well your argument first this morning in case thirteen thirteen fourteen the arizona state legislature versus the arizona independent redistricting commission mr clement mr chief justice and may please the court proposition one o six permanently divest the state legislature of its authority to prescribe congressional districts and read delegates that authority to an unelected unaccountable commission the elections clause of the constitution clearly vests that of the world not just absolutely justice ginsburg it only applies to the congressional record only applies to the congressional redistricting in a course that means that if these commissions are as effective as my friends on the other side say then we will have nonpartisan districts that will elect the state house the state houses the state representatives and the state senate and then those nonpartisan lee chairmen did perfectly representative bodies will be the ones to take care of congressional district things mr  hildebrandt smiley we actually think that those decisions cut in our fate because with those decisions stand for is a smiley in particular when the court was emphatic that the legislature was a term of certain meaning at the constitution at the frame of the constitution that it then what it means now which is a representative body of the people that's the sort of horror to understand because we've made it very clear and smiley and in hilla brain that we're defining legislature in this clause has meaning legislative process with eyes with all due respect i disagree this quirk heard the argument in the briefs and smiley and one side with saying just that the one side was saying all right just like you just means the legislative process in the state whatever that is the other side said no it was the representative body of the people and this court said well actually we don't have to decide that dispute but we certainly agree that it means the representative body of the people just as we said five years earlier in the pockets so what the court said is first the deal with he 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 law making authority so that means that the state legislature has to engage in law making subject minority rights 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 i disagree saying this 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 justice sotomayor but that's not particularly important i actually think the court smiley disagrees with that way of thinking about it what they say is that the delegate remains the same here as in heart it is the state legislature the representative body they say the function differs so when the state legislature is told that it can elect somebody or ratify something then there's no question agency of anybody else in that process but when they're twelve to prescribe rules the court says that's a delegation of law making authority so of course you delegate a course the state legislature does its warmaking pursuant to the ordinary rules and if the ordinary rules provide for detail if they say that it has to spend thirty days in committee then those rules applied the law making 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 the state legislature out entirely and we are going to revisit the framers decision to delegate this important responsibility to the state legislatures and we're going to read delegated to an entirely different body and a body that has the one feature we'll know that a representative body congress could say that at the state level we're going to read delegate this authority from the state legislatures to the state commissions or to independent commissions if congress wants to do it itself on the federal level and set up some sort of federal commission i think that would think they could simply blast what arizona has done because i think that would amount to revisiting the judgment that the framers made in the first sub was i think that they could if they wanted to congress could say we're going to actually take those commission districts and we're going to make them our own and we're going to impose them but that will usually have a federal commission or state commission but if it's the latter it can be only the legislature i think that's right there of course it could be an advisory its proposal to the legislature and the legislature has been can overturn it only by three quarters who i think justice kennedy that would be a harder case and i think that this court however they decide this case to decide that either way now the question i think you would ask is does that residual authority for the state legislature there amount to the authority of prescribe districts and i think you could decide that either way you could say well they're not cut out they have the residual authority and three up with some separate rules that apply only to congressional redistricting and to make it much harder for the state legislature to act your phrase completely could probably answer the question what about voter i d laws what about absentee ballots and so forth there are by referendum right you would say those are ok because the legislature is not completely cut out i would say probably do so i think it might depend on the details a little bit to go into how about that because i thought that the legislature was completely cut out as to most of these things and then you take the two thousand and eleven line mississippi adopting voter id requirements two thousand and seven are again voting by mail nine hundred sixty two arkansas use of voting machines all of the things these things were done by referendum or by initiative with the legislative process completely cleared cut out so would all of those be unconstitutional as well and we can go further i mean there are zillions of these laws yes and  delegate authority away from the state legislatures and to the contrary many of them roughly half i counted twenty seven actually delegate authority to the state legislatures to implement them so if you want to look at the north carolina provision on page were primary argument is the legislature means legislature that there has to be legislative control in none of these laws is there legislative control there is no legislative participation at all  distinguish two situations we could be here saying you know the problem with proposition one o six is that simply that it was done by initiative and not by the legislature but that's actually not a position we would have the same objections here if this were imposed by gubernatorial edict and we know that the