                                                                                 [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT

                                           _____________________               FILED
                                                                      U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                No. 11-14554                JAN 31, 2012
                                                                             JOHN LEY
                                           _____________________              CLERK



                                 D.C. Docket No. 1:10-cv-23968-UU

CORRINE BROWN,
MARIO DIAZ-BALART,

lllllllllllllllllllllllllllllllllllllll l                            Plaintiffs - Appellants,

FLORIDA HOUSE OF REPRESENTATIVES,

llllllllllllllllllllllllllllllllllllllll                     Intervenor Plaintiff - Appellant,

                                                  versus

SECRETARY OF STATE OF THE STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllll                                 lDefendant-Appellee,

ACLU OF FLORIDA,
LEON W. RUSSELL, et al.,

llllllllllllllllllllllllllllllllllllllll               Intervenor Defendants - Appellees.
                                      ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                       (January 31, 2012)
Before DUBINA, Chief Judge, MARCUS and FAY, Circuit Judges.

MARCUS, Circuit Judge:

      At issue today is whether a state constitutional provision establishing

standards for congressional redistricting that was approved by the people by

initiative is contrary to the Elections Clause of the United States Constitution.

Article I, Section 4 of the United States Constitution provides that the “Times,

Places and Manner of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof.” Appellants Corrine Brown

and Mario Diaz-Balart, members of the United States House of Representatives,

along with the Florida House of Representatives, appeal from a district court order

granting final summary judgment to the appellees, the Florida Secretary of State

and various intervening parties. The appellants claim that Amendment Six is

unconstitutional because it was enacted by citizen initiative rather than by the

state’s legislature in the ordinary “legislative process.” Moreover, they say that

Amendment Six -- even if properly enacted pursuant to Florida’s legislative

process -- imposes substantive requirements that far exceed the state legislature’s

Elections Clause power.

      We are unpersuaded. In the first place, the Florida voters’ act of lawmaking



                                          2
according to the state’s expressly enumerated lawmaking process is fully

consistent with the commands of the federal Constitution’s Elections Clause, and

consonant with the understanding given to the Elections Clause by the Supreme

Court in two cases that all parties agree are controlling -- Ohio ex rel. Davis v.

Hildebrant, 241 U.S. 565 (1916), and Smiley v. Holm, 285 U.S. 355 (1932). As

for the second claim, we also have little difficulty in concluding that the factors

enumerated in Amendment Six have been for many years commonly considered by

legislative bodies in congressional redistricting and long accepted by the courts as

being lawful and consistent with the powers delegated to the state legislatures by

the United States Constitution. Accordingly, we affirm the order of summary

judgment entered by the district court.

                                           I.

      According to the Florida Constitution, the people of Florida may use an

initiative process to amend any part of their constitution. Fla. Const. art. XI, § 3

(“The power to propose the revision or amendment of any portion or portions of

this constitution by initiative is reserved to the people . . . .”). Once the backers of

an initiative petition obtain sufficient signatures in support, the proposed

amendment appears on the general election ballot. See id. §§ 3, 5(b). A proposed

amendment passes if it is approved by at least sixty percent of those voting on the

                                           3
measure. Id. § 5(e).

        In an initiative petition approved by the Florida Secretary of State on

September 28, 2007, FairDistrictsFlorida.org proposed a constitutional amendment

to Article III of the state constitution that would set some standards for the

legislature to use in the congressional redistricting process. The initiative petition

obtained sufficient signatures, and the proposal was placed on the November 2,

2010, general election ballot as Amendment Six. Amendment Six passed,

garnering the approval of over sixty-two percent of those voting.1

        Amendment Six was codified as Article III, Section 20 of the Florida

Constitution. Article III of the Florida Constitution addresses the nature and

power of the state legislature. See Fla. Const. art. III. The newly added Section

20 reads this way:

        SECTION 20. Standards for establishing congressional district
        boundaries.—In establishing congressional district boundaries:

        (a) No apportionment plan or individual district shall be drawn with the
        intent to favor or disfavor a political party or an incumbent; and districts
        shall not be drawn with the intent or result of denying or abridging the
        equal opportunity of racial or language minorities to participate in the
        political process or to diminish their ability to elect representatives of
        their choice; and districts shall consist of contiguous territory.


