[EL] Rohrabacher-Lowenthal bill

[Derek Muller]

Apart from the modestly-interesting point that the metadata indicates this
bill was first drafted on March 18, I think this bill could cure the
problems created by virtually any decision issues in the Arizona
redistricting litigation, with some important caveats.

Marty, I think Mr. Clement's point rested on whether any body could ever
delegate the power to an independent commission--and if the legislatures
could not do it, then Congress could not do it. But I think there's still
some room in most resolutions of this case for Congress (or a state
legislature) to *ratify *what might become an *effectively *advisory
committee--I think few on the Court (or even Arizona) would argue that the
state legislature could not create an advisory (even influential!)
redistricting committee under the Elections Clause. (But perhaps you're
right that there's a different issue at play here.)

That said, it also has small incidental impacts on the powers that these
six states have. For instance, Washington authorizes the legislature by a
supermajority vote to reconvene the commission mid-decade for another
redistricting; this bill would take that power away from the Washington
legislature and commission.

Furthermore, I wonder whether subsection (b) is well-advised given the
Supreme Court's "equal sovereignty" rationale in *Shelby County*. That is,
why is it that most State Legislatures get to draw redistricting lines, but
(up to) six states who had the unfortunate and fortuitous occurrence of an
unconstitutional (or, at least, potentially unconstitutional) delegation of
authority to a redistricting commission no longer retain their
constitutional legislative power to redistrict through the year 2020? To
paraphrase from *Shelby County*, "While one State waits [five years] to
implement a validly enacted law, its neighbor can typically put the same
law into effect immediately, through the normal legislative process."
Perhaps a global Congressional mandate under the Elections Clause adopting
all maps adopted on the first day of the 114th Congress would better avoid
such a problem--even if it's much stronger medicine.

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy

Malibu, CA 90263

+1 310-506-7058

SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller

On Fri, May 22, 2015 at 9:13 AM, Marty Lederman <lederman.marty at gmail.com>
wrote:

> 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
>>
>>
>>
>>
>>
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150522/778e6a14/attachment.html>