rule that should emerge from this case is not that nobody but the legislature can ever do anything with elections on a one off basis and the way we know that is this court has already said that it's ok for a judicial body like a state court to do redistricting on a one off basis or how do you how do you make that consistent with the text that you would the textural argument that you're making the textual argument that you're making is legislature means legislature there's no two ways around that but now you're saying that 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 ok because the legislature isn't involved at all two things justice our position is not the problem here is that somebody else got into the legislature so i mean and purported to do something about elections our problem is once they got in that lane they decided to wrest the legislature from that process entirely on a permanent basis now as a more specific answer to your question i would invoke this court's case in macpherson against blacker which dealt with an analogous clause in article two that gives the state legislatures the authority to prescribe the rules for presidential electors and what this court said there took sort of  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 this delegation of authorities but the words in each in the legislatures there are meant something in the constitution and what they name is it protects the legislature from other parts of the state coming in and permanently resting that authority and i thought that the generally in our separation of powers jurisprudence abdication is just as consequential as aggrandizement another which it doesn't matter what the legislature wants the legislature has said earlier that's fine go do it we don't care about it if there is a problem the problem continues to exist irrespective of whether the legislature protests or  not that's not the way the courts approach this issue in macpherson i would suggest that it's the same way to approach it here which is to say i think the court recognized in macpherson i would certainly say it's the right view that nothing would prevent a state legislature from delegating  itself made the decision right and so i mean that's not the situation we're dealing with here i do think that if what they did is propose a referendum that then permanently rested the authority so they couldn't get it back when it's not completely removed because the legislature in arizona correct me if i'm wrong can seek to overturn with the commission by putting its own referendum before the voters saying please voters change this  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 are not subject to override by referendum the way the maps of the legislature work before proposition one of six passed so i think all the legislature could do is what any citizen to do which is to propose an alternative map by initiative process but whatever that is that's not the primary power to pursue congressional districts or to make election regulations that what's the state legislature in the same plane as the people and so it would be ok if the legislature itself established this commission i would i would take the position that that is ok because that is a delegation of authority if you disagree with me i mean you know you may disagree with me but i think my position is consistent with what this court said in the macpherson case about the authority of the state legislators to prescribe rules for electors they can delegate that the some commission and come up with it that way but if they want to take the authority back as they did in the in the michigan piece of legislation  at issue in macpherson you bet they can do that and if the state tries to stop them from taking it back that's a cop institutional problem sometimes to clement that there is the states had set this independent commission and the independent commission has a veto power on the states redistrict them and other words the state can do redistricting and then it's in its to the dependent commission and the independent commission can say no go back to it again  if i mean i guess it depends a little bit on the details of how that works and whether who's got the last say in the matter they have to veto that's that's supposed to be the independent commission and is it a veto that can be overridden with just a permanent seat does  matter i think it does at least arguably does at the end of the day the way i mean two things about that one is that would give the legislature an awful lot more authority than arizona is allowed here so it is a different case the principle that would allow you to decide that case is to ask yourself the question of whether or not it allows the state legislature to prescribe the congressional districts now you can find of it doesn't because there's not even the end of it does which is why it's a hard case that you can wait for another day deny take out the kind of it doesn't there's a video at the end of this if you think it doesn't then you should decide that case in favor of the state legislature but the bad thing what so this is what we're going to have to do for every time that they set up some process and which there's some independent commission involved and what we're going to have to ask is what exactly whether or not it's consistent with the constitution and what the constant know that it's that's just i mean tell me exactly how we're going to decide all these cases in which and in five three commission some role but not not to 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 and let's look at the commissions that exist in the real world ok you have some that are purely advisory then nothing in our theory suggests that there's they are constitutionally problematic you have others that are what are called back up commissions which is they don't have a veto but if the legislature because there's a stalemate one house is the democrats one house republicans they just can't get it done in a backup commission comes in i don't think that's probably one of the commission says we're going to give you two maps the legislature has to pick one and only one i would think that that's probably unconstitutional but i don't think that i mean you know obviously if i want to stand on constitutional and we don't pass in the legislature and leaving it then to a third party who is not the legislature why is that constitutional that's what you just said you have to say and 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 somebody else is going to provide that rule now