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

[Justin Levitt]

The Court has indeed said that "Legislature" in Article I includes the 
governor (as well as the popular referendum power), even if 
"Legislature" for purposes of Article V ratification (or, once, for the 
direct election of Senators), does not.

So the Court has already decided that it's permissible for the terms to 
have different meanings in different provisions, in part because the 
body in question serves different functions in each provision. Waxman's 
argument does not depend on overruling the Court's precedent.

(/FYI: I've submitted an //amicus brief 
<http://redistricting.lls.edu/files/AZ%20leg%2020150123%20scholars.pdf>//in 
the case, supporting the commission on federal statutory //grounds./)

-- 
Justin Levitt
Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321

On 3/2/2015 11:22 AM, Rick Hasen wrote:
> 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
> 949.824.0495 - fax
> rhasen at law.uci.edu
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
>
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