Transcripts For CSPAN2 Key Capitol Hill Hearings 20240622

State legislative boundaries. After the 2010 census the Arizona Redistricting Commission through mounds the republicans allege were stacked against them. The them. The independent number, the tiebreaker an average citizen cited with democrats to pass a map that maximize the number of competitive seats. If you were to draw a map that simply incorporated a regular shape at random you probably end up with a republican leaning map in arizona but a top democrat that had had he have the advantage. Republicans who up to occupy the state legislature they took it all the way to the Supreme Court because they argue that independent redistricting commissions are not constitutional. After all, the election clause of the constitutions is the constitution says the manner and place of elections shall be determined by each state and the legislature thereof. The Supreme Court had to wrestle with whether to interpret this on a a strict basis or lose basis. What the majority decided Justice Ginsburg wrote the majority opinion by Justice Kennedy but Justice Kennedy presiding the key swing vote for a five for ruling was to interpret this loosely. These commissions are an allowable tool to combat partisan gerrymandering when it becomes a problem. Lets take a quick look at this. Debbie wasserman mentioned, article one section four of the constitution, the constitutional issue a in question for the Supreme Court, the clause saying the times and places and manner of whom the elections for senators and representatives shall be prescribed in each state by legislature thereof the congress may make or alter such regulations except as to the places of choosing senators. How many states use these commissions in the case of arizona how long has not been in existence connected that come about by the Legislature Making this commission or the citizens . Account about by referendum. There are a couple other states with similar practices. There are seven states that have commissions responsible for Congressional Redistricting and 36 states the legislature is responsible and seven states only have one member of congress and so dont need to redistricting congressional wives. But arizona and but arizona and california are the two states that have passed commissions that are truly independent and passed them by referendum. Referendum. I should say not even arizona is entirely independent because state legislators are responsible for appointing four of the partisan commission and they have to appoint a tiebreaking member. This really really have a potential to massively affect arizona politics as well as california. The Supreme Court had argued that they were allowed to bypass state legislatures through referendum setting of commissions than it could have thrown these maps back to the drawing board, back to partisan led state legislatures. Republicans could have added several more seats democrats could have added several more seats. And it would have continued the pattern that we see in the majority of states which is that the partisans in charge of the process really maximize their own opportunity. Artificially inflating their edge in a congressional delegation or the state legislature by massive proportions. Any indication. Any indication that this decision will lead other states to creating these independent commissions . That is the key question. This is a victory for reformers, reformers no doubt about it. Is no guarantee of future success. Even though we do have seven states that import commissions it is worth noting that not all of them end up producing maps to produce competitive elections. Example is in new jersey are essentially both parties have a certain number of appointees. There is a tiebreaking number that takes one partys map of the other. You do end up with a partisan map. In new jersey we have not seen a lot of competitive Congressional Elections lately. And so the question is how many states have the willpower to kind of bypass partisan legislatures, how many have the rules in place to allow referendum to what voters decide, and then who will find these efforts from state to state in time for 2020 . Now, of course democrats course, democrats are at a big advantage when it comes to maps across the country because they had a terrible election right after the 2010 census. Republicans got a chance to chance to draw four times as many Congressional Districts is democrats. And so it is a lot of democrats right now pushing for this Good Government reform law or so they say. And so democrats have to be careful not to let this come across at a partisan agenda to pass a lot of similar commissions and other states when in reality they know that there would be at a disadvantage with the status quo. David wasserman is our guest with the Cook Political Reporters talking about the arizona decision but more broadly redistricting issues in states and states across the country. 7. 8000 is the number to call send us a tweet. In the case of arizona any indication of who this benefits in terms of members of the house in the state . There are a couple of winners in this decision. I would argue i would argue the biggest one is a congressman from just outside phoenix. A democrat who was first elected in 2012 when a district was created. Arizona gained the ninth seat in the census. That district was drawn as a competitive district a competitive district operating in tempe in parts of scottsdale. She ran for that seat and wanted as a democrat has been able to hold it. Had republicans been able to draw that district to their liking, you can be sure that district would be very inhospitable for democrat. And so under the current map that has been effectively preserved she has a good shot. It should also be said the republicans in california at risk of losing their seats for particularly republicans in areas of the Central Valley could have been at risk had democrats in sacramento been able to undo the california commission. And so in terms of the partisan advantage, i think there are democrats who are pretty happy with what this potentially does with our efforts. In terms of the immediate political benefits my think its a pretty even affect. In the dissenting opinion they had a lot of objection, a lot of objection to the expanding of the term legislature in that part of the constitution. Understandable. It seems pretty explicit and the constitution that this is an issue for state legislatures to deal with. Of course it is difficult to imagine that the framers could have anticipated the kind of sophisticated gerrymandering that goes on and states all across the country these days pop particularly with the levels of Political Polarization that we are seeing geographically. It is easier than ever before for mapmakers with sophisticated gis applications to separate voters in the likeminded districts. And so according to our index the number of competitive prices declined 45 percent in just the last 16 years. And could any of that be because of that redistricting . Well, several things are at play. First of all, more americans are choosing to live in communities where their neighbors i agree with the political perspective value. And so value. And so we see far more landslide states and districts and communities that we did in past years. That also plays that also plays into the hands of mapmakers who have a partisan agenda. I want to maximize their own number of safe seats and minimize the other partys number and really dont want to create competitive seats were it creates uncertainty when they have to spend money to win the. We have seen those two trends work in concert to diminish the number of seats that have any kind of uncertainty. Is there any state that has the best system, the best model for redistricting . A lot of reformers would hold up iowa as a state that has a process again to what god would do if you were in charge. Iowa has a legislative services bureau, essentially a state office. It is independent from the legislature, nonpartisan staff. They are in charge of drafting maps for congress and the state legislature and minimize the variance between most populous district in the least populous district. The congressional maps do not split counties. So they try and come up with a configuration that balances interest. And then and then the legislature