531US1
Unit: $$U9
[05-01-02 10:02:37] PAGES PGT: OPIN
Cite as: 531 U. S. 98 (2000)
123
Stevens, J., dissenting
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, dissenting.
The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, § 1, cl. 2. When questions
arise about the meaning of state laws, including election
laws, it is our settled practice to accept the opinions of the
highest courts of the States as providing the final answers.
On rare occasions, however, either federal statutes or the
Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.
The federal questions that ultimately emerged in this case
are not substantial. Article II provides that “[e]ach State
shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors.” Ibid. (emphasis added). It
does not create state legislatures out of whole cloth, but
rather takes them as they come—as creatures born of, and
constrained by, their state constitutions. Lest there be any
doubt, we stated over 100 years ago in McPherson v.
Blacker, 146 U. S. 1, 25 (1892), that “[w]hat is forbidden or
required to be done by a State” in the Article II context “is
forbidden or required of the legislative power under state
constitutions as they exist.” In the same vein, we also observed that “[t]he [State’s] legislative power is the supreme
authority except as limited by the constitution of the State.”
Ibid.; cf. Smiley v. Holm, 285 U. S. 355, 367 (1932).1 The
legislative power in Florida is subject to judicial review pur1
“Wherever the term ‘legislature’ is used in the Constitution it is necessary to consider the nature of the particular action in view.” 285 U. S.,
at 366. It is perfectly clear that the meaning of the words “Manner” and
“Legislature” as used in Article II, § 1, parallels the usage in Article I, § 4,
rather than the language in Article V. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 805 (1995). Article I, § 4, and Article II, § 1, both call
upon legislatures to act in a lawmaking capacity whereas Article V simply
calls on the legislative body to deliberate upon a binary decision. As a
result, petitioners’ reliance on Leser v. Garnett, 258 U. S. 130 (1922), and
Hawke v. Smith (No. 1), 253 U. S. 221 (1920), is misplaced.