The Justices are still considering the Arizona redistricting case that I’ve posted about several times, but a few other things occurred to me about that pending decision that I wanted to share.
1. At oral argument, Justice Kagan pointed out that there are many state constitutional provisions that regulate the “time, place, and manner” of voting in congressional elections. I’m not sure how many there are, but it would seem that all of them would be vulnerable under an analysis that says that only the state legislature may make those regulations subject to congressional preemption. It would be useful to know (and the dissent may end up telling us) how many of these there are.
2. If you take the legislative exclusivity argument seriously, doesn’t that mean that a state court interpretation of a voting regulation for congressional elections could raise a federal constitutional question? In Bush v. Gore, Chief Justice Rehnquist’s concurrence argued that the Florida Supreme Court’s interpretation of state election law regarding the selection presidential electors was so flawed that “the Legislature” was not truly exercising its constitutional authority under Article II. Couldn’t the same be true for a legislature under Article I? (Yes, I know–it was a plurality opinion from Bush v. Gore. Two strikes there. But still.)
3. If Arizona’s plan is unconstitutional, then California’s plan of open primaries adopted as part of the state constitution is probably also unconstitutional. Oddly enough, the Legislature elected under that plan can cure the constitutional flaw by just enacting the same plan as a statute. Right?