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Legislative Delegations and the Elections Clause

27 Pages Posted: 26 Aug 2015 Last revised: 4 May 2017

Derek T. Muller

Pepperdine University - School of Law; University of Iowa - College of Law

Date Written: July 29, 2015

Abstract

Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.

The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.

This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.

Keywords: Arizona State Legislature v. Arizona Independent Redistricting Commission, Elections Clause, Arizona state legislature, redistricting, legislative disputes, Seventeenth Amendment, Senate election, independent state legislature doctrine

Suggested Citation

Muller, Derek T., Legislative Delegations and the Elections Clause (July 29, 2015). 43 Florida State University Law Review 717 (2016); Pepperdine University Legal Studies Research Paper No. 2015/17. Available at SSRN: https://ssrn.com/abstract=2650432

Derek T. Muller (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States
310-506-7058 (Phone)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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