has the authority to reject the map. Traditionally in iowa the legislature has embraced that map. And i will you have pretty clean lines. Of lines. Of course iowa does not have a minority protection consideration that other states have to take into account. Also has pretty also has pretty square counties and there is not a lot of jagged lines for mapmakers to overcome. What is applicable what is applicable in one state is not necessarily applicable on another. David wasserman our guest we go to florida. Welcome. Clicks hello. Goahead quakes yes. Very many good points about the districting. The fact it is that many of our citizens are not educated enough to understand the ramifications of the process. And really the problem is a lack of education understanding how legislators manipulate and take it to their advantage the roles. Is education an issue . The caller raises an excellent point. This is the ultimate issue. Issue. It is hard to get voters to care about things that are esoteric like campaignfinance reform redistricting. And yet they are critical for understanding how we elect our members of congress at the state legislature up and down the ballot. And so the challenge for advocates of redistricting reform from state to state is to convince a flock of voters that the system as currently stands is rigged against them and to be willing to pass a set of reforms over the objections of most it legislators who do not want to give that up. This may be a bit agree on the scope of your reporting. Remind us the year. Typically what is typically what is the election pitch . Why is that needed . Why the supporters say we need this commission versus the legislature determining . That is another excellent question. Several decades ago arizona voters decided that they wanted someone other than the state legislatures to determine the districts that they would be running in. I think they were powerful oneliners. You know, voters should choose the politicians rather than politicians choosing their voters. That has that has been an effective line for many advocates of reform. Arizona has a pretty robust referendum Ballot Initiative process relative to other states. And that has benefited reformers. Not all states have that kind of process in place. Was this the first on the court had addressed the legitimacy of these types of organizations . Clicks it was. You know, i think this really came to a head because you could. To the past Commission Maps that were put in place in arizona or another states where both parties had some wins and losses. In this case democrats effectively got what they wanted. Republicans were upset because they have majorities in the legislature and they also how the governorship. They felt as long as the commission was drawing a map that they saw as favoring democrats it was sporting. Clicks democrats line in brooklyn clicks good morning. How are you. Fine, thanks. Good. Glad to good. Glad to hear it. Interested in inquiring with your guest if there is any impact on redistricting as far as enabling or concerned what does that affect gerrymandering . Im sorry clicks adducing enabling . We enabling as far as for in states that are more or less allowing or believe that there is a benefit to having sort of level of various different classes and groups of people that can come into a neighborhood and essentially just kind of live there. If that is a kind across america like i know i know it is im not sure at what particular rate does it then start to have backed gerrymandering or redistricting in general. I am just inquiring if you believe it may have an impact in the future as to how the lines are drawn on the map. Well, well, i think the efforts of various planning boards across the country has been played up mostly in urban settings when democrats have strong majorities. One of the problems facing democrats is that voters are increasingly clustered in urban settings. As long as as long as they are they are naturally at a disadvantage because republicans can simply draw a line around the city course and preserve the district for themselves. A story that came out before the Supreme Courts decision. Federal decision. Federal judges bring virginia one step closer to a new congressional map. This is early june. Virginia lawmakers illegally concentrated africanamerican voters in the one Congressional District. Bringing this data step closer to being forced to redraw its election map. The court of the Eastern District of virginia affirmed its earlier decision that they wanted a costly and timeconsuming process that would force the General Assembly back to richmond. Any word on that happening . I am glad. Commissions are not the only litigated area of redistricting right now. We we are turning our attention to this virginia case that the article raises democrats know that they are not just suffering from commissions. They are suffering from the fact that republicans have particularly in the south advocated for maximizing the number of africanamericans in each black majority district because of course the more africanamerican voters there are in one district the fewer there are another. In virginia where this case is playing out there is one africanamerican majority district which stretches along the james river the Hampton Roads area after richmond. Bobbys got district. And all surrounding districts five neighboring republican districts appreciate the republican. Democrats in the state believe that if black voters were more evenly distributed across those districts the democrats would have a chance at one or two more districts. Districts. And so republicans claim that this was a partisan gerrymandering effort. In essence saying, we didnt draw this map motivated by race. We drew it we drew it motivated by our own partisan interest basically admitting to a baldly partisan plan. Of course you know the threejudge panel and in virginia has said, no, this was racially motivated. You need to go back and draw new map. In Virginia Republican in Virginia Republican legislature and a democratic governor. And so this could place the court in an awkward position of having to draw a new map which is not unprecedented. We have seen plenty of courts draw maps, maps but it is not a job at the typically like clicks no matter how they redraw the map what constitutional mandate does a legislature have in the size of that district . Based on population . Clicks based on population which is pretty wellestablished in Court Decisions that you have to draw districts that are equally populous at the congressional level and typically tend to be down to the person. Somehow set of that requirement is going a a little bit overboard and that you should have a little bit of leeway so that you can and preserve the integrity of localities. At the state legislative level that tends to be some level of allowable variance clicks the state legislative. The state legislative districts. And that is all based on the ten ten year census. Right. All districting must be based on a ten year census. There is a texas case that the Supreme Court has injury to have agreed to hear brought by plaintiffs that argue that the account we used to determine districts should be based on eligible citizens not all people counted by the senses which is all of animal. The District Of Columbia does not have Congressional District. Go ahead. Clicks good morning. I i am glad you read that article from virginia. Mr. Wasserman decided that the republicans stated that their districts are drawn primarily on population and not race. Im 60 years of age and have always are my parents, my aunts and uncles talk about how they were denied access to certain immunities. They were not able to move. Blacks have blacks have been concentrated in the cities. They had been because they were not allowed to move in the suburbs. And that has been for decades. That is why most of the districts of mostly white and very few blacks exist there. I do think there needs to be away to not allow both the democrats and republicans, both parties play this game will not allow them to draw those districts not upon race but upon who is there and the income and etc. We need to find a better way to do this or we will continue to have the same people elected to congress who dont want to represent my. Of view. Well, this is a thorny subject. It is impossible