Date: March 2nd, 2015 6:06 PM
Author: Nubile Racy Kitty Cat Gas Station
JUSTICE SOTOMAYOR: That's sort of hard to understand because we made it very clear in Smiley and in Hildebrant that we're defining legislature in this clause as meaning legislative process.
MR. CLEMENT: With with all due respect, I disagree.
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JUSTICE SOTOMAYOR: And if a State constitution says that the people hold the power and they can choose a commission or however else they want to do it, isn't that the legislative process?
MR. CLEMENT: No, it's not. But, I mean, I disagree with you, Justice Sotomayor, but that's not particularly important.
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MR. CLEMENT: I think they would have the power to do an initiative. I don't think they would have to do the power to do a referendum.
One of the ironies is that my friends on the other side like to talk about the power of the people, but the maps that the commission promulgates are not subject to override by referendum the way the maps of the legislature were before Proposition 106 passed.
So I think all the legislature could do is what any citizen should do which is to propose an alternative map by initiative process. But whatever that is, that's not the primary power to prescribe congressional districts or to make election regulations. That puts the State legislature on the same plain as the people, and we know --
JUSTICE SOTOMAYOR: So please tell me --
JUSTICE SCALIA: Do I understand you to say that it would be okay if the legislature itself established this commission?
MR. CLEMENT: I would I would take the position that that is okay because that is a delegation of authority. If you disagree with me, I mean, you know, you may disagree with me, but I think my position is consistent with what this Court said in the McPherson case about the authority of the State legislatures to prescribe rules for electorates. They can delegate that to some commission and come up with it that way, but if they want to take the authority back, as they did in the in the Michigan piece of legislation at issue in McPherson, you bet they can do that, and if the State tries to stop them from taking it back, that's a constitutional problem.
JUSTICE SOTOMAYOR: So --
JUSTICE KAGAN: So tell me, Mr. Clement, there's the State sets up this independent commission and the independent commission has a veto power on the State's redistricting. In other words, the State can do redistricting and then it submits it to the independent commission, and the independent commission can say, No, go back, do it again.
MR. CLEMENT: Well, if I mean, I guess it depends a little bit on the details of how that works and whether who's got the ultimate last say in the matter.
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-1314_q8l1.pdf
(http://www.autoadmit.com/thread.php?thread_id=2821044&forum_id=2#27418305)