        1
        At the same election, Florida voters also approved Amendment Five, which sets identical
standards for the legislature to use in drawing state legislative districts. See Fla. Const. art. III, § 21.
The appellants’ constitutional challenge is limited to Amendment Six.

                                                     4
       (b) Unless compliance with the standards in this subsection conflicts
       with the standards in subsection (a) or with federal law, districts shall be
       as nearly equal in population as is practicable; districts shall be compact;
       and districts shall, where feasible, utilize existing political and
       geographical boundaries.

       (c) The order in which the standards within subsections (a) and (b) of
       this section are set forth shall not be read to establish any priority of one
       standard over the other within that subsection.

Fla. Const. art. III, § 20.2

       On November 3, 2010, Plaintiff-Appellants Corrine Brown and Mario Diaz-

Balart, members of the United States House of Representatives from Florida,

challenged the constitutionality of Amendment Six in the United States District

Court for the Southern District of Florida. They sought a declaratory judgment

that Amendment Six was invalid under the Elections Clause of the U.S.

Constitution, as well as injunctive relief prohibiting its enforcement. The

plaintiffs later amended their complaint and voluntarily dismissed a defendant,

leaving Kurt Browning, in his official capacity as Florida’s Secretary of State, as

the sole defendant. The district court allowed the Florida House of

Representatives to intervene as a party plaintiff and several individuals and

       2
        In May 2011, the Department of Justice precleared Amendment Six pursuant to Section 5
of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Letter from T. Christian Herren, Jr., Chief,
Voting Section, U.S. Dep’t of Justice Civil Rights Div., to Andy Bardos, Special Counsel to the
President of the Fla. Senate, and George Levesque, General Counsel to the Fla. House of
R e p r e s e n t a t i v es      (M ay       3 1 ,     2 0 11 ),      avail a b l e         a t
www.flsenate.gov/UserContent/session/redistricting/20110531_usDOJ_PreclearA5A6.pdf.

                                               5
organizations to intervene as defendants.3

       All of the parties moved for summary judgment, and, by order dated

September 9, 2011, the district court granted final summary judgment in favor of

the defendant and defendant-intervenors.

       The district court looked to the history of the Elections Clause and to

Supreme Court precedent in construing the meaning of Article I, Section 4 and its

application to Amendment Six. The court squarely rejected the claim that

Amendment Six violates the Elections Clause because it was enacted outside the

legislative process. The district court explained that controlling Supreme Court

case law established that a state constitutional amendment validly enacted

pursuant to state law may restrict the legislature’s exercise of its Elections Clause

power. The court also rejected the argument that Amendment Six amounted to an

unconstitutional substantive limitation on the state legislature’s power to regulate

elections. Finally, the district court determined that Amendment Six did not

implicate Supreme Court precedent invalidating regulations that “favor or disfavor

       3
         Defendant-Intervenors are: (i) American Civil Liberties Union of Florida (ACLU-FL); (ii)
Howard Simon, Benetta M. Standly, Susan Watson, and Joyce Hamilton Henry, residents and
registered voters of Florida who are members and officers of ACLU-FL; (iii) Florida State
Conference of NAACP Branches; (iv) Democracia Ahora; (v) Leon W. Russell, Patricia T. Spencer,
Carolyn H. Collins, Edwin Enciso, and Stephen Easdale, residents and registered voters of Florida
who voted for Amendment Six; and (vi) Senator Arthenia L. Joyner, Representative Janet Cruz,
Representative Luis R. Garcia, Jr., Representative Joseph A. Gibbons, and Representative Perry E.
Thurston, Jr., members of the Florida Legislature and potential U.S. congressional candidates.

                                               6
. . . candidates” or “dictate electoral outcomes,” see U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 833-34 (1995), because the conditions imposed by

Amendment Six favor no one.

      The plaintiffs and plaintiff-intervenor timely appealed to this Court. In

view of the shortness of time before the national elections this fall, we expedited

oral argument and our review.

