Judicial Redistricting and the Article I State Legislature

Abstract

Article I of the Constitution commits primary responsibility for the setting of time, place, and manner of congressional elections to the “legislature” of each state, a delegation mirrored in the presidential election context of Article II. Recently, questions have arisen about the meaning of this constitutional commitment, in Bush v. Gore’s presidential election context and in the controversy over the Mississippi congressional redistricting, which the Supreme Court is hearing this term in Branch v. Smith. Ultimately, the question is whether the term “legislature” inherently delegates these powers only to the actual state legislature itself, or refers more generally to the state’s legislative power, thus admitting of such mechanisms as executive veto, popular referendum, and equitable judicial intervention to fill legislative gaps. In answering this question, this Note examines the means used to define the term “legislature” in other constitutional provisions, and derives a test to evaluate the nature of the various constitutional delegations. This approach demonstrates that in the Article I context, any exercise of ex ante lawmaking would be valid, a finding that would legitimate judicial redistricting in the legislature’s stead.