very clear in smiley and in hillenbrand that we're defining legislature in this clause as meaning legislative process. >> with all due respect i disagree. this court heard the argument in the briefs in smiley, and one side was saying just that. one side was saying legislature just means the legislative process in the state, whatever that is. the other side said no, it means the representative body of the people. and this court said, well, actually we don't have to decide that dispute but we certainly agreed that it means the representative body of the people just as we said five years earlier in the hawk case. so what the court says is first the delegee is clearly the legislature. the representative body of the people. but that brings you then to the second question, which is what kind of authority is delegated to the state legislatures? and the authority that's granted under the elections clause is a lawmaking authority so, that means that the state legislature has tone gauge in lawmaking subject to -- >> but this makes no sense to me because i think it's an either or. if the legislature has the power, how can the governor veto it? how can a popular referendum veto it? either they have the power or they don't. the 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? >> no, it's not. but i mean i disagree with you justice sotomayor, but that's not particularly important. i actually think the court in smiley disagrees with is that way of thinking about it. what they say is the delegee remains the same. here as in hawk it is the state legislature, the representative body. they say the function differs, so when the state legislature is told it can elect somebody or ratify something then there's no personal agency of anybody else in that process. but when they're told to prescribe rules the court says that's a delegation of lawmaking authority, so of course you delegate -- of course the state leblg slach does its lawmaking pursuant to ordinary rules and if the ordinary rooulz provide for gubernatorial veto, if they say it has to spend 30 days in committee, then those rules apply to the lawmaking under the elections clause just as they would to other lawmaking. but it's a completely different matter to say we're going to cut legislature out entirely and we're going to revisit the framers' decision to delegate this important responsibility to the state legislatures and we're going to redelegate it to an entirely different body and the body that has the one feature that we know a representative body doesn't have, which is this commission is completely unelected and complete i. unaccountable -- >> could congress do that? could congress substitute this commission for the state's legislature? >> i don't believe that congress would say that at the state level we're going to redelegate this authority from the state legislatures to state commissions or independent commissions. if congress wants to do it on the federal level and set up some sort of fram commission that would be a very different issue because obviously congress has power under the second -- >> could congress bless what arizona has done by saying that's the manner in which federal elections will be held? >> i don't think they could simply bless what arizona has done because i think that would amount to revisiting the judgment that the framers made in the first subclause. i think that they could if they wanted to, congress could say we're going to actually take those commissions districts and make them our own and we're going to impose them. >> you're saying it has to be a federal commission or a state commission but if it's the latter it can be only the legislature? >> i think that's right though of course it could be an advisory commission. what we object to is not just the idea that there is a commission. what we object to is the permanent wresting of authority from the state legislature -- >> first you had a law that said that the commission has -- must submit its proposal to the legislature and the legislature has 30 days and can overturn it only by a 3/4 vote. >> i think, justice kennedy that would be a harder case. and i think that this court however they decide this case could decide that either way. the question you would ask is is that residual authority for the state legislature amount to the authority to prescribe districts? i think you could decide that either way. you could say they're not cut out completely they have the residual authority and 3/4 is tough but maybe you could get it done. or you could say and i think this might be the better view in my view. you could say what you do under smiley and hillenbrand is apply the ordinary rules for legislation to the state legislatures but you can't come up with some separate rules that apply only to congressional redistricting and make it much harder for the state legislature to act. >> your phrase completely cut oup. probably answers the question what about voter i.d. laws? ab sebtee ballots and so forth. provisions enacted by referendum. you would say those are okay because the legislature's not completely cut out? >> i would say probably so. i think it might depend on the details a little bit. >> i thought that the legislature was completely cut out. as to most of these things. i mean you take the 2011 law in mississippi, adopting voter i.d. requirements 2007 oregon voting by mail. 1962 arkansas use of voting machines. all the things, these things were done by referendum or by initiative with the legislative process completely cut out. so would all of those be unconstitutional as well? and we can go further. there are zillions of these laws. >> yes. and let me address these laws justice kagan, and also be responsive to justice kennedy. i think if you look at the various laws that are put in the appelee's appendix not one of those state constitutional provisions purports to on its face redelegate authority away from the state legislatures. and to the contrary many of them, roughly half i counted 27, actually delegate authority to the state legislatures to implement them. so if you want to look at the north carolina provision on -- >> well, they're not delegations or non-delegations. all they are is laws that are passed not through the legislate legislative process. >> exactly. >> not through the legislature. >> we don't think that's the defect here. >> my gosh, i would think that if your primary argument is legislature means legislature that there has to be legislative control. in none