The Constitution’s multiple references to “state legislatures” raise difficult and significant issues.  The main question is whether we can give a consistent answer to the meaning of this term across a large number of different constitutional clauses that both fits the constitutional text and gives a plausible answer.  In this essay, I begin to offer a solution to this significant matter.

Developing a satisfactory answer is important for several reasons.  First, it provides an originalist answer to a difficult interpretive question – something important in its own right that also demonstrates the power of originalism as an interpretive method.  But it is also important because it addresses two of the most significant questions involving elections in recent years – questions such as (1) whether courts can use state constitutional provisions to displace laws passed by state legislatures that regulate the presidential election and (2) whether state referenda can be used to bypass state legislative redistricting decisions by assigning redistricting decisions to independent commissions.

The Constitution’s frequent use of “state legislatures” requires two main questions to be answered.  One question involves whether an entity other than the state legislature can take an action when the Constitution assigns that action to the state legislature.  For example, the Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” the members of the electoral college.  Does that provision allow the state Constitution to override the state legislature’s decision as to the manner of appointing the electors?  And if it does, can the courts enforce that constitutional provision to the detriment of the state legislature?  In the 2020 election, the Pennsylvania Supreme Court used the state constitution to override the election law that the state legislature had enacted.  While the United States Supreme Court refused to hear the challenges to that decision, the question remains whether that action was constitutional under the U.S. Constitution.

A similar issue that arises here occurs when the state, either through its constitution or some other means, assigns a decision of the state legislature to another entity.  For example, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  Does this provision allow the state constitution or the voters through a referendum to assign redistricting decisions to an independent commission rather than the state legislature?  Some states have done exactly that and the Supreme Court in 2015 approved of the action in Arizona State Legislature v. Arizona Independent Redistricting Comm’n.  My short answer to these questions is that the United States Constitution prevents the state constitution or the voters from assigning any of these decisions to anyone other than the state legislature.

The second question raised by the state legislature provisions involves which entity makes a decision when the state legislature is assigned that task.  Is the decision to be made by the state legislature proper – that is, both legislative houses but with no opportunity for the governor to veto it?  Or is it to be made by the state legislature with opportunity for a gubernatorial veto?  Sometimes the practice is for one (for example, state legislative ratification of constitutional amendments), at other times the practice is for the other (state legislative determination of the times, places and manner of holding congressional elections).  Is the practice correct, and if so, why?  Here, I argue that the Constitution draws a distinction between tasks for the state legislature that involve enacting laws and tasks that do not.

State Legislatures or Constitutions and Popular Votes

Let me start out with the first question.  Can the state constitution make a decision instead of the state legislature?  The short answer is no.  The U.S. Constitution means what it says.  The fact that the state legislature is assigned the decision means the state constitution (especially if enacted in part by an entity other than the state legislature) cannot override the state legislature.  The U.S. Constitution takes priority over the state constitution.  This indicates that the Pennsylvania Supreme Court acted unconstitutionally prior to the 2020 presidential election when it relied upon the state constitution to override the state statute that had required a mail in ballot to be received by 8:00 PM on election night and instead held that the ballot could be received up to three days after the election.

Similarly, if the people of the state, through a popular vote allowed by the state constitution, assign the decision on how to hold congressional elections to a redistricting commission, that too is unconstitutional.  The Supreme Court in Arizona Independent Redistricting Comm’n (2015) sought to defend the constitutionality of these commissions by arguing that the people of the state are exercising legislative power and therefore constitute a state legislature.  But the term “state legislature” does not refer to anyone or anything that exercises legislative power.  Rather, it refers to a specific type of institution and therefore the people of the state in a popular vote are not a state legislature.  While the Supreme Court’s approval allows states to combat gerrymandering through popular referenda and redistricting commissions, it does so in an unconstitutional manner.  The only constitutionally authorized ways to combat gerrymandering is through state or congressional legislation.

In fact, various constitutional provisions are inconsistent with understanding the people of the state as the state legislature, as, for example, in the clause that provides “if [Senate] Vacancies happen 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 fill such vacancies.”  The people of the state do not take recesses.  The Constitution may contemplate some variety in types of state legislatures, but it does not contemplate a popular vote of the people as a state legislature.