to separate partisan motivation from racial consideration in the redistricting process in states where you have a fairly a fairly dispersed minority population which includes a lot of states across the south. And what africanamerican politicians really have to decide, particularly africanamerican democrats is whether it is worth preserving these hyper majority minority districts have a sense of democratic chances of winning districts across the country. They see this pattern across the south of only one africanamerican majority district in states like virginia, South Carolina, mississippi, alabama, and in the command in the rest of the districts are safe the republican that no other minority candidates really have a chance outside of those particular districts. And so this has been an area where it has been a case of a case of strange bedfellows. Some africanamerican democrats and white republicans working together in the court to preserve these districts but of course, simultaneously benefits republicans who want to preserve an overwhelming share of seats in the south. A couple of comments on twitter. Arizona voters saw paragraph it did not reflect how we were moving in large numbers. The panel of nine is unbiased. All have Party Affiliations. Where can you find any unbiased members . An independent member of the board. Thats right. And how can you establish a process a process by which everyone is truly independent . You know, you cant really establish a truly separate process from the legislature unless you were to have a total lottery system which i think california has come the closest to doing. But doing. But in arizona you have a couple of political appointees two from each party on the board, and they decide affair fifth member. After 2010 they picked a healthcare administrator named colleen carl mathis. Democrats liked her because she was someone who eventually came around to the idea of maximizing the number of competitive districts which democrats ultimately benefited from. She described herself as a former a former republican. Republicans were open to the idea of appointing her but came to regret accepting on the board clicks after okaying the existence of this independent board the court is set to they are not done with the issue because the headline reflects that arizona districting panel to be revisited much less to decide for the court next term. Well, to my knowledge i think the arizona mathis fairly settled. We are we are looking ahead in terms of what the courts will decide. Racial racial considerations in the virginia map North Carolina map and the texas case are raised with regard to how exactly we determined to to count for purposes of creating equal populated districts clicks silver city new mexico. Mariana democrats line. Good morning. Morning. Thank you for being there. I have been watching a little bit of the activities with alec. Just our nationwide agendas that are implemented so well. And i am wondering. Wondering. I think alec may have changed their names as well. And this is the American Legislative Exchange council. Something like that. Yeah. They are very effective. I am just wondering what are their efforts either under alec are by their new name it will will just do all these various redistrictings which are crazy . What do you know about that . Well, alec is a conservative group dedicated to establishing best practices and drafting legislation for republicanled legislatures across the country. And you know, it is easy for democrats to kind of demonize alec because they hold conferences that are not necessarily public. They provide what democrats would call cookiecutter legislation that they can essentially just handoff republicans to pass. But when democrats have the opportunity to draw maps to their liking after past censuses they have taken the opportunity to draw creatively shaped districts as well. Even if republicans were able to lock in their majority after the 2010 census by drawing some pretty torturous shapes in states like pennsylvania, Michigan Democrats if you go back to the 1990s very effective and drawing some curious lines in places like North Carolina and illinois this time around which was democrats one big state that they had control of. They they do some pretty interesting shapes. Both parties are guilty. What is the most interesting or unusual district state shape that you can think of . Well, maryland start district has some competition clicks don adams district . Clicks john far banks. Stretching through an annapolis to even parts of the dc suburbs. The nickname suburbs. The nickname for that has been the upside down praying mantis. In the 2,000 illinois 17th district, northwest illinois was referred to as a rabbit on a skateboard. [laughter] the upside down see her chin district in pennsylvania. There are all kinds of shapes that seem to defy contiguity across the country. A wall on your office that looks . Absolutely. The map. David wasserman, David Wasserman, house editor for the Cook Political Report looking at the house map. Tell us map. Tell us about this method is largely shaded in red. What is this looking to . Well, you know, know, a lot of people would be fascinated to know that republicans hold 57 57 percent of the seats right now in the house but they hold 86 percent of the countrys land area. That is a High Water Mark for either party and speaks to just of concentrated democrats have become an urban settings. Pattern we see across a ton of states, that republicans have packed democrats into heavily democratic, urban districts, and preserved their advantages in suburban and rural seats. We have seen a pattern where republicans, whatever their share of the total vote have won 4 more seats. In, it was democrats who won 1. 4 million more votes than republicans for congress, and yet republicans won the house by 33 seats. In 2014, republicans won 53 of the twoparty vote for congress. And so democrats may be locked out until at least after the next redistricting. I have said i think democrats would be needing one of three things to happen to take back the house before that. Number one, they would need a Resettlement Program of their voters, which is not happening and number two, a form of broadbased redistricting reform , and the possibility is so alive or number three they need a really unpopular republican president during Midterm Election year like we saw in 2000 six look george w. Bush. That was enough to get democrats back into power. The first opportunity for that to happen was 2018. Host steve in Pennsylvania Republican line. Caller my question is if we took the registration for voting and took the Party Affiliation off of that, and take Party Affiliation off of all information for politicians, how do you think that would affect how they look at how they would want to set their districts . The only other comment i have is there was a person on yesterday on cspan talking about getting information out about unions, information on union dues for people who opt out if unions, it is not correct. You need to fact check your people just a little bit. Thank you. Guest the caller raises an interesting question. In nebraska, where legislatures in nebraska for several reasons it only has one chamber of the state legislature, but they do not have Party Affiliation. There is always some kind of partisan even if there is no label and with what republicans have done to control state legislatures it used to be the Third District of pennsylvania was one of the most competitive districts in the country. To split the county into two pieces so that democratic vote was broken down said it is pretty safe the republicans now. Host reviewer says it sounds like redistricting should be illegal. The founders were spared the to keep government from becoming a pure democracy with reactionary a motion and a ruling the day. Day you agree or disagree . We have never been able to take politicians personal ambitions out of the process altogether. As much as the framers would probably frown on the process we see now, i do not know if they would have been able to write any england to the founding documents that could have prevented what we see. Host part of the argument was the mid they thought they found the ultimate source for power, the people, and they brought that definition of legislature, correct . We go to missouri, john