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ARIZONA STATE LEGISLATURE v. ARIZONA
INDEPENDENT REDISTRICTING COMM’N

Opinion of the Court

at the ballot box, without involvement or approval by “the Legislature.”[1] Core aspects of the electoral process regu­lated by state constitutions include voting by “ballot” or “secret ballot,”[2] voter registration,[3] absentee voting,[4] vote counting,[5] and victory thresholds.[6] Again, the States’ legislatures had no hand in making these laws and may not alter or amend them.

The importance of direct democracy as a means to con­trol election regulations extends beyond the particular statutes and constitutional provisions installed by the people rather than the States’ legislatures. The very prospect of lawmaking by the people may influence the legislature when it considers (or fails to consider) election-related measures. See Persily & Anderson, Regulating Democracy Through Democracy: The Use of Direct Legis­-

  1. ↑ See App. to Brief for Appellees 11a–29a (collecting state constitutional provisions governing elections). States’ constitutional conven­tions are not simply past history predating the first election of state legislatures. Louisiana, for example, held the most recent of its 12 constitutional conventions in 1992. J. Dinan, The American State Constitutional Tradition 8–9 (2006) (Table 1–1). The State’s provision for voting by “secret ballot” may be traced to the constitutional conven­tion held by the State in 1812, see La. Const., Art. VI, §13, but was most recently reenacted at the State’s 1974 constitutional convention, see Art. XI, §2.
  2. ↑ Madison called the decision “[w]hether the electors should vote by ballot or vivâ voce” a quintessential subject of regulation under the Elections Clause. 2 Records of the Federal Convention 240–241 (M. Farrand rev. 1966).
  3. ↑ Miss. Const., Art. XII, §249; N. C. Const., Art. VI, §3; Va. Const., Art. II, §2; W. Va. Const., Art. IV, §12; Wash. Const., Art. VI, §7.
  4. ↑ E.g., Haw. Const., Art. II, §4; La. Const., Art XI, §2; N. D. Const., Art. II, §1; Pa. Const., Art. VII, §14.
  5. ↑ E.g., Ark. Const., Art. III, §11 (ballots unlawfully not counted in the first instance must be counted after election); La. Const., Art XI, §2 (all ballots must be counted publicly).
  6. ↑ E.g., Ariz. Const., Art. VII, §7 (setting plurality of votes as the standard for victory in all elections, excluding runoffs); Mont. Const., Art. IV, §5 (same); Ore. Const., Art. II, §16 (same).
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