There Are "Manners", Even in Elections

This week, the Supreme Court is visiting a challenge to the State of Arizona in regard to the conduct of its creation of Congressional districts.  The quick and dirty story -- Arizona and California both have independent boards create the districts, separate from the legislative process and legislatures.  It is not exactly a partisan issue, since a "win" for the side seeking to return district creation to the legislatures in Arizona would have the opposite effect in California, given that Arizona's current legislature is Republican and California's is Democrat.

The protest by the complainants is that, by removing the process from the legislature, as was done when Arizona did so by referendum in creating an independent board, the state is in violation of the Constitution's Election Clause.  In that clause, it grants to state legislatures "the times, places and manners of holding elections for senators and representatives ...".

The Republican-led Arizona legislature brought the case, while the California Republicans, with amicus briefs or testimony by three former Republican governors, are formally neutral but not exactly hoping for a win by their compatriots in Arizona.  It is really not a partisan issue, much as the Democrats would like to portray it as being.  "The bottom line is they had no problem with the independent redistricting law when the lines were drawn to their liking," said Sen. Steve Farley, the assistant Democratic leader.

No, Steve-o, that is not the "bottom line."  No doubt that there would be no suit if the Republicans didn't feel an impending threat, but the case is still relevant and constitutionality is what is the "bottom line."

And there, I happen to disagree with the suit.

I am not a 1789-era Founding Father, nor a descendant of any of them.  I can't pretend to know what was in their minds completely when they wrote each word in the Constitution.  But I do deduce from history that they placed the same type of concern on each word that I do when I write them, at least most of the time in my case.

I read words such as "the times, places and manners of holding elections for senators and representatives ..." and I interpret the intent as covering the logistics of elections, not redistricting, which is more about representation and less about logistical operations.

Why do I feel that way?  Because the first two of the three elements -- times and places -- have nothing to do with governance and are purely logistical.  Where are the polling places?  When is Election Day?  That tells me that the word I would assume to be relevant -- "manner" -- was written intentionally to refer to the operation of the election and not the dissection of the state into districts.  Is that not the inference you would make?  Feel free to comment below.

I'm going with my gut on this, because, to me, the dominant factor is what is in the words of the Article and Clause of relevance.  It's not a political thing -- I've no dog in the fight -- but if the Supreme Court is going to make a ruling in this case that is at risk of being used as a precedent, let's go for reading the words as being "as they were intended."

That way, we treat "manner" in the proper manner.  Amen.

Copyright 2015 by Robert Sutton