on and out john on our democrats line. Caller good morning. As long as humans are drawing these lines, there will always the partisanship involved. For someone to do Something Like this, take the population of each state and whatever population is located, feed it into a computer and let the computer divide up the state and the district. Take it out entirely and see what happens. I wish someone would do it here it seems so simple, and let the problem be solved by computers. Some of these silly districts you see around the country. I would appreciate an answer. I will comment about that. Thank you very much. Guest i am grateful for the question because it raises an interesting topic we were not talking about 20 years ago. We are at the level of capability that computerized redistricting is possible. Many political political scientists and mathematicians have drawn of algorithms that demonstrate what lines could look like if a computer were simply to draw a map. It is not easy to simply impose a map with a bunt a bunch of Straight Lines on it with normal shapes. Of course, our elections are administered at the local level and lets face it, a lot of our political subdivisions that exist have jagged down trees and curious shapes. Those shapes are probably more like he to be respected by humans looking at a map than by computers. And yet, is it possible for computers within our lifetime to take over the process . I think we are probably at that stage. But i would also say it would raise a whole other set of concerns about how we protect the ability of minority communities to elect candidates of choice, etc. P have to have a level of consciousness when drawing a map to be fair to everyone. Host we of been focusing on congress and Congressional District spirit you write about the 2016 president ial election. In a recent article you put out mapping the 2016 electorate, democrats do not guarantee a Democratic White House or u. S. Three reasons for optimism for the democrats and three reasons for optimism for republican candidates. Briefly, if you could go over some of those with us. Guest thanks for asking. Sure. What we sought to do was map the 2016 electorate according to what demographic groups are likely to make up, what component of each state electorate particularly in states that are likely to be close between two parties. The goal was to project would percent of latino vote would republican candidates need to win in the state of florida . We were able to come up with early conclusions. The nonwhite proportion of the electorate was 28 in 2012. If democratic patterns are predictive of what it will look like in 2016, we anticipate the shares will go up to 30 and that is good news for democrats. Democrats won almost 4 5 of nonwhite voters in 2012 and we continue to see the Republican Coalition of older and whiter voters shrink. That is good news for democrats. The good news for republicans here is there is probably no magic number of latinos or asianamericans that republican candidate needs to win in order to win the white house. I think when you look at the latino population across the country, it is growing and it is often said republicans badly need to do so much better with latinos in order to have a chance. Most latino voters are concentrated in states that are not particularly competitive at the president ial level, whether it is california, texas, or new york. Only in colorado, nevada, and florida do they make up such a significant portion that they can really swing Electorate College votes. I ca root for candidates without necessarily having to win huge numbers of latino and Asian American voters that they lost in 2012. Host could they give up at 4 5 and still win in the white house . Guest my hunch is if republicans do win in 2016, it is because they have done better with every group across the board. We have divided the electorate in the chart, available on our website, into voters with College Degrees, voters without College Degrees, because we have found that Educational Attainment has been a pretty predictive component of the vote when you look back a couple of decades. Democrats have been doing better and better with voters with College Degrees and republicans without. That is another interesting aspect. Host lets get a couple of calls. Independent line, robert. Caller i am calling about the thing in South Carolina. There is a state that is almost 50 black and 50 white. I might be wrong about that. Unless i am mistaken, there is only one black congressman. The idea with the Supreme Court one of the greatest votes ive ever seen. Redistricting is wrong. Im a democrat. I admit that. An independent democrat. But the point is what we have to do is make the election fair. You take three states like texas, florida, and california, where the minorities are now the majority, and we have nothing but 90 white congressman. How is that possible . Thank you. Guest there are a lot of reasons for minority underrepresentation at the moment. In a state like texas, the greatest factor at work is simply the lack of eligibility among latino residents of texas to vote. You see that even in a district for example texas, the 23rd district, up 68 latino. They still make of a big majority of all voters there. It is a district currently represented by republican. You even see some districts in texas where africanamerican democrats or anglo democrats have defeated candidates in the primary because voters are eligible and do not show up in great numbers even if they are the majority of the population. The caller raised the issue of South Carolina. I find that an interesting case as well. South carolina is close to 30 africanamerican but the color has a little bit of a point when if you were to apply that to the seven districts, it would be more logical for the states to have two black majority districts rather than simply one. South carolina gained its district in 2010 and chose not to draw an additional africanamerican majority district. That has been a legal football over the years. Do you have to maximize the majority seats, or is it acceptable to simply draw, to maintain the africanamerican share of that one seat . The Obama Justice department actually signed off on the republican map after 2010 in South Carolina that preserved one seat. Host as we wrap appear, just want to look ahead to 2016. The safe seats, etc. , where things stand this is according to the political the cook clinical report. 28 republicans 16 democrats nine republicans, three democrats. It does not seem like there is a whole lot of movement that will happen in 2016 at this point. Could any of these decisions in the court or other courts change that . Guest it is remarkable we have 435 Congressional Districts and yet we only rate 12 of those as tossups between the party. It goes to show you the self sorting and gerrymandering in both parties has undertaken has really contributed to the decline of any suspense by the time Election Night comes around. I do not anticipate the Supreme Court ruling in arizona will affect that. If anything, it preserves a couple of competitive seats that might otherwise have been eliminated by bipartisan. In 2016, i think republicans stand an excellent chance to maintain the majority and the house. Democrats will gain seats simply bouncing back from a bad year in 2014 when a lot of their own can situate sees stayed home in large numbers. But we need to pick up 30 misfits in the majority in 2016 it we only rate nine in the column at severe risk. Another 13, even if democrats want all the competitive races host David Wasserman is the house editor for the Cook Political Report. Your argument this morning the Arizona State legislatulegislatu re versus the arizona independent redistricting commission. Mr. Chief justice proposition one 06 permanently divest the state legislature up its authority to prescribe Congressional Districts thank asset to the unaccountable commission the elections clause of the constitution best that authority not just in this daybed in the legislatures there of a valid effort to read delegate that authority to the unaccountable commission is playing the repugnant of the constitution besting of that authority. It is all right for the state redistricting there is no constitutional question for the state representation absolutely Justice Ginsburg it only