Posted by Drew Spencer Penrose on July 09, 2015Since the Supreme Court decided Arizona State Legislature v. Arizona Independent Redistricting Commission on June 29, most coverage has, understandably, been about its implications for redistricting. In fact, I published a piece in Salon with Rob Richie about what the case does and does not mean for the future of congressional elections.
However, the case was not really about redistricting. That case was about the meaning of the word "legislature." Yes, that word appears in the part of the Constitution describing who decides the manner of electing members of Congress, but it also appears 16 other times in the Constitution. This case affects a lot more than just redistricting.
Legal scholar Vikram Amar recently wrote a clear article describing how the case impacts the future of presidential elections. It demonstrates that after the Arizona case, we now know for sure that the manner of selecting presidential electors can be decided by the people themselves through the initiative process. That's big news for supporters of a national popular vote for the election of the president.
Article II of the U.S. Constitution states that "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress...." What the Arizona case says is that this means that the manner of appointment of presidential electors may be decided by initiative, provided this part of the Constitution refers to a kind of legislation, rather than something abnormal like the ratification of a constitutional amendment.
The power given to the "legislature" in Article II is clearly a form of legislation. Just compare the language above with that at issue in the Arizona case: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...." That language very closely mirrors the language in Article II. Both refer to passing a law that regulates a process for selecting officers. If that language from Article I means that the initiative process can be used to regulate congressional elections, then it must be the case that Article II means that the initiative process can be used to regulate the appointment of electors.
The National Popular Vote (NPV) effort asks states to exercise their duty to decide how electors will be chosen by collectively choosing all electors pledged to the candidate who wins the most votes in all 50 states and the District of Columbia. NPV only goes into effect when it has been passed by enough states that if those states award all their electoral votes to the same candidate, that candidate will be guaranteed to win the presidential election.
National Popular Vote is already more than 60% of the way toward going into effect, since New York become the 11th state (including D.C.) to adopt the compact. Now that we know it can be passed by initiative, that opens up the very real possibility of its being enacted sooner. Altogether, 24 states allow legislation by initiative. Given that at least two-thirds of voters support National Popular Vote in every state, such an initiative would pass easily. The Arizona independent redistricting decision may have paved the way for a presidential election in which every vote really matters.