“Legislature” and the Elections Clause
Copyright 2015 by Michael T. Morley Vol. 109 Northwestern University Law Review THE INTRATEXTUAL INDEPENDENT “LEGISLATURE” AND THE ELECTIONS CLAUSE Michael T. Morley* INTRODUCTION The Elections Clause of the U.S. Constitution is the Swiss army knife of federal election law. Ensconced in Article I, it provides, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.”1 Its Article II analogue, the Presidential Electors Clause, similarly specifies that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to select the President.2 The concise language of these clauses performs a surprisingly wide range of functions implicating numerous doctrines and fields beyond voting rights, including statutory interpretation,3 state separation of powers and other issues of state constitutional law,4 federal court deference to state-court rulings,5 administrative discretion,6 and preemption.7 * Assistant Professor, Barry University School of Law. Climenko Fellow and Lecturer on Law, Harvard Law School, 2012–14; J.D., Yale Law School, 2003; A.B., Princeton University, 2000. Special thanks to Dr. Ryan Greenwood of the University of Minnesota Law Library, as well as Louis Rosen of the Barry Law School library, for their invaluable assistance in locating historical sources. I also am grateful to Terri Day, Dean Leticia Diaz, Frederick B. Jonassen, Derek Muller, Eang Ngov, Richard Re, Seth Tillman, and Franita Tolson for their comments and suggestions. I was invited to present some of the arguments from this Article in an amicus brief on behalf of the Coolidge-Reagan Foundation in Arizona State Legislature v.
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