applies to the Congressional Redistricting that means if the commissions are as effective as my friends on the other side say, we have nonpartisan districts that will elect the state representatives then those nine that have gerrymandering bodies could take care of the Congressional Districts to mccurry suggests a the lack of legislative control or that we have to overturn smiley . To make you dont all have to overturn with a smiley in particular the court wasnt phatic the legislature was a term of smart certain meeting that it means that a representative body this be made it. We made it very clear with smiley that hildebrandt that means legislative process been met with all due respect i would disagree this would hurt the brief in smiley one side said the legislative process the other side says and though it means the representative body of the people the course of we dont have to agree but just as he said five years earlier it does mean that people so the court said first clearly it is the representative body of the people but that brings to the second question of what kind of authority is delegated to the state legislators . Under the elections closet is a Law Making Authority so that means the state legislature has to engage of lawmaking. But this makes no sense to me because i think it is either zero or. If the legislature has the power how could a popular referendum the veto . If they have the power or they dont if it says the people hold the power they can choose a commission. Isnt that the legislative process . No. I disagree with you Justice Sotomayor but that is not important i think the courts of smile a disagrees that way they say fidelity remains the same. It is the representative body. The function differs the with the state legislature is told they can elect somebody or ratified then there is no process but if theyre told the prescribed rules the cow or a the court says it is the power of the delegation so of course, they do that pursuant to the ordinary rules of that provides for a gubernatorial veto or they have to spend 30 days in committee then they apply to the lossmaking under the elections clause. But it is a completely different matter to say we want to cut the state legislature out entirely to revisit the framers decision to delegate misheard and read delegated to entirely different body that the one feature we know the representative body does not have is completely unelected and unaccountable. But to substitute this commission for the state legislature . I dont believe congress can say is that the state level we will read delegate this to the state commissions are the independent commissions if Congress Wants to do that the federal level with the federal commission that is a different issue because obviously at has power. But to say that is the manner of federal authority . I dont think they could simply bless what arizona has done because that would amount to revisit eight revisiting of the first sub clause. Congress could say we will take the Commission Districts to make them our own. But that would be a federal commission but if it is the latter is over the legislator . It could be the Advisory Commission reinject that there is a commission but the her resting of authority if you have a law that says the commission in my estimate is proposal to the legislature they have 30 days and can overturned by a threequarters vote. Justice kennedy that would be a harder case i think however the Court Decides this case could decide that either way. The question is is the residual authority there does that amount to the authority of the prescribed district . You could say either way theyre not cat out they have the residual authority and three forced is tough maybe you can get it done or you could say which is the better view, will you do under smiley and it held the printer is the ordinary rules for legislation to you cannot come up with a separate rules to apply only to redistricting to reach a much harder for them to act. Your phrase probably answers the question what about voter i. D. Lazar absentee ballots that are enacted by referendum. You would say those are okay because the legislature is not completely cut out spitzer probably so it could depend on the details. How about that i thought the legislature was completely cut out if you take out of 2011 mississippi with voter a justification and or again to vote by mail or arkansas use of Voting Machines they were done by referendum or initiative with the legislative process completely cut out so when all of those be unconstitutional as well . We could go further. Let me address those losses Justice Kagan if you look at the various laws put in the appendix, now one of those provisions purports to on his face read delegatory we away from the state legislature. To the contrary i counted 27 delegate authority to the state to implement so if you look at the North Carolina provision. But delegation is all they are is laws passed not to the legislative process. Exactly. But i would take if your primary argument Legislature Means Legislature there last three legislative control and none of these is there a legislative control there is no legislative participation at all. We distinguished to situations we could say the problem is that it was done by the initiative and not the legislature but that is not our position ruth have the same objection the fed was by a gubernatorial eject rigo that what should the merger is that nobody could ever do anything on the one off basis because the court has already said it is okay for a judicial body or the state court to do redistricting of a oneoff basis. How was that consistent with the argument that you make . What you are making is the Legislature Means Legislature note to ways around that but now you say there are the of many, many laws throughout the United States in which the laws are not made by the legislature and that is perfectly okay because it is not involved at all. To things. The descent the problem that they got in their late to do something our problem is once they got there they decided to rest them from the data of process entirely as a more specific answer i would evoke this courts case that dealt with the analogous klaus said the article to to give the state legislatures the authority to prescribe the rules for a president ial elector it than this court to practical view if theyll let other parts of the state to something we will not jump ted. We could think of that his delegation of authority but it does mean something that it projects the legislature from other parts of the state from permanently resting that authority. I thought with the separation of powers at abdication is just as consequential that it doesnt matter what the legislature wants. They could say fine we dont care. But if there is a problem if it continues to exist in respect aristo legislature protest or not. That is not the way the court approached the issue in pearson but the same way to approach a here that i think it is the right to view that nothing would prevent the state legislature from delegating its authority that is not the problem of. The problem is by an initiative or edict werent the same they thought it was great to read disagree sauceboat oppose the proposed that. Ultimately that would not make a difference in my own view but would be a different case san mcfadyen is the case where the legislature made the decision. That is not the situation read deal with here but what they did was proposed a referendum that permanently wrested the authority so they could not get a back. Not completely because the legislature in arizona, correct me if im wrong, it can overturn what the commission does to put its own referendum before the lawyer to say please voters coming change the proposal from the redistricting plan. I suppose they can do that . And has the power to have the referendum. I think they would have the paper power to do the initiative but not a referendum one of the ironies is the power of the people but with the commission and promulgates is not such a referendum might the maps were before the proposition passed although legislature could do was what a citizen could do to propose said an alternative map but whenever that is that is not the primary power to prescribe districts that puts the state legislature on the same plane as the people. So it is okay if the