of these laws is there legislative control. there's no legislative participation at all. >> see, justice kagan, we distinguish two situations. we could be here saying the problem with proposition 106 is that simply it was done by an initiative and not by the legislature. but that's actually not our position. we would have the same objections here if this were imposed by gubernatorial edict. and we know the word that emerged from this case is nobody but the legislature can ever do anything with elections on a one-off basis. and the way we know that is this court already said it's okay for a judicial body like a state court, to do redistricting on a one-off basis. >> how do you make that consistent with the text, the textile argument you're making? the textual argument you're making is legislature means legislature legislature, there's no two ways around that. but now you're saying there are these many, many, many laws throughout the united states in which the rules are not being made by a legislature and that's perfectly okay because the legislature isn't involved at all. >> two things, justice kagan. our position 450er is not the problem is somebody else got into the legislature's lane and purported to do something about elections. our problem is once they got in that lane they dieted to wrest the legislature from that process entirely on a permanent basis. as to a more specific answer to your question i would invoke this karat's case in mcpherson against blacker which dealt with an annual gous clause in article 2 that gives the state legislatures the authority to prescribe the rules for presidential electors. and what this court said took a practical view of the matter, which is if the state legislature sort of lets other parts of the state do something we're not going to jump in. we can sort of think about those as delegation of authorities. but the words in each -- in the legislatures thereof mean something in the constitution and what it means is it protects the legislature from other parts of the state coming in and permanently wresting that authority. >> i thought generally in our separation of powers jurisprudence abdication is just as consequential as agran dyesment. in addition, it doesn't matter what the legislature wants. they could have said oh, go do it i don't care about it. if there's a problem, the problem continues to exist irrespective of whether the legislature protests or. . >> that's not the way the court approached this issue in mcpherson. i would suggest it's the same way to approach it here, which is to say i think the court recognized in mcpherson i would certainly say it's the right view, that nothing would prevent a state legislature from delegating its authority to one of these commissions. that's not the problem. the problem is that the law either by an initiative or gubernatorial edict would be the same, from without comes in and says the framers thought it would be great for this to be in the state legislature we're going to disagree. >> suppose the legislature proposed the initiative or the referendum referendum. >> i don't think that would ultimately make a difference in my own view, but i think that would be a different case. >> that's a case in which the legislature has itself made the decision. >> right. that's not the situation we're dealing with here. i do think that what they did is propose a referendum that then permanently wrested the authority so they couldn't get it back. >> it's not completely remote because the legislature in arizona, correct me if i'm wrong, can seek to overturn what the commission does by putting its own referendum before the voters saying please, voters, change this proposal from -- or change this districting plan. and enact a different one. i suppose the legislature can do that. it has the power to submit a referendum or initiative to -- i guess a referendum to arizona. i think. >> 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 could 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 plane as the people. >> do i understand you to say it would be okay if the legislature itself established this commission? >> i would take the position that that is okay because that is a delegation of authority. if you disagree with me, 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 stitt legislatures to prescribe rules for electors. if they want to take the authority back, as they did 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. >> tell mr. clement that the states set up this independent commission and the independent commission has the veto power on the state's redistricting. in other words, the state can do redistricting and then it submitsz it to the independent commission and the independent commission can say no go back do it again. >> i guess it depends a little bit on the details of how that works and who's got ultimate last say in the matter. >> they have the veto. that's who has the veto. the independent commission. >> is it a veto that can be overridden or just a permanent veto? >> does it matter? >> i think it does. or at least arguably does. at the end of the day -- let me say two things about that. one is that would give the legislature an awful lot more authority than arizona has allowed here. it is a different case. the principle that would allow to you decide that case is to ask yourself the question of whether or not it allows the state legislature to prescribe the congressional districts. >> but it doesn't, riceght? >> kind of it does. which is why it's a hard case that you can wait for another day to decide. zbliel take out the kind of. it doesn't. there's a veto at the end of this. >> if you think it doesn't then you should decide that case in favor of the state legislature. >> but that's what -- this is what we're going to have to do for every time that they set some process in which there's some commission involvement. what we're going to have to ask is what exactly? ? >> whether or not it's consistent with the constitution. >> no, that's just -- tell me exactly how we're going to decide all these cases in which an advisory commission plays some role but -- not just some role. a very very serious role. but there's a little piece that's left to the legislature. >> i don't think it's going to be that hard, justice kagan. look let's look at the commission that's exist in the real world. some that are purely advisory. nothing in our theory suggests they are constitutionally problematic. you have others what are