State Legislatures Alone or With Governors

Now, consider the second question.  Sometimes the practice treats the state legislature as simply the two houses and at other times it treats it as the two houses along with presentment to the governor.  But how can that practice be made consistent with the constitutional text?

Here, the answer turns on the type of activity that is assigned to the state legislature.  If the activity involves passing a law, then the state legislature can use its normal process for passage of a law, which in virtually all states involves the possibility of a gubernatorial veto.  Thus, when the Constitution confers on the state legislature the power to regulate “the Times, Places and Manner of holding Elections” for members of the House of Representatives,” it contemplates an election governed by laws enacted by the state legislature.  The legislature can then use its ordinary process for passing such laws.

By contrast, if the activity is simply a vote on a matter that does not require the passage of a law but instead is simply part of a process established by the Constitution, then the Constitution assigns the task entirely to the state legislature, without the governor’s participation.  For example, the original Constitution provided that the “Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.”  Since selecting a Senator does not involve passage of a law, the governor is not involved.  A similar result applies to the ratification of constitutional amendments, which does not involve passage of a law, but is simply part of a two part process established by the Constitution.

If this is the distinction that the Constitution draws, then how can we derive it from the text?  In other words, how do we derive two different meanings from largely the same language, and how do we then determine which of these meanings apply in which situations?  Let’s begin with deriving two different meanings from largely the same language.  Significantly, this language is capable of both meanings.  Sometimes the words state legislature are used to mean only the two houses – what we can call “the state legislature proper.”  At other times, the words are used to refer to the two houses of the state legislature along with presentment to the governor – as when someone describes a law as having been enacted by the state legislature, even though the governor was involved.  Thus, the language is perfectly consistent with both meanings.

Which of the two meanings was employed depends on the context.  In the case of the Constitution assigning a task that involves passage of a law, such as regulating the times, places, and manner of holding congressional elections, the context suggests enactment by the normal state legislative process for passing a law.  In that situation, the Constitution is saying, the state legislature has the power to regulate by law the times, places and manner of holding elections.  It does not need to say that explicitly because it is understood that such actions would normally be enacted through laws.  By contrast, in the case of the Constitution assigning a task, such as selecting a Senator that does not involve passing a law, the term “state legislature” has its more straightforward or proper meaning.

The hardest provision to interpret is the one governing the selection of the electoral college.  The provision states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .”  Historically, it appears that state legislatures have proceeded in two ways under this provision.  When the legislature selected the electors, as happened in the early years of the Republic, the legislature proper would make the decision.  When the legislature authorized an election to select the electors, the legislature did so through the ordinarily lawmaking process with an opportunity for gubernatorial veto.

Interpreting the provision to authorize this practice is something of a challenge.  One would have to understand the provision to require that the legislature act by law when legislation is required and through the legislature proper when a law is not needed.  That would require reading the provision to say “Each State shall appoint, in such Manner as the Legislature by law or on its own, as the circumstances require, may direct . . . .”  Is this a permissible textual interpretation?

Admittedly, this interpretation is a bit of a stretch, but it does have some significant support in addition to fitting the practice.  First, given that the other constitutional provisions involving the state legislature are properly interpreted as using the term to mean either the legislature proper or the legislature by law, depending on the context, this interpretation gains support as having a meaning that is reflected in these other constitutional provisions.  It is a traditional canon of textual interpretation to read constitutional provisions to accord with other provisions in the Constitution.  Second, since this interpretation fits the practice, this reading appears to be how state legislatures historically must have interpreted the provision.

In the end, the question of how to interpret the different constitutional provisions involving state legislatures is a challenge both for our constitutional understanding and for originalism.  If it were impossible to reconcile these different provisions in a consistent way, as seems to be assumed by some nonoriginalists, then we would have a much poorer understanding of our Constitution.  And it would give nonoriginalists greater freedom to choose how to interpret provisions, permitting them to reach results that they prefer on political grounds.  But if I am right, the original meaning makes sense, can be understood, and places strict limits on how the Constitution applies to state legislatures in some extremely important cases.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission.

Michael Rappaport

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