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

[Trevor Potter]

And the people of Arizona insisted on doing so when they drafted their constitution-I understand their determination to include the initiative process in their constitution was a bone of contention in the ratification process--so from the start Arizona has wanted the Arizona citizenry at large to serve as direct legislators , providing another avenue to the representative legislators. The question is whether the U.S. Constitution denies the state that choice under  the elections clause...

Sent from my iPhone

On Mar 2, 2015, at 4:25 PM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

The argument is not that the Commission exercises the legislative power--it is that the people of Arizona did.

On Mon, Mar 2, 2015 at 4:19 PM, Rosenthal, Lawrence <rosentha at chapman.edu<mailto:rosentha at chapman.edu>> wrote:
I am always struck by how poorly even accomplished advocates use historical evidence.  Perhaps because lawyers advocates used to cherry-picking evidence and not historians trained to be sensitive to context and holistic evaluation of the evidence, it seems to me that lawyers are unusually adept at talking themselves into what are truly terrible arguments based on isolated historical evidence.   Does anyone really think that it is fair to read the phrase “the Legislature thereof,” when it comes to Arizona, to refer to its redistricting commission?  It’s almost impossible to say with a straight face:  How can Arizona’s legislature somehow not be its “legislature” for purposes of this case?  Apparently, we are supposed to believe that Arizona has two legislatures, one for redistricting and the other for everything else, although even this tortured view is hard to fit with the Elections Clause’s reference to a singular legislature “the Legislature thereof”).  I must confess that my reaction to this argument differs little from that of Justice Scalia.

As a policy matter, I quite agree with the use of citizen redistricting commissions.  I also have a great deal of sympathy with the argument that Congress has authorized the Arizona scheme (an argument that Mr. Waxman confined to about three pages of his brief).  But the argument that the Arizona legislature is not the Arizona legislature when it comes to redistricting  strikes me a sure loser.  I wonder how Mr. Waxman persuaded himself otherwise.

Larry Rosenthal
Chapman University Fowler School of Law

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.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: 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.]

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election
---------------------------------------------------------------------------------------
 This email has been scanned for email related threats and delivered safely by Mimecast.
 For more information please visit http://www.mimecast.com
---------------------------------------------------------------------------------------

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150302/f126abe1/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: 115030216500900233
Type: image/png
Size: 9617 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150302/f126abe1/attachment.png>