called backup commissions. you don't have a veto but if the legislature because there's a stalemate, one house is the democrats, one house is the republicans, they just can't get it done then a backup commission comes in. i don't think that's -- >> what if the commission says we're going to give you two maps, the legislature has to pick one and only one? >> i would think that's probably unconstitutional. but i don't think -- >> why is that unconstitutional? and an impasse in the legislature. >> the reason i say that is because if the legislature has the primary authority and they can't get it done then we know as a matter of fact that somebody else is going to provide that rule. now, if the legislature gets stalemate what happens in the real world of course is you can't use the existing maps because they violate the one person one vote principles. so the state courts come in. >> everybody i think wants to bypass qac because everybody knows at the end of that rainbow is an unconstitutional federal default rule that violates -- >> i know you're going to say it's a constitutional requirement but if i read hillenbrand and smiley differently and i think there's plenty of language there to suggest so but if i read it differently to say that what the election clause means is the legislative process, isn't that just simple? we never have to worry about how the states experiment, what they do in their own self-governments. why is that the federal interest? >> the federal interest is because the framers thought long and hard about this issue. and they decided -- >> they didn't actually. when you look at the legislative history on this the federalist papers, not a whole lot on this particular clause. >> well, there actually is a tremendous amount on this particular clause. if you're making the point there's less about the first subclause, then the second subclause i suppose i would grant you that. but part of the reason there's less discussion of the first subclause is it seems to remarkably obvious to the framers that if this were going to be done at the state level by anyone of course it would be done by the representative bod yift people. and it's not like they didn't know about popular lawmaking, it's not like they didn't have the conception of what a referendum would be or an initiative would be. they simply said we like representative government. >> at the time of the finding they weren't used by state legislatures. >> the initiative in the referendum is we came to know them in the early 20th century, late 19th century, were not in use at the time of the framing. the framers themselves said there ought to be conventions to approve the constitution, not they shouldn't be approved just by votes of the state legislature. the framers when they formulated article 5 and had alternative mechanisms the congress could choose to provide rat fiblgation they gave choices of the state legislatures or people in con rengs. the framers understood the difference between direct democracy and direct democracy and they made a conscious choice. it's hard to argue the framers didn't know the difference between the people in the stitt legislatures in the context of the federal elections because there they are in a congress elected by the people and a senate by legislatures and when they get to the qualification clause they say the people are going to vote for the congress and how do we define the people to get to vote for the congress? the same people that get to vote for the most numerous body in the state house. >> on occasion you've said something like, this a legislature means a legislature and that's what it means. so a legislature has to do all those things. but you've made many, many exceptions to that over the course of the last 20 minutes. you've said that as to anything that's not redistricting it can be done by referendum or initiative without any legislative process whatsoever. you said all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to have to be reviewed on a case-by-case basis to determine whether the legislature has primary control and when you get through all that the original argument that a legislature means a legislature legislature, we are miles away from that, aren't we? >> i don't think so. i think what we're doing is channeling this court's decision in smiley. which said of course the dele gechlt e is the state legislature. when the state legislature gets to do something the question of whether the constraints put on the state legislature actually drawing these lines, there may be some hard questions about that. but there's no hard question here. if the election clause means anything. it means you can't completely cut out of the process the state legislature entirely on a permanent basis. >> suppose that legislative districting plan is challenged either on the one person one vote rule or under the voting rights act and it goes to a state or federal court. and and it goes a year before the election. does the state court have an obligation under the constitution to simply pass on the validity or the invalidity of the plan and if it doesn't pass senate back to the legislature or can it do its own if an election is approaching? >> as i read these court's cases what they say is the court in that instance first of all there should be a preference for the state courts over the federal courts. and then the state court favors the legislative process. what they do is if there's time for the legislature to go back and draw a new map -- >> you think that's constitutionally required? >> i do think ultimately it's constitutionally required. if it's not constitutionally required it's prudent. and the reason it's prudent flows from this court time and time again that this district is primarily -- >> we're talking about what's required. >> if we rule in your favor we're going to have to tell every court involved in a redistricting litigation that it has to submit it to the legislature. even if the court made its plan for its own election i think it would have to submit it back to the legislature for the next eight years under a reportionment scheme. >> i think for the most part that's what this court already said. white v. wiser said in the initial challenge phase if there's time you let the legislature do it. >> you mean a redistricting plan approved by a court has to have a fixed deadline? of course the legislature can pass a conforming plan but the court's plan stays in place until it does and it seems to me that's