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10/29/2014

Michael Morley: The Intratextual Independent 'Legislature' and the Elections Clause
Michael Ramsey

Michael Morley (Barry University School of Law) has posted The Intratextual Independent 'Legislature' and the Elections Clause on SSRN. Here is the abstract: 

Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State "legislatures," rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.

Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term "Legislature," as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term "Legislature" is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term "Legislature," as well as the "independent state legislature" doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.

Yes, this is my intuition as well.