Arizona State Legislature v. Arizona Independent Redistricting Commission (2015)

576 U.S. _

Case Year: 2015

Case Ruling: 5-4, Affirmed

Opinion Justice: Ginsburg

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Kagan, Kennedy, Sotomayor


1st Concurring Opinion



1st Dissenting Opinion

Author: Roberts

Joiner(s): Scalia, Thomas, Alito

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Scalia

Joiner(s): Thomas

3rd Concurring Opinion



3rd Dissenting Opinion

Author: Thomas

Joiner(s): Scalia

Other Concurring Opinions:


In 2000, Arizona voters adopted an initiative, Proposition 106, in hopes of ending the practice of partisan gerrymandering in the drawing of legislative districts. Proposition 106 amended the state constitution to remove the redistricting authority from the state legislature and give it to a newly created Arizona Independent Redistricting Commission (AIRC). After the census in 2000 and again in 2010, the AIRC adopted new redistricting maps for the state’s legislative and congressional districts.

Although the state legislature conceded that the voters had the right to establish a commission to draw state legislative district lines, it claimed that removing from the state legislature the power to draw congressional district lines violated the U.S. Constitution’s elections clause (Article 1, section 4, clause 1), which states:

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.

The Arizona legislature filed suit against the AIRC claiming that the word “Legislature” in the elections clause means specifically and only the representative body that makes the laws of the people, and it therefore precludes an independent commission created by the state’s voters. The AIRC responded by arguing that the “Legislature” encompasses all lawmaking authority conferred by the state constitution, including initiatives adopted by the people. A three-judge district court ruled in favor of the AIRC.



In accord with the District Court, we hold that the Elections Clause permits the people of Arizona to provide for redistricting by independent commission. 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 congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves 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.” A Dictionary of the English Language (1st ed. 1755). Thomas Sheridan’s dictionary defined “legislature” exactly as Dr. Johnson did: “The power that makes laws.” 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 (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).

As to the “power that makes laws” in Arizona, initiatives 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 amendments at the polls, independently of the legislature.”). As well in Arizona, the people may delegate their legislative authority over redistricting to an independent commission just as the representative body may choose to do.

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. (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.”

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 Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.” 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. 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.” . . .

While attention focused on potential abuses by state-level politicians, and the consequent need for congressional oversight, the legislative processes by which the States could exercise their initiating role in regulating congressional elections occasioned no debate. That is hardly surprising. Recall that when the Constitution was composed in Philadelphia and later ratified, the people’s legislative prerogatives—the initiative and the referendum—were not yet in our democracy’s arsenal. 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.

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.”. . . But it is characteristic of our federal system that States retain autonomy to establish their own governmental processes. 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.

This Court has “long recognized the role of the States as laboratories for devising solutions to difficult legal problems.” Oregon v. Ice (2009). 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 (2011).

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….

The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the authority of an institutional 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, but that those intrusted with it should be kept in dependence on the people.” . . .

Banning lawmaking by initiative to direct a State’s method of apportioning congressional districts would do more than stymie attempts to curb partisan gerrymandering, 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 lawmaking body for the purpose at hand, have used the initiative to install a host of regulations governing the “Times, Places and Manner” of holding federal elections. For example, the people of California provided for permanent voter registration, specifying that “no amendment by the Legislature shall provide for a general biennial or other periodic reregistration of voters.” The people of Ohio banned ballots providing for straight-ticket voting along party lines. The people of Oregon shortened the deadline for voter registration to 20 days prior to an election. None of those measures permit the state legislatures to override the people’s prescriptions. 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 constitutions were adopted by conventions and ratified by voters at the ballot box, without involvement or approval by “the Legislature.” Core aspects of the electoral process regulated by state constitutions include voting by “ballot” or “secret ballot,” voter registration, absentee voting, vote counting, and victory thresholds. Again, the States’ legislatures had no hand in making these laws and may not alter or amend them. . . .

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 diminish a State’s authority to determine its own lawmaking 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 (1819). So comprehended, the Clause doubly empowers 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 regulations 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 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” The Elections Clause does not hinder that endeavor.

For the reasons stated, the judgment of the United States District Court for the District of Arizona is



Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court. The Constitution contains seventeen provisions referring to the “Legislature” of a State, many of which cannot possibly be read to mean “the people.” 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 (1932).

