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

[Bill Maurer]

An interesting (well, I think it’s interesting) thought experiment is what would flow from a decision saying an initiative is not the legislature. Deciding what constitutes a “legislature” seems to be almost the same issue as the one in Luther v. Borden, which was about whether Rhode Island’s legislature constituted a “Republican form of government” under Article 4, section 4. The Supreme Court punted on that one, saying it was a political question but many people have suggested since then that the initiative power is not a “Republican form of government.” If the people pass laws via initiative and that’s not a “legislature,” does that mean that the state is being governed by a form of government that’s not “republican”?

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Scarberry, Mark
Sent: Monday, March 02, 2015 11:19 AM
To: conlawprof at lists.ucla.edu; Election Law
Subject: Re: [EL] Most surprising remark in today's oral argument in the Arizona redistricting case

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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