At Concurring Opinions, Gerard Magliocca replies to my earlier post on his views of the Arizona State Legislature case. Here is an excerpt:
In several places the Constitution clearly says that only “the Legislature” can do something. For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” I submit that this is not clear as Mike suggests. Why is that? Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V. As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.
Posted at 9:36 AM