[EL] A note on posts to multiple lists -- RE: Most surprising remark in today's oral argument in the Arizona redistricting case

[Scarberry, Mark]

A few moments ago I broke my own rule and sent one post with an address that included both the conlawprof and electionlaw lists. (This post also breaks that rule.) Posts sent by people who are not members of both lists may not get to all of you. Be aware, then, that the threads may diverge, and responses may not take into account your posts.

Mark Scarberry (conlawprof moderator)

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: Monday, March 02, 2015 11:22 AM
To: law-election at department-lists.uci.edu
Subject: Re: [EL] Most surprising remark in today's oral argument in the Arizona redistricting case

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> [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<mailto: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

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