No, they aren’t, said the Court’s majority. “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,” Ginsburg wrote. “[T]he Clause surely was not adopted to diminish a State’s authority to determine its own lawmaking processes.” Beyond that, the literal-reading rule “would cast doubt on numerous other election laws adopted by the initiative method of legislation.”
The Court’s opinion further noted that state constitutions themselves often contain regulations of voting. Those constitutional provisions are usually adopted either by popular vote or by special convention, meaning that everything about a state’s federal election laws could be rewritten by legislative whim. Meanwhile, the federal Election Clause does not govern anything about state legislative elections, which would remain under control of the political process generally. In other words, there might soon be, in many states, two full sets of election laws, one for federal and one for state.
There will be enough questions of political theory, practical impact, and constitutional interpretation to keep constitutional law nerds like me happy during the Court’s summer recess. But for today, the most interesting development is the dissents. Roberts argued that all the hand-wringing about spillover effect was bogus: The Constitution only bars the voters from totally excluding the legislature from districting. The weakness of this argument is that the text doesn’t contain that limit; if “legislature” means only and always the bad-haircut gang at the state capital, then governors, courts, and voters are out altogether, and the nightmare would be only beginning.
But here’s the passage from Roberts’ dissent that caught my eye: “In short, the effect of the majority’s decision is to erase the words ‘by the Legislature thereof’ from the Elections Clause.”
The majority had based its reading in part on the purpose and spirit of the Constitution; “by the legislature thereof,” they said, meant “by the legislature or the voters thereof.” The words should be read in tune with what the Framers were trying to achieve, and against the background principle that the people, not their legislative masters, are the true rulers of the American republic.
That reading, Roberts said, was “judicial error of the most basic order.”Almost as if, for example, a statute were to say “established by a state,” and a court were to read it to mean “established by a state or the federal government.”
Enough said about that; I think Roberts read the statute right in King v. Burwell, and I think the majority read the Constitution right in Arizona, and I leave it to Roberts to reconcile any conflict between his opinions.