as much displacement as what you're talking about here. not as much, but it is a displacement displacement. >> i may have been confusing things. there's two different circumstances, right? one is when the redistricting plan is challenged very early and there's still time for the legislature to take a second crack at a constitutionally compliant plan. and i read white v. wiser to say if there is that kind of time you alout state legislature to do it. then the second question is there's not time. then there's a judicial plan and let's say the first cycle of elections takes place under the judicial plan. i read this court's cases as saying even then there's nothing that prevents the state legislature certainly from going and redistrict. and this quascourt in the perry case rejected the idea you've got one shot at this and then you're done. there's one state colorado that said if you get into that situation you've got to live with the judicial plan until the next census. but then the legislature still kicks in and has the primary role. i'm inclined to think what colorado dons is inconsistent with the elections clause. however you decide that issue, your position in accepting our armth here does not foreor dane the answer to that question. that's why i'm very happy to address the hypotheticals. but i think that's why it's worth remembering that this is about the most extreme case you're going to have. if the elections clause means anything at all in terms of its delegation of this responsibility to the state legislatures, maybe we can talk about taking part of it away but they can't take the entire thing away on a permanent basis and give it to a commission that's defining feature is it's not representative. if i may reserve the balance of my time. >> thank you, counsel. mr. fagan? >> thank you mr. chief justice. may it please the court. i'd like to make one maint main point on standing before i turn to a couple points on the statutory question 2ac issue. on standing this is an extremely unusual and unprecedented federal lawsuit in which a state legislature is asking a federal court for assurance that if it passed a certain kind of law which it hasn't even alleged it's going to pass the law would be enforce theedsced by a state official who hasn't even denied he enforce it. in the enforcement of laws they might pass. there's nothing in the arizona constitution or the decision of the arizona courts interpreting that constitution -- >> so feigin, isn't this a diminution of the power to legislate? not of a particular plan or law of plan, this is a removal of power from the legislature. >> no it isn't. i don't think anything that prevents the legislature from passion a bill that would redistrict the state which they agree they would do under their elections clause. there are numerous case, some of which are cited in our brief at page 13 in which the arizona legislature has passed laws that conflict with the popular initiative or conflict with the arizona constitution and the arizona courts do treat them as laws and the constitutionality or their conflict with the initiative is that simply they are not enforceable and their enforcement is enjoined. >> you want the legislature to pass a law that's not enforceable and suggest they don't have standing to challenge what the referendum has done in this case until they go through that process? >> i do think just as in luchlt uhan the plaintiff had to allege -- >> which luhan? >> against defenders of wildlife, the second one. the plaintiff had to allege that they were going to buy a plane ticket to go see the nile crocodile in order to complain about observations of the nile crocodile. the legislature here should do everything in its power to bring this to a head. >> don't they have to under that theory just allege they plan to exercise what had up to this point been their normal authority to engage in redistricting? >> i suspect the fact they're relitigating implies they have some interest in doing it. >> i think that could be said of my litigation and it may be difficult for them to coalesce on some particular redistricting plan but i don't think it's reason to excuse them from the normal standing requirements. if i could just put the absence of an gaigs they pass a law to one side for a second. let's assume they had passed their own legislative redistricting plan present td to the secretary of state and the secretary of state had said no, i'm going with the commission's plan because that's what state law requires me to do. i still don't think they would have standing here because again, legislatures don't have an interest in the enforcement of the laws that they pass. as a general matter. >> they have an interest in the constitutional powers pef. >> let me give you an example that's fairly annual gous lyly annual gous to this case. let's suppose congress pass the a law that pre-empted state regulation in some area. and there's suppose there were a constitutional challenge to that law. i don't think anybody would believe the stitt legislature acting in its own name would be the proper party to bring that constitutional challenge on the theory that its police powers had been infringed by the pre-emptive federal statute. and although this case arises under the elections clau3lo nxo have standing because already there are other people that are more directly affected? do we say that? >> no, your honor. in fact we say quite the opposite which means even if we knew no one had standing to sue. we think the legislature doesn't have standing to sue regardless of what anyone else does. i want to make a couple of points on the statutory section 2ac issue. the first is i think the statutory issue in this case is relatively easy because the court decided all the relevant issues in ohio against hildebrand in construing the nearly word for word identical language of the 1911 act. >> i don't understand how 2ac even applies. it's meant to apply when a state has not under its law redistricted. here there's no doubt the state has redistricted under its law. the question is whether the law valid. >> i'd like to turn back to hillenbrand in a second but just to came your question on i think the preparatory clause -- a neighboring federal statute to usc 2 c requires that as a matter of statutory law states be v divided into districts for the purpose of congressional representatives. that makes a question of statutory law how that districting requirement is met and whether it's met. that's