The majority largely ignores this evidence, relying instead on disconnected observations about direct democracy, a contorted interpretation of an irrelevant statute, and naked appeals to public policy. Nowhere does the majority explain how a constitutional provision that vests redistricting authority in “the Legislature” permits a State to wholly exclude “the Legislature” from redistricting. Arizona’s Commission might be a noble endeavor—although it does not seem so “independent” in practice—but the “fact that a given law or procedure is efficient, convenient, and useful . . . will not save it if it is contrary to the Constitution.” INS v. Chadha (1983). No matter how concerned we may be about partisanship in redistricting, this Court has no power to gerrymander the Constitution. . . .

The majority devotes much of its analysis to establishing that the people of Arizona may exercise lawmaking power under their State Constitution. 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,” if those “processes” violate the United States Constitution. In a conflict between the Arizona Constitution and the Elections Clause, the State Constitution must give way. 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 . . . fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, 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. . . .

I could go on, but the Court has said this before. As we put it nearly a century ago, “Legislature” was “not a term of uncertain meaning when incorporated into the Constitution.” Hawke [v. Smith (1920)]. “What it meant when adopted it still means for the purpose of interpretation.” “A Legislature” is “the representative body which ma[kes] the laws of the people.”

The unambiguous meaning of “the Legislature” in the Elections Clause as a representative body is confirmed by other provisions of the Constitution that use the same term in the same way. When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself. Our precedents new and old have employed this structural method of interpretation to read the Constitution in the manner it was drafted and ratified—as a unified, coherent whole.

The Constitution includes seventeen provisions referring to a State’s “Legislature.” Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole. . . .

The constitutional text, structure, history, and precedent establish a straightforward rule: Under the Elections Clause, “the Legislature” is a representative body that, when it prescribes election regulations, may be required to do so within the ordinary lawmaking process, but may not be cut out of that process. Put simply, the state legislature need not be exclusive in congressional districting, but neither may it be excluded. . . .

The people of Arizona have concerns about the process of congressional redistricting in their State. For better or worse, the Elections Clause of the Constitution does not allow them to address those concerns by displacing their legislature. But it does allow them to seek relief from Congress, which can make or alter the regulations prescribed by the legislature. And the Constitution gives them another means of change. They can follow the lead of the reformers who won passage of the Seventeenth Amendment. Indeed, several constitutional amendments over the past century have involved modifications of the electoral process. Amdts. 19, 22, 24, 26. Unfortunately, today’s decision will only discourage this democratic method of change. Why go through the hassle of writing a new provision into the Constitution when it is so much easier to write an old one out?

. . . I respectfully dissent.


I do not believe that the question the Court answers is properly before us. Disputes between governmental branches or departments regarding the allocation of political power do not in my view constitute “cases” or “controversies” committed to our resolution by Art. III, §2, of the Constitution. . . .

I would dismiss this case for want of jurisdiction.


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 Manner 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.” And it urges “[d]eference to state lawmaking” so that States may perform their vital function as “ ‘laboratories’ ”of democracy.

These sentiments are difficult to accept. The conduct of the Court in so many other cases reveals a different attitude 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 [2015].

This Court’s tradition of disdain for state ballot initiatives goes back quite a while. Two decades ago, it held unconstitutional an Arkansas ballot initiative imposing 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(1995). One year later, it held unconstitutional a ballot initiative that would have prevented the enactment of laws under which “ ‘homosexual, 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 (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.” But if “constitutional tradition” is the measuring stick, then it is hard to understand how the Court condones a redistricting practice that was unheard of for nearly 200 years after the ratification of the Constitution and that conflicts with the express constitutional command that election laws “be prescribed in each State by the Legislature thereof.” . . .

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 “stymieing the right of racial minorities to participate in the political process.” Schuette v. BAMN (2014) (Sotomayor, J., joined by Ginsburg, J., dissenting). It did not hail the ballot initiative as the result of a “State’s empowerment of its people,” nor offer any deference to state lawmaking. Instead, it complained that “[t]he majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process . . . .” Schuette. 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. How quickly the tune has changed.

And how striking that it changed here. The ballot initiative in this case, unlike those that the Court has previously 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 Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” 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 respectfully dissent.