[EL] Ginsburg error

[Scarberry, Mark]

With regard to the California redistricting process:

So “legislature” includes not only the people via initiatives in which the conventionally understood legislature has no role, but appointed commissions, in which neither the legislative houses (as bodies) nor the people have a role, unless the people organize and vote down the commission’s plan. There is no automatic referendum. And the commissioners aren’t elected; they are chosen randomly (with party affiliation requirements) from a pool of self-selected applicants approved by a three member audit committee of an “independent” agency, subject to having some of the members of the pool struck by state legislative leaders, and then with the 8 who were chosen picking the other six. (At least that’s how I understand the California system. See http://wedrawthelines.ca.gov/faq.html.)

The result is, in some fair sense of the term, the action of “the legislature”?

Is it still possible that this convoluted process in which neither the legislative houses nor the people necessarily play a substantial role is subject to challenge? I suppose not, because the action of the people in using the initiative process to set up the system is the action of the “legislature” according to the Court, and the people, acting as the “legislature,” may delegate authority to a commission.  Perhaps the Arizona initiative was even more removed from the people as “legislature;” I don’t think it even explicitly provided for a possible referendum on the commission’s plan, as does the California scheme, though I may well be wrong on that point.

In the end, I suppose, the Court’s decision was faithful to the precedents, with Hawke v. Smith on the one side and Hildebrant and Smiley on the other, and this case falling closer to the Hildebrant/Smiley side.

Does anyone think, after this case, that an initiative could take away the appointing power of the state legislatures with regard to presidential electors? What about a provision of a state constitution that provided for popular election of electors; could it strip the legislature of the appointing power? What about the National Popular Vote Interstate Compact; could it strip the legislature of the appointing power (including the power to back out of the Compact) during the “blackout period” before a presidential election? My answers: No. No. No. So the question in Bush v. Gore (other than the equal protection issue and the question of remedy) was whether the Florida Supreme Court was implementing the legislative scheme, or instead relying on its own views of what the Florida Constitution required and refusing to implement the legislative scheme, right?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
Sent: Wednesday, July 01, 2015 9:14 AM
To: law-election at UCI.edu
Subject: [EL] Ginsburg error

Since I know Fred Woocher does not check ELB during the day (at least not enough), this is hot off the virtual presses:



Edit<http://electionlawblog.org/wp-admin/post.php?post=73960&action=edit>
Once Again, Justice Ginsburg Not Only Corrects Small Error in Opinion But Announces It<http://electionlawblog.org/?p=73956>
Posted on July 1, 2015 8:24 am<http://electionlawblog.org/?p=73956> by Rick Hasen<http://electionlawblog.org/?author=3>

On Monday, I noted a small error<http://electionlawblog.org/?p=73880> in Justice Ginsburg’s AZ redistricting commission that a reader pointed out to me. When a similar thing happened with the Texas voter id case, Justice Ginsburg promptly corrected the error and announced it, something which is quite rare and worthy of praise (as I noted in this oped<http://t.co/GSN12uL7Db> for the National Law Journal).

Now, from the Court’s public information office:

RE: 13-1314 — Arizona State Legislature v. Arizona Independent Redistricting Commission



For your information, Justice Ginsburg has amended the opinion of the Court in the above case, released on Monday, June 29.  Page 8 of the opinion contained an error.  Redistricting plans adopted by the California Redistricting Commission may be, but are not necessarily, subject to public referendum.  Accordingly, the Justice revised the sentence discussing the California Redistricting Commission to read:  “The California Redistricting Commission, established by popular initiative, develops redistricting plans which can be halted by public referendum.”  The version of the opinion on the Court’s website has been updated.


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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>



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Rick Hasen

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UC Irvine School of Law

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