the question that 2ac answers. section 2ac says one of these default procedures we prescribed is going to apply until a state is redistricted in the manner provided by the law thereof. i think the necessary and logical corollary of that is that once the state is redistricted in the manner provided by the law thereof those are the districts that are going to be used. it's hard to believe congress would have expected anything different. and in fact, given that they were legislating in light of hildebrand that's exactly what they would have construed. hildebrand said first of all that the statutory language had the express purpose to provide the direct democracy procedures -- >> i had the same thought as the chief justice. it would be one thing if congress passed a law that said a state may apportion congressional districts in any manner consistent with the law of this state. but that's not what this -- that's not what this statute says. this statute may have been enacted on the assumption that that would be constitutional but it is not the exercise of congressional authority implementing that. it's just an assumption in which a statute that's otherwise completely irrelevant to this case may have been enacted. >> i do think it's quite important that congress was legislating against the backdrop of hildebrand. hildebrand interpreting the same statutory language, 23e6k9ly the same, in the 1911 act found it had the express purpose to provide the direct democracy procedures could be used in redistricting. congress was exertion its power to effectuate that result insofar as it had the power to do it. and then went on to say that congress did have the power to do it. >> i guess the bottom line question is let's assume 2ac said something totally different, which is we remove redistricting from the legislature and we require every state to pass redistricting by referendum. that would -- is your position that congress has the power to override the constitution? >> your honor, i don't think that would exactly be overriding the constitution. if there were such a law we might defend it. but i don't think we need to go that far in this case for two different reasons. first congress isn't trying to force upon states some process the state doesn't want. congress is simply trying to recognize that the federal statutory requirement of districting is satisfied when a state redistricts in the manner it's decided to redistrict under its own procedures. i would think that the power of congress should be at its apex when both congress and the state want to do the same thing. the second thing i would say in this circumstance is it's not congress -- >> not if the same thing violates the constitution. i mean, just because congress agrees with a state that they can do it does that make it constitutional? the objection here is a constitutional objection. >> well, your honor i do think this is within the authority of congress. and let me come at it a slightly different way, which is my friend just said that if the state legislature wanted, to the state legislature could have given this power to the commission. under the second subclause of the elections clause congress can do anything that a state legislature can do which means congress could also give this power to the commission. the only difference between my friend's scenario and mine is in my friend's scenario the state legislature would retain the authority to override what the commission had done. but that's always a consequence of congressional legislation versus state legislation. when congress passes a law of the sort that it's allowed to pass under the second subclause of the elections clause, it's not something that a state legislature can override. and it's simply a consequence of congressing superseding authority and congruent authority under the second subclause of the elections clause. i also think -- >> the second clause being used to revise the first class. that's what we're talking about here. the second clause can certainly -- congress can do something on its own. but can congress use the second clause to revise what the first clause says? >> one thing i would want to emphasize is that i do think the court settled this issue in hildebrand when td t. said the predecessor to 2ac was doing something the stoounl constitution expressly gave the right to do. and i don't think the right way to think about this is to think about congress using the second subclause to rewrite the first subclause. congress here is using the second subclause to do something that a state legislature could otherwise have done as my friend acknowledges. thank you. >> thank you, counsel. mr. waxman? >> mr. chief justice, and may it please the court, the gravamen of the appellant's suit that they usurped the power of a legislative body they created both raises a claim that the framers would have been astonished to consider that federal district courts have jurisdiction to adjudicate and more fundamentally is simply misconceived misconceived. arizona defines its legislature in its constitution to include both the people and two representative bodies. an appellant's argument hinges on the premise that in drafting the elections clause the framers intended to ignore a state's definition of its own legislature. it is deeply inconsistent -- >> whatever a state kauld calls the legislature suffices uniter the federal constitution. is that right? >> the federal -- >> suppose the state says the courts are the legislature. will that zpies under the federal constitution? >> the federal -- justice scalia, the federal constitution by using the word legislature in connection with it's the uniform accepted definition of that term in the founding definition and we've cited by noa webster's and samuel johnson's dictionaries. but all were in accord it was understood the legislature meant the body that makes the law. >> give me one provision of the constitution that uses the term legislature that clearly was not meant to apply to the body that -- of representatives of the people that makes the laws. >> there is no -- >> one provision of the constitution that clearly has your meaning. i looked through them all. i can't find a single one. >> the one that most clearly has our meaning which accords to understanding is the one that this court has said in hildebrand and in smiley -- >> this one. this is the only one. >> this may or may not be the only one. >> it's not for -- until 1913, for close to 100 years many states