions often raise the issue of which body makes a decision when the state legislature is given the duty. Is the decision to be taken by the state legislature as a whole – that is, both legislative houses – but without the governor’s veto? Is it to be made by the state legislature, with a gubernatorial veto option? Often the procedure is for one (for example, adoption of constitutional amendments by state legislatures), and other times it is for the other (state legislative determination of the times, places and manner of holding congressional elections). Is this a good practice, and if so, why? In this paper, I argue that the Constitution distinguishes between duties that require the state legislature to pass laws and those that do not.
Constitutions and Popular Votes vs. State Legislatures
Let me begin by answering the first question. Is it possible for the state constitution to make a decision instead of the legislature? No, is the short answer. The United States Constitution means exactly as it says. Since the decision is delegated to the state legislature, the state constitution (especially if passed in part by a body other than the state legislature) cannot override it. The United States Constitution takes precedence over state constitutions. This suggests that the Pennsylvania Supreme Court behaved unconstitutionally prior to the 2020 presidential election when it used the state constitution to circumvent a state law that allowed a mail-in ballot to be submitted by 8:00 p.m. on election night, instead holding that the ballot could be received up to three days later.
Similarly, it is illegal for the citizens of the state to delegate the decision on how to hold congressional elections to a redistricting commission by a popular vote required by the state constitution. The Supreme Court defended the constitutionality of these commissions in Arizona Independent Redistricting Comm’n (2015), arguing that the citizens of the state are exercising legislative authority and therefore constitute a state legislature. However, the word “state legislature” does not apply to someone or something with legislative authority. Rather, it refers to a particular form of institution, and a state legislature is not elected by the citizens of the state by a popular vote. Although the Supreme Court’s approval requires states to use common referenda and redistricting commissions to fight gerrymandering, it does so in an unconstitutional manner. State and congressional laws are the only legally approved ways to prevent gerrymandering.
Several constitutional provisions, for example, are incompatible with viewing the people of the state as the state legislature, as in the clause that states that “if [Senate] Vacancies occur by Resignation or otherwise during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the legislature, which shall then fi The state’s people do not take vacations. The Constitution may provide for a variety of state legislatures, but it does not allow for a state legislature to be elected by popular vote.
State Legislatures Working Alone or in Partnership with Governors
Take a look at the second issue. The state legislature is often treated as only the two houses, at other times it is treated as the two houses plus presentation to the governor. But how can that activity be reconciled with the text of the Constitution?
The form of operation assigned to the state legislature determines the response here. If the action involves passing a statute, the state legislature will follow the usual legislative procedure, which in almost every state includes the threat of a gubernatorial veto. When the state legislature is given the authority to control “the Times, Places, and Manner of Conducting Elections” for members of the House of Representatives, the Constitution envisions an election regulated by laws passed by the state legislature. The legislature will then use its normal procedure to enact such legislation.
If, on the other hand, the action is merely a vote on a matter that does not include the passing of a statute but is instead part of a mechanism defined by the Constitution, the role is entirely assigned to the state legislature, with no involvement from the governor. The “Senate of the United States shall be composed of two Senators from each State, elected by the Legislature thereof, for six years,” according to the original Constitution. The governor is not interested in the selection of a Senator because it does not entail the passing of a statute. The ratification of constitutional amendments, which does not include the enactment of a statute but is instead part of a two-part mechanism defined by the Constitution, yields a similar outcome.
How would we deduce this distinction from the document if this is the distinction drawn by the Constitution? To put it another way, how do we derive two separate meanings from essentially the same language, and then figure out which of these meanings applies to which situations? Let’s start with two separate meanings derived from essentially the same language. This language, in particular, is capable of both meanings. The terms “state legislature” are often used to refer to only the two houses – what we refer to as “the state legislature proper.” Most occasions, the terms are used to refer to the two houses of the state legislature as well as the governor’s presentation – for example, when someone says a law was passed by the state legislature even though the governor was involved. As a result, both definitions are entirely compatible in the language.
The clause regulating the electoral college’s selection is the most difficult to understand. “Each State shall nominate, in such Manner as the Legislature thereof can direct, a Number of Electors…” says the clause. State governments seem to have taken two approaches to this clause in the past. When the legislature chose the electors, as it did in the early years of the Republic, the decision was made by the legislature itself. When the legislature approved an election to choose the electors, it did so by the normal legislative procedure, which included the possibility of a gubernatorial veto.
It’s difficult to figure out how to interpret the clause that authorizes this activity. The clause requiring the legislature to act by statute when legislation is necessary and through the legislature proper when legislation is not required must be understood. That would necessitate rephrasing the clause to read, “Each State shall designate, in such Manner as the Legislature can direct by law or on its own, as the circumstances require…” Is this a legal reading of the text?
This interpretation is, admittedly, a bit of a stretch, but it has a lot of support in addition to fitting the practice. First, since other constitutional provisions concerning the state legislature are correctly interpreted as meaning either the legislature proper or the legislature by statute, depending on the context, this interpretation gains support as having a meaning that is mirrored in these other constitutional provisions. Reading constitutional provisions in accordance with other provisions in the Constitution is a standard canon of textual interpretation. Second, since this interpretation is consistent with practice, it suggests that this is how state legislatures have traditionally interpreted the provision.
Finally, interpreting the various constitutional provisions surrounding state governments poses a challenge to both our constitutional interpretation and originalism. We would have a much poorer understanding of our Constitution if it were difficult to reconcile these various clauses in a coherent manner, as some non-originalists seem to believe. It will also give non-originalists more leeway in interpreting provisions, allowing them to arrive at conclusions that they prefer on political grounds. But, if I’m right, the original context makes sense, is understandable, and imposes strict limitations on how the Constitution applies to state legislatures in a few key cases.