legislature itself establish this commission . Em take the position that is okay because it is a delegation of authority. If you disagree, i think it is consistent with what this court said in a of mcpherson case of the authority of the state legislature to prescribe rules for electors they can delegate that but if they want to take giveback as they did and the michigan case they can do that and if the state tries to stop them that is a constitutional problem. So they have this independent commission and it has veto power on the states redistricting so the state can redistrict but then it submits it to the independent commission and it can say no. Do it again. I guess it depends on the details of how that works who has the old met last say may have the veto. Caribe over rated or is a permanent . It does arguably at the end of the day i will see to things. That would give the legislature of a law more authority than arizona is allowed here so it is a different case. The principle to allow you the disasters of the question allows the state legislature to prescribe the Congressional Districts. It doesnt. It does. If you can wait for another day. There is the veto at the end. If you think it doesnt then you should decide that case in favor of the state legislature. This is what we have to do every time they set up a process with some independent Commission Involvement so what do we have to ask exactly . To make a bid is consistent with the constitution. No. Tell me how we will decide all these cases is that which he Advisory Commission and plays some role not saddam all but a very serious role the little piece left to the legislature. It will not be that hard Justice Kagan. And most are pure the revisory they are not constitutionally problematic some are back up commissions they dont have the veto but if there is a stalemate a stalemate they cannot get it done that a backup commission comes and. What if it says will give you to map to have to pick one and only one . I would think that is probably unconstitutional but. Why is that unconstitutional as an impasse but the third party isnt . Director reason i say that is because of the legislature has primary authority and they cannot get it done then we know somebody will provide that rule. If the legislature has a stalemate in the real world you cannot use the existing maps because they violate one person one vote so the state courts come in. So that is why it passes all together. Everybody wants to bypass because they know what the end of the rainbow is the unconstitutional federal default rule. I know we will say it is a constitutional requirement but if i read hillenbrand and smile of a difference a there is plenty of language of their choosing just so but if i read it to say that the election clause means the legislative process isnt that simple . You dont have to worry about how the states experiment with their own Self Governance . Why is that a federal interest . To read because the framers thought long and hard about this issue. Know they didnt actually. If you look at the legislative history with the federalist paper there is not a law on this particular clause. There is a tremendous amount of this clause if you are saying on the sub clause i will grant you that the part of the reason there was discussion because it seems so remarkably obvious that this is done at the state level by any one of course, it would be done by the representative body of the people. It isnt like they didnt know about popular what making or have that conception of a referendum or an initiative they simply said like representative government. I back the initiative of the referendum at the time of the founding was through the legislatures . The issue is how we came to know them in the early 20th century at the time of the framing but the direct democracy was they themselves said there should be conventions to approve the constitution not just by votes of the state legislature. When they for a related article five they had alternative mechanisms that the congress would choose to provide predicate ratification so the framers understood the difference between direct democracy and Representative Democracy and made a conscious choice. It is hard to argue that they did not know the difference between the people and the state legislatures in the context of federal elections because there they are creating a house elected by the people and the senate who would advise the state legislatures when they get to the qualification clause they say the people will put for the congress and how to redefine bake they can vote for congress . Those of votes in the statehouse so at those points the obviously demonstrated. I was just a of very pure rule you said it means a legislature so what has to do those things but you created many exceptions over the last contaminants and you said anything that is not a redistricting can be done by referendum our initiative within the legislative process whatsoever or all these different schemes about the interactions between the legislature and Advisory Commission will have to be reviewed on a case by case basis to determine if they have primary control and after that the original argument that a legislature means a legislature but we are miles away from that . I dont agree what i am doing is channeling the decision that of course, it is the state legislature when they get to do something than the question of the constraints put on the legislature draw on these lines those are hard questions but there is no hard questions here. But the election clause if it means anything you cannot completely cut out of the process the state legislature entirely on a permanent basis. Suppose fellow legislative district is challenge with the one person one vote under the of the teeeight rights act and it goes to a state or federal court. Add wine year before the election does the state courts have an obligation to simply pass on the of validity of the plan then send it back to the legislature or could it do its own . I think what they say is in that instance first caller should be a preference of state over federal but that it favors a process. So there is time to go back to draw and a new map. Is the constitutionally required . If think ultimately it is. If not is prudent. The reason the arises from the recognition of this courts time and time again redistricting. But were talking about what is required. So in your favor we have to tell every court that vaulted redistricting that asked to submit it to a the Legislature Even if the court made its own plan would have to submit it back to the legislature for the next eight years . I think for the most part that is what this court has already said that with the initial challenge yet if there is time you let them do it. This court has also said. You leave the redistricting plan has to have of fixed deadline . Of course, i assume they could pass a conforming plan but it stays in place and tell it does it seems that is much of the displacement. It is not as much. But there are two different circumstances when is when it is challenged very early theres still time for the legislature to take a second crack at the plan i would be wiser to say if there is that kind of charm than allow them to do that. It is their primary task. But if there is not time if there is a judicial for the first cycle takes place a higher bid discords case to suggest that generally there is nothing that prevents the state certainly from going and redistricting and apparent case rejected that idea that you have one shot then you are done. But was instead colorado said if you get into that situation you have to live for the judicial plan until the next census but then the legislature canned chicken with a prayer very bold that could be inconsistent but however you decide that issue either way you have to a september argument not for the answer to that question that is why i am happy to address the hypothetical as but remember it is about the most extreme case that you will have. If the election clause means anything with a delegation of responsibility to this stage maybe we can talk about taking part of it away but you cannot take it away entirely on a permanent basis to give it to a commission that the defining beecher it is not representative if i can reserve the balance of my time. Faq council. Faq mr. Chief justice i