                                          II.

      We review a district court’s grant or denial of summary judgment de novo.

Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). “Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

the nonmoving party, presents no genuine issue of material fact and compels

judgment as a matter of law in favor of the moving party.” Id. at 836-37; accord

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In

this case, both sides agree that there are no material facts in dispute.

      It is abundantly clear from the text of the Constitution that the states have

no inherent authority to regulate congressional elections. Rather, because federal

offices are the creature of and “arise from the Constitution itself,” any state

authority to regulate election to federal offices “had to be delegated to, rather than

reserved by, the States.” Cook v. Gralike, 531 U.S. 510, 522 (2001) (alteration

                                           7
omitted) (quoting U.S. Term Limits, 514 U.S. at 804-05). The Supreme Court has

recognized that “States may regulate the incidents of [congressional] elections . . .

only within the exclusive delegation of power under the Elections Clause.” Id. at

523. Clause 1 of Article I, Section 4 of the U.S. Constitution, commonly known

as the Elections Clause, specifically delegates regulatory power to the states to

prescribe the manner of selecting members of Congress. It provides in full:

       The Times, Places and Manner of holding Elections for Senators and
       Representatives, shall be prescribed in each State by the Legislature
       thereof; but the Congress may at any time by Law make or alter such
       Regulations, except as to the Places of chusing Senators.

U.S. Const. art. I, § 4, cl. 1.

       The appellants’ basic argument boils down to this: Amendment Six violates

the Elections Clause because the amendment was not enacted through the state’s

legislative process. Rather, the governing provision was unlawfully enacted by

citizen initiative (albeit pursuant to the constitution of the state), and the

codification process was therefore not prescribed “by the Legislature thereof.” In

fact, they claim, allowing the people to proceed in this way would effectively read

the “Legislature” out of the Elections Clause, denuding the legislature of its

textual authority. Thus, the key question we face is how to read the phrase “by the

Legislature thereof.”



                                            8
       The text of the Elections Clause itself does not provide the answer. Nor

does the Clause’s history. Debate about the Elections Clause prior to the

ratification of the U.S. Constitution focused almost exclusively on the Clause’s

second part, which allows Congress to supervise or alter the states’ exercise of

their Elections Clause power. See Joseph Story, Commentaries on the

Constitution of the United States § 409, at 291 (Carolina Academic Press 1987)

(1833) (noting that the Elections Clause had vigorous opponents, whose

“objection was not to that part of the clause, which vests in the state legislatures

the power of prescribing the times, places, and manner of holding elections,” but

“to the superintending power of congress to make, or alter such regulations”).4

       4
         Starting at the Constitutional Convention itself, a vocal opposition argued that Congress
should not be able to trump the states’ electoral regulations. See 2 The Records of the Federal
Convention of 1787, at 240 (Max Farrand ed., rev. ed. 1974) (relaying that two delegates at the
Convention moved to strike the second part of the Elections Clause because the states “could [and]
must be relied on in such cases”). Opponents contended that the second part of the Elections Clause
provided an unnecessary and unlimited power that might be abused by Congress, and that sole
control should instead rest with the states, which better represented the people. See, e.g., Federal
Farmer, No. 3 (1787), reprinted in 2 The Founders’ Constitution 249, 249 (Philip B. Kurland &
Ralph Lerner eds., 1987) (“[M]any evils may flow from that part [of the Clause] which authorises
the congress to regulate elections--Were it omitted, the regulations of elections would be solely in
the respective states, where the people are substantially represented; and where the elections ought
to be regulated . . . .”). Supporters countered that such abuses were extremely improbable, and that
congressional supervision was essential for the preservation of the federal government itself -- since
states might otherwise neglect or refuse to provide for the election of representatives -- and might
be useful in the future to afford uniformity in national elections. See, e.g., The Federalist Nos. 59-61
(Alexander Hamilton) (arguing, respectively, that Congress needed the power to intervene, because
otherwise a few states intent on dissolving the union could use their Elections Clause power to
prevent congressional elections from being held; that concerns about congressional abuse of its
oversight power were “chimerical”; and that such supervision could prove advantageous by allowing
for uniformity in the time of congressional elections); Debate in Virginia Ratifying Convention, in

                                                   9
But we are concerned instead with the first part of the Clause, which delegates

regulatory power over elections to the states in the first instance. The Framers

said precious little about the first part of the Clause, and they said nothing that

would help to resolve the issue now before us: what it means to repose a state’s

Elections Clause power in “the Legislature thereof.”5


2 The Founders’ Constitution, supra, at 266, 268 (statement of James Madison) (explaining that
electoral regulation must be “subject to the control of the general government, in order to enable it
to produce uniformity, and prevent its own dissolution”).