wanted to have direct election of the senators. and they had all sorts of proposals. they had primaries and not one state, not one state displaced the legislature. it took the 17th amendment to do that. >> that's correct. >> that history works very much against you. because the term legislature not in the constitution, taken out by the 17th amendment, the senators should be chosen by the legislature. and there was no suggestion that this could be displaced. >> justice kennedy, there's no question as this court has explained repeatedly, first in smith versus hawk which distinguished hildebrand and the legislative power that is addressed in article section 1 from the election of senators in article 1 section 3. and again in smiley that made clear as the court reiterated just last week in yates that the meaning of a term in an enactment may differ depending on the function that the term is serving. >> now you're going to the statute. but just under the constitution you're saying the legislature in the first article of-s 3, the now repealed section that talks about choosing senators, means something different than it means in the following section. >> as this court explained in smith versus hawk, which was an article 5 question of the meaning of the word legislature for purposes of ratification. in smith versus hawk this court said that in the article 1 section 3 election of senators by the legislature and in article 5 the ratification g;é power, what was at issue was a power that is the power to elect and the power to ratify that specifically comported with the elected representative body. and it used those as examples the court said where often justice kennedy often the term legislature in the constitution has that meaning. but smith then goes on and distinguishes hildebrand on precisely the grounds we are urging that what was issued in hildebrand under the elections clause is not a particular body, a brick and mort legislature necessarily, it is the legislative power of the state. >> it's very helpful to you but to get back to justice scalia's question, is there any other provision where legislature means anything other than the conventional meaning? how about applying for a constitutional convention? calling on the president to send in troops to suppress domestic violence. creating a new state out of part of the state of arizona for instance. does it mean anything other than the conventional meaning of legislature? >> i don't know the answer to that question. >> it might? you think it might? >> well, this court has never said that it doesn't. it's never said that it does. it has focused a lot of attention on three particular -- the article 5 ratification power, the former article 1 section 3 power to elect. senators in the legislative body, and the article 1 section 4 power to make the laws in the provision that's at issue here. and i think it's particularly important. i want to get to the language of smiley, which my friend embraces -- >> i'd like you to because as i read those two cases they don't help you very much. i mean, hildebrand is talking about a particular statute that was passed in 1911 and it helps the government with its statutory argument because a different statute uses similar words. we don't know if it was with the same intent. smiley talks about a sitting legislature and asks whether its exercise of map growing power say legislative power or say like an impeachment exercise. it doesn't talk about what's at issue here where you have people outside that building making the legislative decision. so i didn't see those two cases as helping you that much. the -- please argue to the contrary. but i think the great open question here is what happens when legislative power over time expands. from a group of people sitting in the state's capitol to those people plus a referendum. and there i don't find much help in the cases one way or the other. >> justice breyer, i think that hildebrand smiley, hawk, and also this court's -- a case that this court decided a few months after smiley and that was block quoted in the court's opinion last week in yates, the atlantic cleaners and dyers case, all strongly support the reading of the -- the meaning of the words legislature that we advocate and that was in fact the consensus definition of legislature. and i agree with you that -- the consensus definition, although you cannot give us a single instance in the constitution in which the consensus definition is clearly used. i don't think it was a consensus definition at all. you pluck that out of a couple of dictionaries. it was referring to -- >> the dictionaries i take it are your support. they say how the word is used. and they define the dictionary definition of legislature as the power -- we don't use that word power in the sense much anymore. but the power that legislates. the power that legislates in arizona is the people in the capital plus the referendums. >> i will address the cases, justice breyer, if i may, just first respond to justice scalia's assertion. one thing is for sure. if there were any other dictionary that had a different principal meaning we would have seen it in the briefing in this case. but you only have to look at the framers' own use of the term, if i may. charles pinkney, for example, these are collected at pages 39 and 40 of our brief. charles pinkney, for example, who wanted to do away with the second part of the clause that gave congress any power because he thought it was an impairment on the states' rights said "that america is a republic where the people at large either collectively or by representation form the legislature legislature." madison made clear in discussing the constitution that when he referred to the legislatures of the states he meant the existing torts in the states that comprised the legislative branch of government. james willis repeatedly interspersed legislatures, states, and the people acting by -- >> let's say that legislature means the body we normally can think of as the legislature. however, at the time there was no such thing as the referendum or the initiative. so when the kickries to the power, the power that makes laws it was always the legislature. it was never the people at large because there was no such thing. as the referendum. now that there is such a thing as the referendum what about saying okay, legislature means what everybody knows a legislature is. plus the full citizenry which is a level higher of democracy. but what we have