Interestingly, this was the argument used by the MS
federal court to enjoin the state court's plan in
favor of its own plan in Smith v. Clark, 189 F.
Supp.2d 548, 556-58 (S.D. Miss. 2002).

The court noted: “Although the constitutional
provision may not require the state legislature itself
to enact the congressional redistricting plan, the
state authority that produces the redistricting plan
must, in order to comply with Article I, Section 4 of
the United States Constitution, find the source of its
power to redistrict in some act of the legislature." 

The federal court failed to find what it was looking
for in the state constitution, though interestingly,
the MS Supreme Court had already held that the state
lower court *did* have jurisdiction, a fact which the
federal court found to be insignificant.

On appeal, the Supreme Court entirely ducked the
jurisdictional question and affirmed the lower court
on other grounds.  Branch v. Smith. 123 S. Ct. 1429
(2003).


--- Michael McDonald <mmcdon@gmu.edu> wrote:

I've often mused that a strict interpretation of
this clause in the federal
constitution would mean that roles for governors and
the creation of
commissions would be unconstitutional for
congressional redistricting,
unless the state legislature had a role in the
formation of the law or state
constitutional amendment to alter the process from
one of complete
legislative control.  (I suppose that if the
legislature played a part in
the creation an initiative system, that could be
argued as the legislature
having a "role" in the creation of a constitutional
amendment changing the
process though an initiative.)  I've never seen this
claim made in
court...perhaps someone has?

As a bit of triva, only North Carolina places
responsibility solely in the
legislature.
  -----Original Message-----
  From: Roy Schotland
[mailto:schotlan@law.georgetown.edu]
  Sent: Friday, December 05, 2003 2:03 PM
  To: Steven Mulroy
  Cc: Michael McDonald; election-law
  Subject: Re: Colorado Redistricting Decision


  Isn't there a federal issue on whether Art I, Sec
4 (Times, Places and
Manner) empowers only the state legislatures, to the
exclusion of a judicial
action like the Colo SupCt's?
  Steven Mulroy wrote:

     How can the Republicans appeal to the Supreme
Court if the Colorado Sup
Ct decided the case based on the Colorado
Constitution?  Is there a federal
issue lurking here?

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