         This debate, although focused on the division of power between the federal and state
governments rather than within the states themselves, sheds some light on the Framers’ intentions
in delegating the initial regulatory power to the state “Legislature[s].” Not surprisingly, those
considering the Constitution recognized the distinction between the state legislature and the people
themselves. See, e.g., Debate in Massachusetts Ratifying Convention, in 2 The Founders’
Constitution, supra, at 254, 259 (statement of Judge Francis Dana) (noting that although Senators
were to be appointed, Representatives would “proceed directly from the people, and not from their
substitutes, the legislatures”). But it was hoped that the state legislature, in exercising its Elections
Clause power, would act according to the will of the people. See, e.g., Debate in New York
Ratifying Convention, in 2 The Founders’ Constitution, supra, at 268, 269 (statement of John Jay)
(“The will of the people certainly ought to be the law, but the only question was . . . whether the will
of the people, with respect to the time, place, and manner of holding elections, ought to be expressed
by the general government, or by the state legislatures.”); Federal Farmer, No. 12 (1788), reprinted
in 2 The Founders’ Constitution, supra, at 253, 254 (arguing that electoral regulations “ought to be
left to the state legislatures, they coming far nearest to the people themselves”). Indeed, it was
suggested that the Elections Clause power was delegated to the legislature simply because it was the
only body within a state capable of exercising such power. See, e.g., The Federalist No. 59, at 398-
99 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“[T]here were only three ways, in which this
power [over elections] could have been reasonably modified and disposed, that it must either have
been lodged wholly in the National Legislature, or wholly in the State Legislatures, or primarily in
the latter, and ultimately in the former.”); Debate in Massachusetts Ratifying Convention, supra, at
255 (statement of Caleb Strong) (“I know of but two bodies wherein [the power to regulate federal
elections] can be lodged -- the legislatures of the several states, and the general Congress.” (emphasis
removed)).
        5
         At the Constitutional Convention, the delegates considered the two parts of the Elections
Clause separately. The only recorded discussion regarding the first part of the Clause was a proposal

                                                   10
       The Supreme Court, however, has provided a clear and unambiguous

answer to this question, twice explaining that the term “Legislature” in the

Elections Clause refers not just to a state’s legislative body but more broadly to the

entire lawmaking process of the state. The Court had occasion to construe the

term “Legislature” in the Elections Clause in two principal cases -- Ohio ex rel.

Davis v. Hildebrant, 241 U.S. 565 (1916), and Smiley v. Holm, 285 U.S. 355

(1932). On one occasion, the Court held that the people (through a referendum

process) could use a state’s constitutionally provided veto power to reject the state

legislature’s congressional redistricting plan, and, then on another, that the

governor could lawfully do so as well.

       Hildebrant was the first case to consider a direct challenge under the

Elections Clause to the method of enacting electoral regulations. The Ohio

Constitution expressly granted to the people the right “by way of referendum to

approve or disapprove by popular vote any law enacted by the general assembly,”

and the people exercised this power to disapprove the general assembly’s



to restrict its application to the election of Representatives only, on the theory that the state
legislatures’ right to regulate the times, places, and manner of the election of Senators was inherent
in the right to appoint them. 2 The Records of the Federal Convention of 1787, supra, at 239-40.
After rejecting this proposal, the delegates proceeded to a vote on the first part of the Clause, which
was unanimously approved. Id. at 240. As for the period between the Convention and ratification,
we have been unable to find any record of any discussion of the first part of the Elections Clause at
the state ratification debates or in the Federalist Papers or any other contemporaneous writings.