here is not a level higher of democracy. it's giving this power to an unelected body of five people that -- could that body as it's constituted here, two of them are elect eded -- or selected by the majority party, two selected by the minority party. what if arizona decided all four would be selected by the majority party? >> justice scalia any delegation question -- the issue in this case is what does the word legislature mean? my friend concedes that whatever the legislature is it can delegate its authority. sought delegation questions -- i mean i'll endorse whatever i believe my friend would say because the arizona legislature has dell gate all manner of time, place and manner regulations to a single person. both the secretary of state and executive officer and the individual counties that set the precinct places the places where you can register et cetera. so delegation, i don't think is in this case. the question is what is the legislature? and if your question is, well, you know now we know that there's something called an initiative, of course that we knew this 120 years ago when the first states first started reserving in their constitutions legislative power to the people by initiative, but just to echo something that justin kagan alluded to in the earlier argument there are -- we're talking here about a construction of the word legislature as to all time, place, or manner regulations. >> why doesn't your interpretation make the words by the legislature thereof entirely superfluous? in other words, why didn't they just say that the rules would be prescribed by each state? because if -- >> because -- >> i'm sorry? >> because as the court explained in smiley, what the framers wanted was it to be done by a legislation. that is, it wanted a, quote complete code of holding elections to be enacted. >> i understood your argument to be that as long as it's an exercise of legislative power that it's satisfied. and if you have for example, a governor doing it it prez xwliem would be pursuant to a delegation either from the people or from the legislature. but either way, nothing happens until there's an exercise of lawmaking power by the state. so it should have been sufficient for the drafters of the constitution to simply say it should be prescribed by each state. whether they do it by referendum, whether they do it by initiative, whether they do it by what is commonly understood to be the legislature. whether they do it by committee. whatever. it's up to the state and saying by the legislature seems az said totally superfluous. >> it is up to the power in each state that makes the laws. and as to justice scalia's hypothetical about could they just delegate it to the chair of the state democratic party or just let one party choose, as justice kennedy's separate opinion in veef and cook versus grayliff points out there, might be other constitutional problems with that arising either from the first amendment or the 14th amendment. but i believe that mr. clement would agree on rebuttal that if the legislature, whatever the ledgegislature means, if the legislature decided look, we are going to delegate this responsibility to the governor that would be a constitutional delegation because it would have been a decision made by the lawmaking body of the state. if i could just make one point and then address justice breyer's question about smiley, hildebrand and hawk it would be deeply, inconsistent with the enterprise in philadelphia to harbor and to effectuate the notion that our framers intended to set aside both a cornerstone principle of federalism and their aim to bind the people as closely as possible to the national house of representatives. yes, it is true that all of the sturm and drang over this clause related to the second part giving congress authority -- and that is because no one questioned the fundamental principles that the sovereign states could choose to allocate their legislative power as they wanted. if there had been any suggestion, the anti-federalists would have been screaming bloody murder that the states could not do so. now smiley specifically said that -- i'm quoting from page 367, as the authority is conferred for the purpose of making laws for the state, it follows in the absence of an indication of a contrary intent that the exercise of the authority must be in accordance with the method the state has chosen, has prescribed for legislative enactments. >> if i may point out, the legislature in both smiley and hilldebrand remained the prime mover. and what he has objected to is taking the legislature out of the picture entirely. >> yes, justice ginberg, we can see that in neither case was the initiative power at issue. but that distinction was never made by the court either in hildebrand or smiley. in fact, smiley says, we find no suggestion in the federal constitutional provision of an attempt to endow the legislature of a state with power to enact laws in any manner other than which the constitution -- >> it's not that -- i'm not -- it's quibbling in a sense about the case. but the question in the case is not about they say the body. i mean, what's the body? everybody agreed it was the legislature. but when the legislature acts in this instance, is it acting as an electoral body? is it acting as a ratifying body? is it acting as a consenting body? as with the acquisition of lands? or is it acting as a legislating body? and that's correct and that's the answer they give. this is a form of legislation. here the question is about the body. >> that's right. the question is are the people by initiative a legislative body? are they the legislature as they themselves have chosen? and in smiley, again, discussing hilldebrand, this is what the court said. and it was because of the authority of the state to determine what should constitute its legislative process that the validity of the requirement of the state constitution in its application to congressional elections was sustained. and again -- >> legislative process there means the process in the legislature. what it takes for the legislature to enact a law -- >> that's -- >> once you assume legislative refers to legislature your whole argument for smiley just disappears. >> the state of arizona, like the states of a near majority -- the constitutions of the states of a near majority have defined the legislative power to include the people by initiative. and again, you know, in atlanta cleaners and dyers which was decided a month after