if they don't provide it the legislature could stalemate what happens in the real world of course you can't use the existing maps because they violate one propos one person one vote principles and so the state courts come in now if question 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 in there to suggest so but if i read it differently to say that what the election cla 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 governance one is that the federal interest the federal there actually is a tremendous amount in this particular clause if you're making the point that there is less about the first subclause than the second subclause i suppose i would grant you that but part of the reason there is less discussion of the first sub clause is it seems so remarkably obvious to the framers that if this was going to be done at the state level by anyone of course it would be done by the representative body of the people and it's not like they didn't know about popular law making it's not like they didn't have the conception of what a referendum would be or an initiat democracy was i mean 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 five and had alternative mechanisms that the federal congress could choose to provide for ratification they keep the choice of state legislatures or the people in convention so the congress and the framers understood the difference between direct democracy and representative democracy and they made a conscious choice and indeed it's really hard to argue that the framers didn't know the difference between the people in the state legislatures in the context of federal elections because there they are creating house elected by the people and a senate pointed by the state legislatures and when they get to the voter qualification clause they say well the people are going to vote for the congress and how do we define the people who get to vote for the congress they're the same people that get to vote who are the most numerous body in the state house so at various points the obviously demonstrating that with a comment that suggests a very popular rule and and an occasion you sent something like this and legislature means a legislature and that's what it means and so a legislature has to do all of those things but you've made many many exceptions to that over the course of the last twenty 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've said that these kinds of different schemes about the interaction between a legislature and guys or a commission are all going to be have to reveal it on a case by case basis to determine whether the legislature has primary control and when you get through with all of that the sort of of the originalist argument that a legislature means a legislature but we are miles away from that all right well i don't agree with that justice kagan i think what i am doing is essentially channeling this court's decision in smiling which said of course th he is the state legislature now when the state legislature gets to do something then the questions of whether the constraints that are put on the state legislature actually drawing these lines there may be some hard questions about that but there's no hard question here this isn't any of your hypotheticals if the election clause means anything it means that you can't completely cut out of the process to the state legislature entirely on a permanent basis suppose that  legislative district replanted challenge either of the one person one vote rule or move the voting rights act and it goes to a state or federal court and it goes a year before the election there's a state court have an obligation of the constitution to simply pass on the validity or invalidity of the plan and if it doesn't pass send it back to the legislature is going to do its own with an election of pope as i read this this court's cases just kennedy what they say is that stuart this the curtain that in that instance first of all this should be a preference for the state courts over the federal courts and then the stake favors the legislative process so what they do is if there is time for the legislature to go back and time and time again that we district is primarily we're talking about we're talking about what's required so if we were in your favor we're going to have to tell every word this involved in the redistricting litigation that has been submitted to the most part that's what this court has already said i mean white the wiser says that in the initial challenge phase that if there's time you let the legislature do it now this court has also said certainly the redistricting plan  approved has to have a fixed deadline the of course the legislature can i assume there's a conforming plan but the plan stays in place until it does and it seems to me that that's as much as good displacement is what constitutionally compliant plan and i read might be wiser to say that if there is that kind of time then you allow the state legislature to do it because it's their primary task then the second question is there's not time and then there is a judicial plan and let's say the first cycle of elections takes place in the judicial plan now i actually read this court's cases as generally suggesting even then there's nothing that prevents the state legislature certainly from going in and redistricting and this court in the perry case for example rejected the idea that it's like what you get one shot at this and then you're done for the whole the senate census now there's at least one state colorado that's basically said that if you get into that situation then you've got to live with the judicial plan until the next census but then the legislature still kicks in and has a primary role now i'm inclined to think that what colorado is done is inconsistent with the elections clause but however you decide that issue you could decide it either way your position in accepting our argument here is not deign the answer that question and that's why i'm really happy to address the hypotheticals but i do think it's worth remembering that this is about the most extreme case that you're going to have so if the election 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 could take the entire thing away on a permanent basis and give it to a commission that's defining feature is that it's not presented if only i may reserve the balance legislature is asking a federal court for assurance that if it passed a certain kind of law which it hasn't even alleged that it's going to pass the law would be enforced by a defendant state official