                                                  11
congressional redistricting plan. Hildebrant, 241 U.S. at 566. The Supreme Court

held this use of the referendum power to be constitutional. Id. at 570. The Court

first observed that, “so far as the state had the power to do it, the referendum

constituted a part of the state Constitution and laws, and was contained within the

legislative power.” Id. at 568. Having posited that the referendum power was an

integral part of the legislative process, the Court rejected the claim that using this

referendum power to strike a redistricting act violated the Elections Clause. Id. at

569. The Court explained that any such challenge “must rest upon the assumption

that to include the referendum in the scope of the legislative power is to introduce

a virus which destroys that power, which in effect annihilates representative

government, and causes a state where such condition exists to be not republican in

form,” but that a challenge under the republican-form-of-government guarantee of

Article IV, Section 4 of the U.S. Constitution is not justiciable. Id.

      Four years later, the Court discussed Hildebrant in Hawke v. Smith, 253

U.S. 221 (1920). In Hawke, the Court held that Ohio’s referendum power could

not be used to disapprove the ratification of a proposed amendment to the U.S.

Constitution, because Article V of the U.S. Constitution requires that ratification




                                          12
be “by the Legislatures.” Id. at 226 (quoting U.S. Const. art. V).6 The Court

rejected the argument that Article V merely requires “ratification by the legislative

action of the states through the medium provided” in state law, reasoning that

ratification “is not an act of legislation within the proper sense of the word.” Id. at

229. What is notable for our purposes is that the Court distinguished Hildebrant

because “Article 1, section 4, plainly gives authority to the state to legislate within

the limitations therein named,” and “[s]uch legislative action is entirely different

from the requirement of the Constitution as to the expression of assent or dissent

to a proposed amendment,” an act in which “no legislative action is authorized or

required.” Id. at 230-31.

       In Smiley, the Court expanded upon this functional approach to construing

the word “Legislature.” Smiley involved a challenge to the Minnesota governor’s

exercise of his veto power, contained in the state constitution, against a

congressional redistricting act passed by the state legislature. 285 U.S. at 361-63.

The Court framed the issue as being whether the Elections Clause “invests the

Legislature with a particular authority, and imposes upon it a corresponding duty,

the definition of which imports a function different from that of lawgiver, and thus



       6
         Article V also allows for the ratification of constitutional amendments by state conventions,
but that method of ratification was not at issue in Hawke. Hawke, 253 U.S. at 225-26.

                                                 13
renders inapplicable the conditions which attach to the making of state laws.” Id.

at 365. The Court explained that the term “legislature” means different things in

different constitutional provisions, depending on “the function to be performed.”

Id. Thus, a state legislature may act as an electoral body, ratifying body,

consenting body, or lawmaking body, id. at 365-66, but the Court concluded that

the Elections Clause “embrace[s] authority to provide a complete code for

congressional elections” and thus “involves lawmaking in its essential features and

most important aspect,” id. at 366.

      And because the Elections Clause broadly contemplates the exercise of the

lawmaking function, the state legislature can be constrained by restrictions

imposed by the state’s constitution, such as those embodied in a gubernatorial

veto. Writing for the Court, Chief Justice Hughes explained:

             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
      which the state has prescribed for legislative enactments. We find no
      suggestion in the federal constitutional provision of an attempt to endow
      the Legislature of the state with power to enact laws in any manner other
      than that in which the Constitution of the state has provided that laws
      shall be enacted. Whether the Governor of the state, through the veto
      power, shall have a part in the making of state laws, is a matter of state
      polity. [The Elections Clause] neither requires nor excludes such
      participation. And provision for it, as a check in the legislative process,
      cannot be regarded as repugnant to the grant of legislative authority.



                                          14
Id. at 367-68 (emphases added). The Court observed that the Framers had been

aware of the gubernatorial veto, id. at 368, yet they had expressed no intention to

exclude such a “restriction imposed by state Constitutions upon state Legislatures

when exercising the lawmaking power,” id. at 369. Ultimately, the Supreme Court

held that nothing in the Elections Clause “precludes a state from providing that

legislative action in districting the state for congressional elections shall be subject

to the veto power of the Governor as in other cases of the exercise of the

lawmaking power,” id. at 372-73, because the Elections Clause confers no

authority upon the state legislature to redistrict “independently of the participation

of the Governor as required by the state Constitution,” id. at 373.