smiley and which this court quoted last week in yates, it said that it is not unusual for the same word to be used with different meanings and thus and i'm quoting, and thus, for example, the meaning of the word "legislature," used several times in the federal constitution, differs according to the connection in which it is employed. depending upon the character of the function which that body in each instance is called upon to exercise, citing smiley -- >> you've said the court in yates. it was a plurality? was it? or am i -- >> yates doesn't itself just to be clear yates doesn't talk about this. it was the decision in yates. i thought -- my point only is that the -- this supreme court in the months following smiley again interpreted smiley -- i was not quoting from yates i was quoting from atlanta cleaners and dyers citing smiley. thank you. >> mr. clement you have five minutes left. >> thank you mr. chief justice. may it please the court, let me start with the definition of "legislature." obviously we can point to our favorite quotes from the framers. there are 24 34, 35 of the blue brief. the critical thing though is not what the framers meant by the legislature when they were talking broadly about plat call theory or the swiss canton of zug. what matters is when they were talking about assigning particular authorities in the constitution to particular components of the state government. and in that context as a number of you have pointed out, there is no doubt every time they assigned an authority to the state legislature they were assigning the authority to the representative body of the people. now, that takes us to the smiley case. and if the definition of legislature in the smiley case is what this case turns on, then with all due respect to my friends on the other side, we win. because smiley specifically talked, as justice briar alluded to, the body question. then it defined the body. and what it said is quote, i'm quoting from smiley not yates or anything else i'm quoting from smiley. the term was not one of uncertain meaning when incorporated into the constitution. what it meant when adopted, it still means for purposes of interpretation. a legislature was then the representative body which made the laws of the people -- >> that's true, buffett i -- see, smiley doesn't help him, i don't think, but it helps you still less. because that was the question in the case. everybody assumed, nobody denied, that it's those people in the bricks over there that are making this law. but the question is are they legislating when they're doing it? nobody denied they were the legislative power. here we have a different question. that is -- >> respect -- >> is this the legislative power received by referendum in the reason i say smiley might help is simply because it says, be a little flexible about that. >> i think it says a little bit flexible about the lawmaking authority of the state legislature. so don't think you've been given some new key that allows you to make laws without the process of the governor being involved at all. i do think climby's very helpful, not only does it answer the body question but the parties disputed this. and the other side in smiley said we win this case because legislature means the lawmaking authority. the other side said, no, it means the body. this court said you're right, it means the body. but critically it's a lawmaking function subject to gubernatorial veto. i think they would have been flabber gasted to find out the legislature which they just defined as the representative body of the people could be cut out entirely. >> i would think, mr. clement that the overriding principle of smiley and hildebrand and twok is when it comes to this particular provision, and this particular provision as compared to the seventeenth amendment which is the comparison and the contrast that hawk sets up. when it comes to this particular provision we need to show a lot of respect to the states' own decisions about how legislative power ought to be exercised. that seems to me the overriding principle of the three cases. >> i think what you have to show is respect for the way that the state says the state legislature can go about lawmaking. but it is completely different to say it's okay to cut the state legislature out of the process entirely. let me avert very briefly to the 1911 act, which of course is since repealed. i think the questions show that the actual statute that's now on the books has nothing to do with this case. but the irony of my friends on the other side relying on the legislation -- the legislative history of the 1911 act is the whole point of the legislative history in 1911 is people in 1911 could read the statute on the books then said, you're going to have the federal default rule kick in until the state legislature redistricts. they realized in 1911 that the state legislature meant the state legislature so they better change that law if they wanted to allow the referendum process. so the 1911 legislative history, not that i think you should particularly spend a lot of time with it, it actually cuts against them on the constitutional issue. it shows that there is a fundamental difference between the legislature and the people. and as the chief justice pointed out, if there weren't, then the framers could have stopped the election clause in each state. they wouldn't have had to say, by the legislatures thereof. of course the other side -- >> you can turn that around and say what that provision shows is really exactly what i just said, is that congress was also on board with this idea that the court had that when you look at that clause, the elections clause, that a lot of respect a lot of deference, has to be given to the state's own definition. >> and just if i may respond, justice kagan i'm happy with giving difference toeference to what the state legislature does. gubernatorial veto override by referendum, something has to sit in committee for 30 stays the strictureses on state legislature are fine but it has to be the state legislature. >> thank you counsel. the case is submitted. with congress out this week we're featuring american history tv in primetime each night beginning at 8:00 p.m. eastern. up next, day-long coverage marking the 50th anniversary of bloody sunday when voting rights advocates on a march from selma to montgomery in alabama were met with violence from state troopers and local police. we twin with the 50th anniversary commemorative event in