Page:Moore v. Harper.pdf/57

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Cite as: 600 U. S. ____ (2023)

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Thomas, J., dissenting

To be sure, the precise constitutional significance of the word “Legislature” depends on “the function to be performed” under the provision in question. Smiley, 285 U. S., at 365. Because “the function contemplated by” the Elections Clause “is that of making laws,” id., at 366, this Court’s Elections Clause cases have consistently looked to a State’s written constitution to determine the constitutional actors in whom lawmaking power is vested. See Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, 795–796, 814 (2015); Smiley, 285 U. S., at 363; Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 566–568 (1916).^[1] The definitions that most precisely explain this Court’s holdings were given in a state-court case that anticipated Hildebrant and Smiley by several years: “[T]he word ‘Legislature,’ as used in [the Elections Clause] means the lawmaking body or power of the state, as established by the state Constitution,” or, put differently, “that body of persons within a state clothed with authority

↑ The only complications with this approach have arisen where a State Constitution did not vest the legislative power wholly in a single representative body, as the Federal Constitution appears to presuppose. Thus, in Hildebrant, the Court rejected as nonjusticiable an argument “that to include the referendum within state legislative power for the purpose of apportionment” was “repugnant to” the Elections Clause. 241 U. S., at 569. Somewhat similarly, in Arizona State Legislature, the Court faced a State Constitution “in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature,” 576 U. S., at 819, with the majority “see[ing] no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking,” id., at 808–809. As relevant to identifying the State’s “Legislature,” the majority opinion emphasized that Arizona’s written Constitution “ ‘establishes the electorate of Arizona as a coordinate source of legislation’ on equal footing with the representative legislative body,” id., at 795 (alteration omitted), and thus held that “lawmaking power in Arizona includes the initiative process,” id., at 793; see also id., at 814. No such complications exist in North Carolina, where the State Constitution simply provides that “[t]he legislative power of the State shall be vested in the General Assembly.” Art. II, §1.

[1] The only complications with this approach have arisen where a State Constitution did not vest the legislative power wholly in a single representative body, as the Federal Constitution appears to presuppose. Thus, in Hildebrant, the Court rejected as nonjusticiable an argument “that to include the referendum within state legislative power for the purpose of apportionment” was “repugnant to” the Elections Clause. 241 U. S., at 569. Somewhat similarly, in Arizona State Legislature, the Court faced a State Constitution “in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature,” 576 U. S., at 819, with the majority “see[ing] no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking,” id., at 808–809. As relevant to identifying the State’s “Legislature,” the majority opinion emphasized that Arizona’s written Constitution “ ‘establishes the electorate of Arizona as a coordinate source of legislation’ on equal footing with the representative legislative body,” id., at 795 (alteration omitted), and thus held that “lawmaking power in Arizona includes the initiative process,” id., at 793; see also id., at 814. No such complications exist in North Carolina, where the State Constitution simply provides that “[t]he legislative power of the State shall be vested in the General Assembly.” Art. II, §1.

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