[EL] Rohrabacher-Lowenthal bill

[Marty Lederman]

If the Court declares the AZ map invalid (which is by no means a sure bet),
and if Congress were to enact this law, it would almost certainly be
challenged on constitutional grounds.  In his briefs and argument to the
Court, Paul Clement argued that "[w]hatever power Congress has under the
second subclause of the Elections Clause, it does not include the authority
to
override the first subclause. . . .  [A federal] law authorizing States to
deprive state legislatures of their constitutionally-conferred role in
prescribing
regulations for congressional elections and redelegate that authority
elsewhere would be [a] palpable violation of the Constitution."

I tend to think the question of limits on Congress's "second subclause"
power is not nearly as clear-cut as Paul suggests; but I think it's fair to
say that if the Court rules against the AZ law, this legislation
*might* preserve
the Commission's districting map . . . or it might not.  (Of course the
Court itself might say something in its opinion to clarify the scope of
Congress's power that could greatly affect the analysis and point either in
favor or against Congress's authority to, in effect, ratify and instantiate
otherwise unconstitutional commission-drawn maps.)

Thoughts?

On Fri, May 22, 2015 at 11:49 AM, Dan Vicuna <DVicuna at commoncause.org>
wrote:

>  Hello everybody,
>
> The Rohrabacher-Lowenthal bill defending Congressional maps drawn by
> independent commissions is attached.
>
> Dan
>
>
>
> Dan Vicuna
>
> National Redistricting Coordinator
>
> Common Cause
>
> Phone: (213) 623-1216
>
> Twitter: @DanVicuna <https://twitter.com/danvicuna>
>
> www.commoncause.org/redistricting
>
>
>
>
>
>
>
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