      The Court in Smiley added that Hildebrant was also based on this functional

analysis of the term “Legislature.” Id. at 372 (“[I]t was because of the authority of

the state to determine what should constitute its legislative process that the validity

of the [referendum], in its application to congressional elections, was sustained.

This was explicitly stated by this Court as the ground of the distinction which was

made in Hawke . . . .”). In short, the Court has held that the rejection by the

governor or by the people of a legislature’s congressional redistricting act is an

exercise of lawmaking power pursuant to the state constitution and, thus, fully part

of the lawmaking process contemplated by the Elections Clause.

                                          15
      In the face of this precedent, we have little difficulty in rejecting the

appellants’ claim that the phrase “by the Legislature thereof” in the Elections

Clause somehow refers only to a state’s legislative body. The Supreme Court has

plainly instructed us that this phrase encompasses the entire lawmaking function

of the state. That a law was enacted by the people themselves, pursuant to state

law, rather than by the state legislative body, is not enough to invalidate that

action under the Elections Clause. The focus remains on the state’s lawmaking

process, whether the governor of the state participates in the making of state laws

by exercising his veto power, or the people participate in the making of state laws

through the state’s referendum process.

      We are hard-pressed to understand how the term “Legislature” as used in

the Elections Clause could properly include within its ambit the governor’s and

people’s ability to flatly reject redistricting legislation, but would not also include

the people’s lawfully prescribed initiative power to provide some guidance for

how the legislature may exercise its discretion in drawing congressional districts.

We can see no material difference between the state veto provisions upheld in

Hildebrant and Smiley and Florida’s Amendment Six, which was constitutionally

enacted by initiative according to Florida law. Again, the Elections Clause

“neither requires nor excludes such participation” in state lawmaking. Smiley, 285

                                           16
U.S. at 368. And this check on the legislative process “cannot be regarded as

repugnant to the grant of legislative authority,” any more than the other limitations

can be. See id.

       Like the veto provisions at issue in Hildebrant and Smiley, Florida’s citizen

initiative is every bit a part of the state’s lawmaking function. Under the Florida

Constitution, the people have the power to amend their constitution by initiative.

Fla. Const. art. XI, § 3. And according to the Florida Supreme Court, “[a]n

amendment to the Constitution, duly adopted, is [an] expression of the will and

intent of the law-making power.” State v. Div. of Bond Fin. of Dep’t of Gen.

Servs., 278 So. 2d 614, 617 (Fla. 1973). Thus, the lawmaking power in Florida

expressly includes the power of the people to amend their constitution, and that is

exactly what the people did here in passing Amendment Six. Cf. Hildebrant, 241

U.S. at 568 (“[S]o far as the state had the power to do it, the referendum

constituted a part of the state Constitution and laws, and was contained within the

legislative power.”).

       It’s also worth noting that Amendment Six is housed in Article III, the

legislative article of the Florida Constitution.7 Amendment Six, like the preceding


       7
          The provisions at issue in Hildebrant and Smiley were likewise housed in the legislative
articles of their respective state constitutions. Smiley, 285 U.S. at 363 (observing that article IV of
the Minnesota Constitution addresses the legislature, and that the governor’s veto power appeared

                                                  17
nineteen sections of Article III, explicates the power of the legislature and sets

forth the rules that govern how the legislature may act. See Fla. Const. art. III, §§

1-19 (prescribing, among other things, the composition of the legislature, when

sessions shall be held, what constitutes a quorum, and how bills are passed).8

Amendment Six simply informs the process by which the legislature is to go about

its task of redistricting. Like the rest of Article III, it constitutes an integal part of

the state’s lawmaking power.

