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

[Larry Levine]

Seems I remember that the IRS has long looked at the voters as the legislative body in determining that non-profit organizations can spend a portion of their funds on lobbying and that in the case of initiative petition campaigns that includes lobbying the voters on the issue. 

Larry

 

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Trevor Potter
Sent: Monday, March 02, 2015 3:21 PM
To: Rosenthal, Lawrence
Cc: conlawprof at lists.ucla.edu; Election Law
Subject: Re: [EL] Most surprising remark in today's oral argument in the Arizona redistricting case

 

Arizona has adopted a system where the power to make laws, including regulation of redistricting, resides with the representational legislature until and unless the citizens as legislators decide to take it on themselves ( as they did here). The redistricting commission is not a legislative body itself-- because as Paul Clement stated today the "legislature" may act to delegate all of its redistricting authority to such a commission. The question in the case is whether the legislature did so in Arizona-- which gets you back to the definitional argument over how broadly to read " legislature"...

Sent from my iPhone

On Mar 2, 2015, at 5:08 PM, Rosenthal, Lawrence <rosentha at chapman.edu <mailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu> <mailto:rosentha at chapman.edu>> wrote:

So I suppose that that, on the Waxman/Lederman view, we are meant to understand that Arizona has two legislatures – the people of Arizona are somehow “the Legislature thereof” for redistricting, and the legislature of Arizona is “the Legislature thereof” for everything else? Actually, however, on this view there must be three legislatures, because the redistricting commission also plays a role in determining “the Manner of holding elections” within the meaning of the Elections Clause (at least if one agrees that the “manner” of holding elections includes the methodology for determining district boundaries). But even if we accept that the argument in defense of the Arizona scheme requires only two legislatures in Arizona, it’s still an awfully tough sell, isn’t it? Isn’t the whole point of the initiative process not to leave the entire lawmaking process in Arizona to “the Legislature thereof”? It seems to me that only a result-oriented lawyer could persuade himself that the initiative process is created a second legislature in Arizona, rather than divesting “the Legislature thereof” of some of its power.

Larry Rosenthal
Chapman University Fowler School of Law

From: Trevor Potter [mailto:tpotter at capdale.com]
Sent: Monday, March 02, 2015 1:50 PM
To: Marty Lederman
Cc: Rosenthal, Lawrence; Election Law; conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu> <mailto:conlawprof at lists.ucla.edu>
Subject: Re: [EL] Most surprising remark in today's oral argument in the Arizona redistricting case

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%3cmailto:lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com%3cmailto:lederman.marty at gmail.com> <mailto:lederman.marty at gmail.com<mailto:lederman.marty at gmail.com%3cmailto: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%3cmailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu%3cmailto:rosentha at chapman.edu> <mailto:rosentha at chapman.edu<mailto:rosentha at chapman.edu%3cmailto: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%3cmailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu> <mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu>> [mailto:conlawprof-bounces at lists.ucla.edu <mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3e> <mailto:conlawprof-bounces at lists.ucla.edu>]<mailto:[mailto:conlawprof-bounces at lists.ucla.edu%3cmailto:conlawprof-bounces at lists.ucla.edu%3e]> 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%3cmailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu%3cmailto:conlawprof at lists.ucla.edu> <mailto:conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu%3cmailto: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.]

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