present even denied that she wouldn't force it we don't normally conceive of the power to legislate not of a particular plan or of a particular law and plan this is the removal look power from the legislature no it doesn't your honor because i don't think there's anything that actually as a practical matter prevents the legislature from passing a bill that would redistrict the state which they believe in good faith that they can do under their view of the elections was their there are numerous cases some of which are cited in our brief page thirteen in which the arizona legislature has passed laws that conflict with a popular initiative or conflict with the arizona constitution and there isn't a courts to treat them as laws and the consequence of their passage is and their own constitution that they were going to buy a plane ticket to go see the nile crocodile in order to complain about observational crocodile the legislature here should allege that it's going to do everything in its power to bring this to a head but let me put to one side that they haven't they just have to under their theory just allege they planned to exercise what had up to this point in their normal authority to engage in the redistricting we suspect affected to litigating it implies that they have some interest in doing that i think they could be said of almost any litigation and it may be difficult for them to actually coalesce on some particular redistricting plan but i don't think reason to excuse them from the normal standing requirements but they could just put their the absence of an allegation they passed a law to one side for a second let's assume they had passed their own legislative redistricting plan presented it to the secretary of state and secretary of state 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 that they would have standing here because again legislatures don't have an interest in the  enforcement of the laws that they pass is a general matter happen interested in the constitutional power state well let me give you an example that i think it's fairly analogous to this case and really crystallizes the point let's suppose that congress passed a law that preempted state regulat in some area and let's further suppose there were a colorable constitutional challenge to that wall now i don't think anyone would believe that the state legislature acting in its own name would be the proper party to bring that constitutional challenge on the theory that it police powers had been infringed by the preemptive federal statute and although this case arises under the elections clause the elections clause it doesn't give the state any more law making power than it would ordinarily have  affected the that goes to the balance and we say will a legislature doesn't have standing because of the people out there that are more directly if they could we say that and i know your honor and i think in fact you say quite the opposite which is that even if it would mean no one would have standing to sue that's not a reason to find standing and we think the legislature simply doesn't have standing to sue here regardless of whether anyone else does but if the court were to reach the merits i want to make a couple of points on that statutory section two a c issue and 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 and construing the nearly word for word identical language of the nine hundred eleven act but i don't understand how to really see even applies it's meant to apply when the  best understood in context the neighboring federal statute two u s c to see requires that as a matter of federal statutory law states be divided into districts for the purpose of electing congressional representatives that makes it a question of federal statutory law how that district in requirement is met and whether it is met and that's the question that section two acnc section two ac says one of these default procedures that we prescribe is going to apply until a state is redistricted in the  manner provided by the law there are no i think the necessary and logical corollary of that is that once the state is redistricted in the manner provided by the law there of those of 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 hildebrandt that is exactly what they would have expected him to print in construing the nearly identical language of the nine hundred eleven act said first of all that the statutory language had the express purpose to provide the direct as the chief justice of 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 the state but that's not what this purpose not what the statute says now this statute may have been in that day and on the assumption that that would be constitutional but it is not the exercise of congressional authority implementing that is just an assumption on which a statute this otherwise completely irrelevant to this case may have been acted when i do think it's quite important that congress was legislating against the backdrop of hildebrand hildebrandt interpreting the same statutory language effectively the same in the one thousand eleven act found that it had the express purpose to provide that direct democracy procedures could be used in redistricting becan gross's exercising its power to make effectuate that result in so far as reporting from the legislature and we require every state to pass it by ref we just sure thing by referendum that would are you is your position that congress has the power to override the constitution well your honor i don't think that would exactly be overwriting 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 important reasons first congress here isn't trying to force upon states some process that the state doesn't congress is simply trying to recognize that the federal statutory requirement of destructing is satisfied going to state districts in the manner that 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 is that in this circumstance it's not longer it is whom no not if the same thing violates the constitution i mean just because congress agrees with the state that they can do it does that make it constitutional the objection here is a constitutional objection we don't 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 want the state legislature could have given this power to the commission now under the second subclause of the elections clause congress can do anything that a state legislature can do which means congress could also get this power to the commission the only difference between my friend scenario and mine is that my