would like to make one main point before i turned to a statutory section. This is an extremely but usual unprecedented lawsuit asking the federal court for assurance with a certain kind of law in would be enforced by officials. Rigo normally conceive of a legislature to have an interest with the enforcement of the laws they may pass. Is this a definition of the power to legislate . Not of a particular plan . Know if it isnt because there is said to anything of a of a practical matter to prevent the legislature to pass a bill to create districts the state that they believe than a good faith they can do under the elections because there are numerous cases that has passed laws that conflicts with the arizona constitution and the courts to. Host as long as with their conflict is that theyre not enforceable. You want the legislature to pass a law that is not a force all to suggest that dont have standing to challenge the referendum until they go through the process . I do think that the plaintiff had to allege they would buy a of plane tickets to complain about the power but they would say they will do everything they cayenne to bring this to a head. So they plan to exercise what had been their normal authority to engage do redistricting . It implies they had a mystery and interest to do that. It made the difficult but i dont think that says the reason to excuse them but with the absence of the allegations they are either on redistricting plan to say now i go with a Commission Plan i still dont think they have standing because they dont have an interest in the enforcement of laws that they pass. They have of editress to the constitutional powers. I will give you example that if Congress Passed a law in some area and further suppose there was a challenge to that law i dont think anyone would believe the state legislature acting in its own name is the proper party to bring back a challenge on the theory that Police Parties have been infringed by the federal statute but the elections causes does not give the state any more lawmaking power. You say nobody would have standing as an institution . There are people that are much more directly affected putting into one district or another are a Voting Rights act challenge. Is a part of the jurisprudence it is likely another person is more directly affected that goes into the balance that the legislature doesnt have standing . No. And it is the opposite that that is not a reason to find standing we think it doesnt have standing to sue regard this but before we reach the merits the first is the statutory issue it is relatively easy the court decided the issues in an ohio against hildebrandt to go against the language of the 1911 act . It is meant to apply when the state has not agree district no doubt it is under the law. Herbalife to turn back to hillenbrand but the operation of the preparatory clause is best under context that requires asda matter of statutory law it makes said zero law if that is met it says one of the default procedures will apply and tell a state is redistrict did in the matter thereof. The necessary and logical corollary is once the state has banned free distracted those will be used as hard to believe it would expect anything different given the fact there legislating that is exactly what they would have done to distract the language of the 1911 act that first of all, the statutory language had the express purpose for the demand direct democracy procedures. To be one thing if Congress Passed a law that up portion of Congressional Districts in any matter consistent with the state. That is not what this says. The statute may have been enacted of that assumption but it is not on the way to implement that it is just the assumption. And with the backdrop it interprets the same statutory language with the 1911 act to provide that direct democracy procedures. As they have the power to do that. I guess the bottom line question that we remove redistricting from the legislature and we require every state to pass by referendum. Is your Position Congress has the power to override the constitution . If there was such a law we might defend it but i dont think we have to go that far for two reasons. Congress is not trying to force upon the state would it doesnt want but simply to recognize the federal statutory requirement is satisfied when the state redistricts under its own procedures. The power of congress should be at the apex when they want to do the same thing but in this circumstance. No, no, no. And not if it violates the constitution. Just because Congress Agrees with the state they can do it doesnt make it constitutional . The objection is a constitutional objection. But it is the authority of congress, the different, my friend said if the state legislature wanted to it could have given the power to the commission. Under the second sub claus conquers can do anything that the state legislature can do and it can also give its power to the commission. The difference between this scenario is that it would restate the authority but it is always a consequence versus the state legislation when Congress Passes the al law it is not what they can override to supersede the authority and conagra authority. Iso think. But its true revise the first clause the sec didnt than do something on its own budget can use the second clause to revise what the first clause is says . I do think the court settles this issue when it says it was simply doing something a bit constitution expressly gave the right to do. Talk about congress with the first seven clauses it does something of a state legislature could have done. Thank you counsel. Mr. Chief justice of it may please the court that the people would reduce sir a power of legislative body that they created raises a claim that the framers would have been astonished to consider Federal District courts have jurisdiction to adjudicate more fundamentally is misconceived arizona defines this legislature constitution to include the people and two representative bodies the appellate argument hinges on the promise that to draft the elections clause the framers intended to ignore the states definition of its own legislature and it is deeply inconsistent. The state calls and under the federal constitution . Suppose it says the courts are the legislature with that suffice . Back by using the word legislature in connection with the uniform accepted definition of that term to site is in the dictionary it was understood that legislature meant to the body that makes the of law. Give me one provision of the constitution that uses the term legislature that clearly was not meant to apply a to a the body of the representatives of the people. Because one provision that clearly has your reading i cannot find a single one. But the old plan that this court has said in hillenbrand and smiley. This is the only one. It may or may not. Your 1913 ministates wanted to have direct election of senators with all sorts of proposals with primaries but now one states displaced the old legislature. It took the 17th amendment to do that. That is correct. A bad history works against you because the senators shall be chosen in there was no suggestion that this could be displaced. There is no question that this court has explained repeatedly in smith first is talk that is addressed articles section one from the election of senators and again in smiley that made clear as the court reiterated that the term of the enactment depending on the function. But now you go to the statute of viewers saying the legislature in the first article of section iii is Something Different than what it means a the following section. As the courts to explains and smith verses hoc which was article five question of the meeting of the word legislature for purposes of ratification of the court said in the article one Section Three election of senators by the legislature end of the our edification power what at issue was up power to elect and ratified with the body to use those as examples where opted Justice Kennedy the term legislature in the constitution has that meeting but where it goes on to distinguish hillenbrand on precisely the grounds were urging so what was that issue under the election is clause is not a particular body is the legislative power of the state. But do get back to the justice to justice delayed it doesnt mean anything