This is the second of two posts about my forthcoming article, Legislative Delegations and the Elections Clause, Florida State University Law Review (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

As I noted yesterday, a number of practices arose out of early election efforts that caused Congress to consider whether or not the election practice was dictated by the "legislature" of the state, such that Congress should recognize the election as valid. I'll briefly summarize a couple of these congressional debates, which are detailed extensively in the paper.

First, there are numerous instances in which direct democracy dictated election procedures in the first hundred years of the Republic. Constitutional conventions, or votes of the people ratifying statehood, would include provisions for elections. And elections that took place pursuant to those elections would usually be approved by Congress, despite the fact that they had not occurred pursuant to the law promulgated by the "legislature."

But in several other instances, Congress rejected election results on account of them occurring by some means not authorized by the legislature. When the legislature acted to supersede a constitutional provision, Congress would recognize the validity of the election pursuant to the legislature's rule. That is, while it would permit the people of a State to promulgate a rule, that rule was not insulated from subsequent legislative action; later actions of the legislature could promulgate a new rule. (Michael Morley has written much about this "intratextual independent legislature" doctrine.)

In all these cases, Congress is confronted squarely with this issue: did the election occur pursuant to a law from the "legislature" of the State, or not? If so, the election was valid; if not, it was invalid. And we have a rich body of these cases, which the Article chronicles, describing Congress's interpretation of the Elections Clause, and specifically the word "legislature."

Second, and perhaps more tellingly in a case like this, Congress has rejected the notion that the legislature could delegate its power (or have it delegated) to some other agency. In an 1865 dispute, the Senate rejected the election of a Senator elected pursuant to rules promulgated by the New Jersey legislature sitting in a joint meeting, probably (more on this below) among other reasons because the joint meeting was not the "legislature" as the Constitution defined it. And in the case of Sessinghaus v. Frost, the House rejected an election in Missouri because the city of St. Louis instituted a voter registration law--the law had not been enacted by the state Legislature. Indeed, a concurring report expressed concern that no state legislature "could delegate its authority to any other power, to any other body" under the Elections Clause.

Given that the independent redistricting commission in Arizona was a rather express delegation of power from the legislature to a commission, Sessinghaus suggests that the delegation would be unconstitutional. But why no mention of this, or any of the many other cases that Congress has decided in these areas? Congress, after all, sits as judge in election disputes. Perhaps it is because it has happily ceded this decisionmaking authority to the courts; perhaps it is because the final votes from members of Congress are not required to include a list of reasons, which makes the precedent of cases like that from 1865 dubious; perhaps it is because the Court distrusts the decisions of Congress, as it rather overtly suggested in the majority opinion. Regardless, the Court's decision in Arizona State Legislature v. Arizona Independent Redistricting Commission runs largely against the practice of Congress in the decades when it held the primary authority of reviewing elections--and, perhaps, suggests that there are more sources of authority for the interpretation of these cases than the Court may traditionally rely upon.

I found the research interesting, and the conclusions from it still developing. But they should provide for some illumination in future discussions about the validity and scope of legislative delegations under the Elections Clause in future cases--and, perhaps, some discussion about the role of congressional precedent in election disputes in such cases.