Cross-posted to the electionlaw and conlawprof lists:
Reaction after a quick read of the complaint filed in the US District Court for the Southern District of Florida:
One of the claims in the complaint is that Art. I, sec. 4, cl. 1 of the US Const. grants the Florida legislature the power to draw the district lines (subject to override by the US Congress per the explicit terms of the clause). Thus, it is claimed, the Fla. Constitutional Amendment dealing with redistricting (and requring the legislature to follow guidelines set out in the amendment) improperly interferes with power delegated by the US Const. to the Fla. legislature.
This is a reprise, but in a crucially different context, of the argument accepted by the concurring Justices in Bush v. Gore. We had a very active discussion of that argument on the conlawprof list (thus the cross-posting of this email to that list). I took the position that state legislatures have plenary power under Art. II, sec. 1, cl. 2 to determine the manner of appointment of presidential electors, and that the Fla. Const. (and in particular the Fla. S. Ct.'s view of the requirements of the Fla. Const.) could not limit the Fla. legislature in the exercise of that plenary power given directly to the legislature by the US Constitution.
The question ended up to some extent being how to reconcile three S. Ct. decisions: Smiley v. Holme (1932), Hawke v. Smith (1920), and McPherson v. Blacker (1892). (I suppose we could include Davis v. Hildebrandt (1916) as well, as discussed below.)
Smiley held that redistricting under Art. I, sec. 4, cl. 1 was a lawmaking function under which the state's apparatus for making law was controlling; thus a governor's veto of a redistricting bill was effective. The reference in I, 4, 1 to "legislature" was a reference not to the legislative bodies in the state government but rather to the state's lawmaking apparatus as set up in the state constitution. Thus the legislature did not have plenary power to redistrict but only the role assigned by the state in the making of law. (Arguably that resolves the current Florida legislation in favor of the new amendment, but see more below.)
Hawke held that a state constitution could not require that proposed US constitutional amendments be put to a vote of the people of the state; under Article V a proposed constitutional amendment could be ratified by a state in only two ways, either by a vote of the legislature or by a convention. Legislature means legislature in that context, not the state's lawmaking apparatus.
McPherson held that a state's legislature has plenary power over the manner of appointment of presidential electors. (Prof. Bryan Wildenthal and I had a vigorous debate on the conlawprof list over the interpretation of McPherson, and I think it's fair to say we ended up agreeing that it recognized the legislature's plenary power.)
Some of us argued that the Florida Supreme Court (relying on its interpretation of the Fla. Constitution) was departing from the Fla. legislature's statutory scheme for choice of presidential electors. A key question then in Bush v. Gore seemed to be whether choice of presidential electors was more like ratification of a constitutional amendment (in which case the state constitution could not limit the legislature's role per Hawke) or more like redistricting (in which, per Smiley, the state's lawmaking mechanisms were recognized even if the legislature's role were as a result limited). Smiley involved procedure only; the state legislatures were not to choose the members of Congress but only set up the procedures under which voters could choose them, and Congress could even override the state laws on the subject if it chose to do so. Hawke involved substance only; to the extent conventions were not used for ratification, the substantive decision as to whether to ratify or not was granted to the state legislature. The presidential elector question had elements of both; the state legislature could set up a process in which someone else would make the substantive decision (by providing that the manner of appointment of electors would be by vote of the people), but the state legislature also could make the substantive choice itself, as the Court in McPherson (and I think also in the Palm Beach County case during the 2000 election dispute) recognized. McPherson seemed to put the choice of presidential electors clearly on the Hawke side rather than the Smiley side.
In any event, the redistricting at issue in the current Florida lawsuit seems to be controlled by Smiley. As part of its reasoning (though I suppose you could argue it was dictum), the Court in Smiley noted that the state lawmaking function (which is what the term "legislature" means in I, 4, 1, according to the Court in Smiley) included the referendum process, under which a state constitution could make a redistricting scheme subject to a vote of the people by way of referendum. The Court analyzed Hawke and also Davis v. Hildebrandt (US S Ct. 1916) to reach that conclusion. The initiative process in Florida seems also to be part of Florida's lawmaking scheme.
I suppose there are only two remaining questions: (1) Is there a relevant difference between a referendum on a redistricting law and an intiative that prescribes the way in which redistricting should be done? (2) Should the Supreme Court revisit the Smiley analysis of these issues? Of course the District Court for the Southern District of Florida is not in a position to revisit the Supreme Court's Smiley analysis, unless it boldly treats the analysis as dictum.
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law