[EL] Most surprising remark in today's oral argument in the Arizona redistricting case

[Rick Hasen]

Clement spent considerable time on McPherson in today's oral argument.


On 3/2/15 11:18 AM, Scarberry, Mark wrote:
>
> An insurmountable problem with Waxman’s argument (unless a prior case 
> – Hawke? – is overruled) is that legislature for purposes of 
> ratification of constitutional amendments does not mean the regular 
> lawmaking process. A governor’s attempt to veto a legislature’s 
> decision to ratify is a nullity, even though (if I recall correctly) a 
> state constitution allows the governor to veto bills passed by the 
> legislature. If Waxman’s “consensus view” argument is correct, then 
> Hawke is wrong. A question in Bush v. Gore was whether legislature in 
> Article II should be interpreted to mean something different from its 
> meaning in Article V. But isn’t there another case (I haven’t looked 
> at this in a while and haven’t read the briefs or the transcripts), I 
> believe Smiley v. Holm (?), that allowed the governor to have a role 
> in the provision at issue here? So the question, if I understand it 
> correctly, is not whether  general lawmaking process that includes the 
> legislature is permissible, but whether a process that completely cuts 
> out the legislature (that is, the constitutionally mandated 
> representative legislative body or bodies) is permissible.
>
> Again, it’s been several years since I’ve read Hawke and Smiley, and 
> I’ve read neither the briefs nor the transcript in this redistricting 
> case. (McPherson is not on point here, though it was important in Bush 
> v. Gore.)
>
> 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 
> *Marty Lederman
> *Sent:* Monday, March 02, 2015 11:04 AM
> *To:* conlawprof at lists.ucla.edu; Election Law
> *Subject:* [EL] Most surprising remark in today's oral argument in the 
> Arizona redistricting case
>
> SETH WAXMAN:  The meaning of the word "legislature" that we advocate 
> ["the power that makes laws," which Waxman derived from Samuel 
> Johnson's /Dictionary of English Language /(10th ed. 1792) and Noah 
> Webster's /Compendious Dictionary of the English Language/ (1806)] . . 
> . was, in fact, the consensus definition of "legislature."
>
> JUSTICE SCALIA:  . . . . I don't think it was a consensus definition 
> at all. *You've plucked that out of ­­a couple of dictionaries*.
>
> [I was present in the Courtroom and can attest that the last sentence 
> was uttered with derision. I probably was not the only one who was 
> somewhat alarmed to hear that, given the source.]
>
>
>
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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