One More Thing on Redistricting . . .

The Court has held that a state can use a referendum as part of its redistricting process.  See Davis v. Hildebrandt, 241 U.S. 565 (1916).  In Davis, a referendum was used to reject a redistricting plan drawn up by the Ohio Legislature.  Thus, one cannot say that Article One, Section 4 prohibits states from using a referendum to limit the Legislature in this context.  Maybe the Legislature must be the one to draft the redistricting plan–the difference in the Arizona case is that the Legislature is not permitted to draft anything.  But clearly the Legislature does not have the exclusive power to redistrict or the final say over redistricting.  Is drafting really so different?

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2 Responses

  1. Joe says:

    ” It must rest upon the assumption that to include the referendum in the scope of the legislative power is to introduce a virus which destroys that power, which in effect annihilates representative government, and causes a state where such condition exists to be not republican in form, in violation of the guaranty of the Constitution.”

    Nice turn of phrase. Yes, I think there is a strong to be made that the power to draft is significant, even if a veto (by the governor or the people) or maybe even (harder case) strings on the drafting beforehand, since it is more substantive in character. The power to draft legislation in Congress is significant and specially “legislative” even if the executive can veto. If the executive actually drafted, it would be different. An agency that is the product of legislation, including a restricting agency, would be a harder case.

    The opinion from a century ago need not be deemed the be all, end all. Anyway, seems there is some talk of a non-justiciable question in there.

  2. Joe says:

    ” It must rest upon the assumption that to include the referendum in the scope of the legislative power is to introduce a virus which destroys that power, which in effect annihilates representative government, and causes a state where such condition exists to be not republican in form, in violation of the guaranty of the Constitution.”

    Nice turn of phrase. Yes, I think there is a strong case to be made that the power to draft is significant, even if we allow a veto (by the governor or the people) or maybe even (harder case) strings on the drafting beforehand, since it is more substantive in character. The power to draft legislation in Congress is significant and especially “legislative” even if the executive can veto. If the executive actually drafted, it would be different. An agency that is the product of legislation, including a restricting agency, would be a harder case.

    The opinion from a century ago need not be deemed the be all, end all. It might be, as suggested overall, give strength to certain strings, but the current plan seen as too novel, not backed up by history. [if there are two comments, first can be ignored]