functionary of 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 of the sort that it's allowed to pass into the same in subclause the elections clause it's not something that a state legislature can override and it's simply a consequence of congress's superseding authority and can grow into thorny under the second step was the elections  also think that the constitution the second clause be used to revise the first clause that's what we're talking about here the second clause can certainly congress can do something on its own but can congress should use the second clause to revise what the first clause says or yes your honor one thing i would want to emphasize is that i do think the court settled this issue in hildebrand when it said that the predecessor to section two ac was simply doing something that the constitution expressed we 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 up was 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 that the framers would have been astonished to consider that federal district courts have jurisdiction to adjudicate and more fundamentally is simply misconceived arizona  accepted definition of that term in the founding generation and we've cited both now webster and samuel johnson's dictionaries but there are if there was an accord it was understood that legislature meant you 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 nobody wants one provision of the constitution but that clearly has your meaning and i looked through up through them all i can't find a single one well the one that most clearly has our meaning which accords with understanding is the one that this court has said in hildebrand and smiley and this one this is the only one i this may or may not be the only one  so you're right justice kennedy there's no question as this court has explained repeatedly first in smith versus hawke which distinguished hilda bray and the legislative power that is addressed in article section one from the election of senators in article one section three and again in smiley that made it clear that the as this court reiterated just last week in gates that the explained smith versus hawk which was which was decided which was a an article five question of the meaning of the word legislature for purposes of ratification in smith versus this court said that is the power to elect and the power to ratify that specifically computed with the elected representative body and it used those as examples the quote said where very 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 of part of the state of arizona for example those all those provisions were used the term legislature doesn't mean anything other than the  conventional meaning of legislature i don't i don't know the answer to that question might you think it might have this quote has never said that it doesn't it's never said that it does it's it has focused a lot of senators in the legislative body and the article one section four 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 smiley which my friend embraces all right like you too 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 nine hundred eleven it helps the government with its statutory argument because a different statute uses similar words that we don't know if it was with the same intent smiling talks about a sitting legislature and asks whether its exercise of map drawing power is a legislative exercise or say more like an impeachment exercise it doesn't talk about what's at issue here where you have people outside that building making the judicial making a legislative decision so i didn't see those two cases helping you that much the pleas argue to the contrary but i think the great open question here is what happens when legislative power over time expand us from a group of people sitting in the state's capital to those people plus a referendum and there i don't find much help in the cases one way or the court's opinion last week and yates the atlanta cleaners and direst case strongly support the reading of the word the meaning of the word legislature that we advocate and that was in fact the consensus definition of legislature and i agree with you that i'm the consensus definition you can give us a single instance in the constitution in which it is clearly used in which they come since a step in issues clearly use defines the dictionary definition of legislature as the power we don't use that word power in the sense much anymore but the power about legislates the power that legislates in arizona  had a different principle meaning we would have seen it in the briefing in this case but we have to look at the framers use of the term if i may charles pinkney for example these are collected at pages thirty america is a republic where the people at war either collectively or by representation through the legislature madison made clear in discussing the constitution that when he referred to the legislatures of the states he med's the existing authorities in the states that comprise the legislative branch of government james wilson repeatedly legislature however at the tomb there was no such thing as the referendum or the initiative so referred to the power or the power that makes laws it was always the legislature it was never the people at large because there was no such thing as as the referendum now that there is such a thing as a referendum what about saying ok legislature means what everybody knows the legislature is or would be selected by the majority party well it just absolutely justice scalia in any delegation question that 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 so the delegation questions i mean i'll endorse whatever i believe my friend would say because the arizona legislature has delegated  place and manner regulations to a single person both the secretary of state and executive officer and the the individual counties that set the precinct places the plate the places where you can phone where you can register etc 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 is something called an initiative of course that we need this you know one hundred twenty years ago when the first states first adopted started reserving in their constitutions legislative power to the 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 congressional elections  i understood your argument to be that saw as it's an exercise of legislative power that it's satisfied and if you have for example a governor doing it it presumably 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 law making power by the state so it