That’s a 1910 publication. It defines how the word “legislature” was understood when the Arizona constitution was written, not the US constitution.
The framers of the US constitution were skeptical of direct democracy. That’s why they put in structures like the electoral college. If any of them are looking down on us here, they must be kicking themselves for not putting into the constitution a definition section.
Yes, because the Supreme Court wouldn’t dare to overrule such a strong super-majority.
In this scenario, maybe they would overrule. But there’s only so far ahead of public opinion that you can expect the court to go.
Absolutely true. What the people of Arizona should have done, and what people of other states should do, is demand that districts be drawn by computer algorithm. One good way to do it is to require that a map be produced where districts of equal population are chosen, in such a way that the total length of boundaries between districts is as small as possible.
But we don’t want districts drawn by algorithm. We want districts drawn with reference to existing dividing features, municipalities, counties, and so on. We just don’t want them drawn to ensure easy Republican or Democratic wins.
Computers can be told to attempt to take into account those existing features. Or humans can be brought in to make those adjustments after.
The whole idea of districts is to group people with common interests, so some human judgement probably is needed anyway. Actually, I believe SCOTUS has determined the Constitution requires single-member districts, but I think it would be better in this regard for all of New York City to be a single district, with 12 (or however many) members, and similarly for Los Angeles, Chicago, Houston, and other cities with more than two or three districts under the current system.
I heard the oral arguments on this and I have to say I’m very disappointed in how the Constitution was rewritten to say what the justices want to say. It is clear in the U.S. Constitution that a certain group of elected officials i.e. the state legislature has the power of redistricting. Can the legislature delegate that power to someone else? Sure but that didn’t happen in this case. The Legislature did not delegate any power, it was seized through the initiative process which was built into the Ariz. constitution. Just reading the decision I notice a few things.
We upheld the use of the referendum in *Hildebrandt *and the veto in *Smiley *so obviously the initiative fall in the same category as “legislative process”. The decision completely ignores Arizona’s argument that Hildebrandt and Smiley are fundamentally different because this case left out the State Legislature completely which seems a clear violation of the US Constitution.
A huge emphasis on “the manner provided by the laws thereof”. Arizona argued that the initiative process did not exist when the Constitution was adopted and it was very clear that just focusing on that part in this modern age with the initiative would basically eliminate the clause giving the Legislature the power i.e. rewrite the Constitution and letting “the state” choose whatever laws it wants. Now most of the time it would be the Legislature delegating its power which is OK but this is one of the times where the power wasn’t delegated.
In the last section (c), I have a real problem with #s 2, 3 and 4 and I’m a state-right advocate. #2 allows the state to define the terms of the US Constitution however they want. I wonder then if SCOTUS is willing to interpret the 2nd Amendment according to the state’s definition of “militia” because in some states the militia is defined as every man age 18 or over. Can a state now redefine “interstate commerce”? #3
But that’s not what the Election’s Clause said. It didn’t say “the manner provided by the People thereof” or even “the manner provided by the State”. It specifically gave the power to the Legislature which Arizona repeatedly demonstrated is meant to be an elected group making the laws. #4 )
I absolutely hate this argument. We can’t rule something unconstitutional because then a whole lot of other laws would have to be thrown out. IIRC a poster in a thread on *Wickard *used the same argument that although it was a bad decision we need to keep it otherwise a lot of other laws would have to be thrown out. I notice that no one ever applies that logic to Brown v. Board. Hey we know segregation is unconstitutional but man I’d hate to have to throw out a century of laws simply because they are unconstitutional.
I also hate the tone of #4 that seems to dismiss the Constitution because it doesn’t serve the purpose the justices think it should serve.
During oral arguments drawing on the demarcation between the two in the text of the Constitution. The counter was the way the election law was written in 1911 effectively removing the legislature as a body and merely referring to the laws of the state as upheld in Hidebrant.
That is a tough one. SCOTUS had said (I forget the case) that in regards to amending the Constitution under Article V, the President plays no role and is not required to sign it nor can he veto it. It is also implied in Bush v. Gore that the Legislature could unilaterally choose electors if that’s how the state law is written and it would not go through the “legislative process”. So there is precedent that not everything a Legislature does under the auspices of the US Constitution needs to jump through all of the hoops. Arizona in oral arguments gave SCOTUS a couple of outs.
If the State Legislature chooses to use the built in legislative process i.e. passing a law as per their procedure then the whole process applies and Hildebrant(referendum) and Smiley(veto) take effect. But those cases have the Legislature as an integral part of the process, here the Legislature was completely removed so those cases do not apply.
While passing laws under the initiative process may not meet the standard of the Election Clause, a state can give de facto consent by not opposing it in court. I believe it was Ginsburg that was asking questions about this and Arizona’s response was ignored in the decision.
So to answer your question, the particular cases were ruled on correctly but the interpretation and applicability to this case are incorrect. Also, I believe that while Hildbrant and Smiley are good case law, a State Legislature can still unilaterally create the district provided they do not violate any state law.
To me that seems like precisely the problem. A self-selected sub-group of Americans (Arizonans) has been permitted to decide for themselves how a provision of the US Constitution applies to them. Suppose, for instance, the Arizona state constitution contained a unique definition of “citizen”?
I don’t see how the legality of the initiative process has any relevance to whether it falls within the Elections clause.
[QUOTE=Constitution Article III, Section 2, Regarding U.S. Senate]
if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature,which shall then fill such Vacancies.
[/QUOTE]
So, if McCain would keel over tomorrow, and the Arizona people are in recess, the governor may make an appointment until every person in Arizona comes together and meets?
Or is this just another results oriented opinion? Come on, RNATB, you know that there is a difference between a legislature and the populace. Surely, you can’t deny that. We’ve usually disagreed, but your rationale has been good. This opinion is garbage.
Because the Constitution specifically gives the Legislature the power to make the districts and the initiative process excludes the Legislature from the process.
Right, but the Court suggested that its prior ruling upholding the legality of the initiative also supported the ruling that the initiative counts as the legislature for purposes of the Elections Clause. That’s what I don’t understand.
SCOTUS has been clear that they high court is under no obligation to accept a state’s interpretation about what the people are entitled to do. They declined to do so in Hollingsworth v Perry. The state of California had stated that one group of private citizens had standing to defend a law. SCOTUS said not in the federal court, only the elected officials had such standing.
Now for the high court to turn around and say that the people have a right to implement redistricting because the state says so seem to fly in the face of their prior views.
The “people as legislature” is not a republican form of government. It is a direct democracy similar to the Athenians.
Does this mean that a state initiative process is unconstitutional? No, because in most states, the legislature can amend or otherwise repeal popular initiatives. Ultimate lawmaking authority rests in the legislature. In Arizona, the legislature is powerless to overturn this committee.
Also, the very fact that most every poster, including you, are able to use the terms “people” and “legislature” with relative ease and without confusion as to who were are discussing very strongly implies a well-recognized difference between the two.
But the Court was not construing the state constitution. If “legislature” as used in the Elections Clause encompasses referenda, then it is difficult to see why “Congress” as used in Article I should not do so as well.
Alternatively, if a group of people in one state are permitted to vary the meaning of the US Constitution’s use of “legislature,” then why can’t a state similarly adopt its own definition of “citizen,” “due process,” or “marriage”?
If Arizona had tried to do away with representative government entirely, I would agree with you. It’s clear, however, that some level of direct democracy is constitutionally permissible or we wouldn’t have voter initiatives in the first place.
No one is arguing that the initiative is unconstitutional. What we are arguing is the interpretation that the people under the initiative processes are the Legislature discussed in the Elections clause.