Page:Arizona State Legislature v. Arizona Independent Redistricting Comm’n.pdf/58

Rh 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 majority’s contrary understanding requires it to accept a definition of “the Legislature” that contradicts the term’s plain meaning, creates discord with the Seventeenth Amendment and the Constitution’s many other uses of the term, makes nonsense of the drafting and ratification of the Elections Clause, and breaks with the relevant precedents. In short, the effect of the majority’s decision is to erase the words “by the Legislature thereof” from the Elections Clause. That is a judicial error of the most basic order. “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

The Court also issues an alternative holding that a federal statute, 2 U. S. C. §2a(c), permits Arizona to vest redistricting authority in the Commission. Ante, at 19–23. The majority does not contend that this statutory holding resolves the constitutional question presented, see ante, at 23, so its reading of Section 2a(c) is largely beside the point. With respect, its statutory argument is also hard to take seriously. Section 2a(c) does not apply to this case. And even if it did, it would likely be unconstitutional.