       Indeed, Amendment Six does not go as far as the limitations upheld by the

Supreme Court in Hildebrant and Smiley. If the lawmaking function properly

includes the power of the governor or the people, pursuant to the state

constitution, to veto a reapportionment act, then it seems abundantly clear that the

people of Florida, acting pursuant to their state constitution’s initiative process,

can provide some general guidance to the legislature regarding the exercise of its

redistricting power. The power to reject outright a legislative enactment drawing

congressional district boundaries is far more substantial than the power to


in section 11 of article IV); Hildebrant, 241 U.S. at 566 (explaining that the Ohio Constitution vested
the state legislative power not only in the general assembly but also in the people via their
referendum power).
       8
          Amendment Six is not the only section of Article III that imposes limits on the legislature’s
exercise of power. See, e.g., Fla. Const. art. III, § 6 (laws may embrace only one subject and matter);
id. § 8 (gubernatorial veto); id. § 11 (no special laws or general laws of local application relating to
certain enumerated topics).

                                                  18
participate in the process by enacting some general rules (most of which have long

been accepted as part of the redistricting process) stated at a high order of

abstraction. A veto completely invalidates the legislature’s redistricting act, but,

in contrast, Amendment Six does not prevent the legislature from drawing the new

district lines and implementing the legislation it has created.

      Nor can it be fairly said that the standards imposed by the text of

Amendment Six so limit the state legislature’s discretion as to eviscerate its

constitutionally delegated power and effectively exclude the legislature from the

redistricting process. Amendment Six enumerates six standards to inform the

redistricting process. To begin with, the requirement of drawing congressional

districts of nearly equal population is already imposed by federal law. See

Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) (holding that “as nearly as is

practicable one man’s vote in a congressional election is to be worth as much as

another’s”); Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969) (explaining that

the Wesberry standard requires states to “make a good-faith effort to achieve

precise mathematical equality” in the populations of congressional districts).

Similarly, Amendment Six’s provision regarding racial and language minorities

follows almost verbatim the requirements embodied in the Voting Rights Act,

which governs redistricting in Florida, and thus the provision cannot be said to

                                          19
have further diminished the legislature’s power. Compare Fla. Const. art. III, § 20

(Amendment Six), with 42 U.S.C. §§ 1973, 1973c (codifying Voting Rights Act of

1965, Pub. L. No. 89-110, §§ 2, 5, 79 Stat. 437, 437, 439).9 Three other

guideposts found in Amendment Six -- compactness, contiguity, and respect for

political and geographic boundaries -- are nothing more than traditional factors

that legislative bodies have historically considered in redistricting. See Shaw v.

Reno, 509 U.S. 630, 647 (1993) (observing that “compactness, contiguity, and

respect for political subdivisions” are “traditional districting principles”); Bush v.

Vera, 517 U.S. 952, 1048 (1996) (Souter, J., dissenting) (noting that these

traditional districting principles are “widely accepted among States”). The only

remaining standard in Amendment Six is the requirement that districts shall not be

drawn with the intent to favor or disfavor an incumbent or a political party. This

requirement does not so constrain the legislature as to effectively gut its power to


       9
           The fact that only five Florida counties are subject to preclearance under Section 5 of the
Voting Rights Act is of no moment. See 28 C.F.R. pt. 51, app. (listing jurisdictions where the
requirements of Section 5 apply). Not only is it impossible to draw districts for the five covered
counties independently of drawing districts for Florida’s other sixty-two counties, but the entire state
is subject to the requirements of Section 2 of the Voting Rights Act, and a Section 2 violation is
established by a showing that members of a protected class “have less opportunity than other
members of the electorate to participate in the political process and to elect representatives of their
choice.” 42 U.S.C. § 1973(b); see also id. §§ 1973(a), 1973b(f)(2) (extending Section 2 protection
to racial and language minorities). This is similar to the language contained in Amendment Six.
Compare id. § 1973(b), with Fla. Const. art. III, § 20(a) (prohibiting districts “drawn with the intent
or result of denying or abridging the equal opportunity of racial or language minorities to participate
in the political process or to diminish their ability to elect representatives of their choice”).

                                                  20
redistrict. In fact, it dictates no outcome. Moreover, this too is a legitimate factor

that a legislature may choose to consider or decline to consider in the

reapportionment process. See Karcher v. Daggett, 462 U.S. 725, 740 (1983).