should have been sufficient for the drafters of the constitution to simply say should be prescribed by each state whether they do it by referendum but they do it by an issue of where they do it by what hypothetical about you know could they could they just delegated to the chair of the state democratic party or just let one party choose as justice kennedy separate opinion in vith and i think cook first greylock he points out there might be other close to two tional problems with that arising either from the first amendment or the fourteenth amendment but i think that i believe that if mr clement would agree that if the legislature whatever the legislature means if the legislature decided we're going to delegate this responsibility to the governor that would be a constitutional delegation because it would have been a decision made by that well making body of the state if i could just make one point and then address cestus prior's question about smiley hildebrand and hawke it would be deeply deeply inconsistent with the enterprise in bind the people as closely as possible to the national house of representatives yes it is true that i love the storm and drawing over this clause related to the second part giving congress a 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 be it the federalists would have been screaming bloody murder that the states could not do so now smiley specifically said that quoting from page three sixty seven 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 m place 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 in the luck or 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 it is and then that's correct and that's the answer they get this is a form of legislation here that question is and it was be clear as of the authority of the state to determine what should constitute its legislative process that the polluted any of the requirement of the state constitution in its application to congressional elections w refers to legislature your whole argument for smiley just disappears the the state of arizona like the states of a near majority of the constitutions of the states of the near majority have defined the legislative power to include the people by initiative and again you know and that led to cleaners and diaries which was decided a month after smiley and which this court quoted last week and it said that it is not unusual for the same word to be used with different meanings and thoughts and i'm quoting and thoughts for example the meaning of the word legislature use several times in the federal constitution differs according to the connection in which it is employed depending upon the character of the folks in which that body in each instance is called applied to exercise citing smiled you said the court  court in the months following smiley again and interpreted smiley in the wild was not quoting from yates i'm quoting from from atlanta cleaners in dyer's itself citing smiley thank you clement you have five minutes left thank you mr chief justice it may please the court let me start with the definition of legislature obviously we can point to our favorite quotes from the framers there at twenty seven and thirty and thirty five of the blue brief the critical thing though is not what the framers meant by the legislature when they were talking broadly about political theory or the swiss canton of the 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 in 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 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 it's just sprouted loaded to the body question and 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 he adopted it still means for purposes of interpretation a legislature was then the representative body which made the of the bricks over there that are making this law but the question is are they legislating when they are doing it so they won't nobody denied they were the legislative power here we have a different question with that in my career is this the legislative power when you see by referendum and the reason i say smiley might help and simply because it says be a little flexible about that i think it says a little bit flexible about the war making authority of the state legislatures 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 smiley's very helpful because not only does it answer the body question but the parties disputed this and the and the other side in smiley said we win this case because legislature means the law making authority and the other side said no it means the body and this court said you're right it means the body but critically it's a war making function therefore it's subject to the gubernatorial veto i think th would have been flabbergasted to find out that the legislature which they just defined as the representative body of the people could be cut out entirely but i would think mr clement that the overriding principle of smiley and  hildebrand and walk is that when it comes to this particular provision and this particular provision as compared to the seventeenth amendment which is that comparison and the contrast that hawke sets up when it comes to this particular provision we need to show a lot of respect to the state's own decisions about how the legislative power ought to be exercised and 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 warming but it is completely different to say it's ok to cut the state legislature out of the process entirely let me avert very briefly to the nine hundred eleven act which of course the since repealed i think the question show that the actual statute that's now in 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 nine hundred eleven act is the whole point of the legislation slate of history in change that law if they wanted to allow the referendum process so the nine hundred eleven history not that i think you should particularly spend a lot of time with that but 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 at in each state they would have had to say by the legislators they're up now of course the other side you can turn that around and say what that provision shows it's 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 just i'm happy with giving deference to what the state legislature does and if that's constrained in the state by the rule that you have a gubernatorial veto override by referendum something has to sit in committee for thirty days then the restrictions on the state legislature are fine but it has to be the state legislature and thank you counsel the case is submitted