other than the conventional meaning what about the Constitutional Convention to suppress Domestic Violence or a new state . All of those provisions would use the term legislature does that mean anything other than the conventional meaning . I dont know the answer to that question. Does it may be . The court has never said that it doesnt or that it does but it has focused a law of attention on three particular uses of the word in the constitution and article five ratification power, the former power to elect senators in the legislative body article one section for power to make of law in the provision that is the issue ended is particularly important one to get to the language of smiley. Have a bite to tear as i read those two cases they dont help you very much. Hildebrandt is talking about a particular statute and it helps the government with a statutory argument because uses similar words but we dont know if it was the same attention intent smiley talks about a legislature that the exercise of map drawing power is legislative or a the impeachment exercise if you have people outside to make the legislative decision. Elsie those cases is helping you that much so please argue to the contrary but i think the open question is what happens with the legislative power over time expands from a group of people a the states capital. There i dont find much help in one way or the other. I think hildebrandt smiley and hawk that was block ordered and the courts opinion that all strongly support the meeting of though word of legislature that was the consensus definition and i every. The consensus definition although you cannot give assessing instance that it is clearly used that the consensus definition is clearly used. E on cspan2 at 10 00 a. M. Eastern time. Now a discussion on the u. S. Patent system and its affect on immigration and the economy. This is an hourandahalf. Good afternoon. My name is jim lewis. We are lucky to have with us michelle lee, the undersecretary responsible for the u. S. Patent and Trademark Office. The format for today is michele will give opening remarks and other panelists will join us up here we will have an interactive session and turn to you the audience for a question. I am looking forward to this event. I think we can have a good discussion of a timely topic we have bios available on web site and i will do a brief introduction. Michelle lee is the undersecretary for commerce for intellectual property and director of the u. S. P t o which i would did not realize was 12,000 employees. It has grown she directs this daytoday operation, and not unique in silicon valley. And p t os first director of the silicon office and worked at google and patent, after getting a law degree but i got the order wrong but you will have to live with it. And now come back to washington and east coast and director of the Patent Office and introduce other speakers but let me turn it over to michelle lee. [applause] good afternoon, it is of pleasure to be here to talk about something that is important to me and i think to all of you as well and that is the topic of innovation. I would like us to consider the critical role, to make the american economy, and the increasingly Global Innovation economy. To give historical perspective, it wasnt long ago patent law was considered niche topic, the most valuable asset for the company often times tangible. And their inventory, the most valuable asset leading companies were the intangible assets. The algorithms, the prophecies, and the brands of the company. What we like to call intellectual property and because these tangible assets are more easily copied, protecting them for investment and competitiveness. Pants which provide the Market Exclusivity for a limited time are an important part of that protection. It is a fact that our economic competitors recognize appreciate and mention in my meetings with them. Last may i traveled to beijing, china for meetings with ministers and vice ministers of chinas trade, patents, copyright and Trademark Offices but began my trip, with senior officials in the Chinese Government and young. During the meeting we emphasize chinas desire to strengthen protection and enforcement system. Not just because it is trading partners are asking for these changes but because china used as necessary in their desired transformation from a Manufacturing Based economy of inventions developed elsewhere with technologies developed in china to provide products and Services Higher up the value chain. Put another way, china wants and economy like ours in when joy intangible assets play a greater role and they recognize the need for a cotton system more like ours. From that meeting in china and other encounters i had with leaders around the world i repeatedly here United States is a globe will be here when it comes to protecting and enforcing intellectual property rights. Despite all of our discussions and debate here at home our high tease system is what many countries to when designing their own system and while we can and should take pride in this we also need to take heed that as china and other countries seek to move from a Manufacturing Base economy to and innovation based economy, we will face more and more competition. We cannot afford to standstill as other nations seek to catch up. We cannot idol as other manufacturing economy is seek to move up the value chain and we cannot remain immobile as american in of a receipt to compete in the 21st global economy. We are faced with a question. Do we believe our patent system as it is or do we strive to make it even better at incentivizing and promoting innovation and investment . Is worth noting our patent sy innovative. It is a bargain between inventors and the rest of society is invested in joy progress clause of the constitution. The inventor gets an exclusive right for a limited period of china and invention in exchange for Teaching Society howled that invention works. That exclusivity makes it easier to secure investment and commercialize the invention. As Public Disclosure of how the invention works allows others to begin working on improvements and letting others know which technologies require a licenses or work arounds. But the constitution only provided a very broad level framework for our patent system. It left the specifics to congress to update through legislation andovers the years that the golf framework has further developed. And in these circumstances, earth through the work of the United States patent and Trademark Office but that work continues to this day. In an information economy where patents were reviewed as assets, i saw this firsthand during my time in the private sector. In the past operating companies with at portfolios sometimes across licenses with other companies. Today in contrast there is a much greater market for patent, a greater chance of assets in debt in the hands of somebody else. With the patent system such as oursimposes meaningful penalties for infringement, we are seeing a rise in behavior of truly monetizing the value of a patent from another, without contributing anything inventive and without making or providing any product or service. This can and has led to increased threats and to the extent that panting from joy and claims i made merely to coerce settlements from the merits of a claim this is inefficient and costly for everyone involved particularly Small Companies and start ups who often times have limited financial resources. I can tell you from my time in the private sector litigating hand cases is very expensive. Defending against patenting fringe and suit can cost on average depending on a variety of factors anywhere from 3 million to 5 million for a case that is not very complicated. For us start up with an initial round of funding of 10 million that is a devastating cost on innovation. Taking a patent case to trial can burnt through one or even two rounds of funding at a time when the Young Company should be spending ltd. A precious amount of money, hiring employees investing in research and development for growing its business and lets be clear this is not bad for Small Businesses and start ups. Is bad for all of us. Inventors, consumers, jobs and the american economy. Worst of all it reduces the publics face in our paten a i patent protection to incentivize innovation high to examining and issuing patents