Reading today’s opinion, one would think the Court is a great defender of direct democracy in the States. As it reads “the Legislature” out of the Times, Places and Manner Clause, U. S. Const., Art. I, §4, the majority offers a paean to the ballot initiative. It speaks in glowing terms of the “characteristic of our federal system that States retain autonomy to establish their own governmental processes.” Ante, at 27. And it urges “[d]eference to state lawmaking” so that States may perform their vital function as “ ‘laboratories’ ”of democracy. Ante, at 28.
These sentiments are difficult to accept. The conduct of the Court in so many other cases reveals a different attitude toward the States in general and ballot initiatives in particular. Just last week, in the antithesis of deference to state lawmaking through direct democracy, the Court cast aside state laws across the country—many of which were enacted through ballot initiative—that reflected the traditional definition of marriage. See Obergefell v. Hodges, ante, p. ___.
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And how striking that it changed here. The ballot initiative in this case, unlike those that the Court has previously treated so dismissively, was unusually democracy-reducing. It did not ask the people to approve a particular redistricting plan through direct democracy, but instead to take districting away from the people’s representatives and give it to an unelected committee, thereby reducing democratic control over the process in the future. The Court’s characterization of this as direct democracy at its best is rather like praising a plebiscite in a “banana republic” that installs a strongman as President for Life. And wrapping the analysis in a cloak of federalism does little to conceal the flaws in the Court’s reasoning.
I would dispense with the faux federalism and would instead treat the States in an evenhanded manner. That means applying the Constitution as written. Although the straightforward text of Article I, §4, prohibits redistricting by an unelected, independent commission, Article III limits our power to deciding cases or controversies. Because I agree with Justice Scalia that the Arizona Legislature lacks Article III standing to assert an institutional injury against another entity of state government, I would dismiss its suit. I respectfully dissent.