Beyond these six standards, Amendment Six does not prevent or inhibit the

legislature in any way from considering any number of other factors. And at the

end of the day, Florida’s legislature is still responsible for drawing the

congressional district lines.

      Quite simply, since the phrase “by the Legislature thereof” in the Elections

Clause refers to the state’s entire lawmaking function, and the power of the people

to amend their state constitution by initiative is an integral part of Florida’s

lawmaking power, Amendment Six does not run afoul of the U.S. Constitution.

                                          III.

      The appellants also say that Amendment Six is unconstitutional for another

reason: even assuming that the method of enactment does not run afoul of the

Elections Clause, they argue that the substance of Amendment Six does. The

claim is that Amendment Six imposes substantive criteria that go far beyond the

state legislature’s delegated power to prescribe the “Times, Places and Manner” of

holding elections, which, the appellants argue, is limited to prescribing purely

procedural matters. Thus, the appellants urge us to conclude that Amendment Six

                                           21
would still be unlawful under the Elections Clause even if it had been enacted by

the state legislature rather than by the people. Again, we are unpersuaded.

      As an initial matter, it is debatable whether it is correct to characterize as

“substantive” the standards imposed by Amendment Six. By substantive, the

appellants really mean criteria that are designed to compel or dictate the outcome

of a congressional election. But it’s not at all clear that the six criteria found in

Amendment Six are designed to determine the outcome of elections. Contiguity,

compactness, respect for political and geographic boundaries, and population

equality seem more fairly characterized as procedural in nature -- they deal strictly

with the method of drawing district lines, without any regard for the particular

outcome those lines may yield. The minority and incumbency provisions of

Amendment Six are arguably closer to the substantive end of the spectrum, but

even these criteria are not designed to compel electoral outcomes but rather, by

their very terms, merely to level the playing field by ensuring equality among all

voters and by increasing opportunities for all candidates.

      More significantly, whether these factors are characterized as being

substantive or procedural in nature is of little moment, because, however they are

classified, Amendment Six does not exceed the scope of the Elections Clause

power to regulate the manner of elections. The standards enumerated in

                                           22
Amendment Six involve precisely the kinds of factors that legislative bodies have

traditionally used in drawing congressional and local political boundary lines, and

that courts have long ratified.

      The Supreme Court has acknowledged the lawfulness of considering factors

just like those included in Amendment Six. In Karcher v. Daggett, 462 U.S. 725

(1983), for example, the Court considered a challenge to congressional districts

based on population variances. In that context, the Court observed that a state

legislature drawing district lines may take into account what the Court termed

“legitimate objectives,” such as “making districts compact, respecting municipal

boundaries, preserving the cores of prior districts, and avoiding contests between

incumbent Representatives,” id. at 740, or, at issue in Karcher itself, preserving

the voting strength of minorities, see id. at 739 (acknowledging that “state

legislatures could pursue legitimate secondary objectives” such as “protect[ing]

the interests of black voters,” as long as the resulting districts did not involve

impermissible population deviations). In the same opinion, the Court also

observed that states may “tak[e] steps to inhibit gerrymandering, so long as a

good-faith effort is made to achieve population equality as well.” Id. at 734 n.6.

In this context, the Court cited approvingly to a Colorado constitutional provision

that imposes “guidelines as to compactness, contiguity, boundaries of political

                                          23
subdivisions, and communities of interest.” Id. (citing Colo. Const. art. V, § 47).

      What’s more, by our count, at least ten other states have adopted

constitutional provisions mandating consideration of some or all of the factors

found in Florida’s Amendment Six. See Ariz. Const. art. IV, pt. 2, § 1(14)-(15)

(requiring congressional districts to comply with the Voting Rights Act, and, to

the extent practicable, to be compact, contiguous, and of equal population, and to

respect communities of interest, political boundaries, and visible geographic

features; favoring “competitive districts” where consistent with these other goals;

and prohibiting the consideration of “[t]he places of residence of incumbents or

candidates”); Cal. Const. art. XXI, § 2(d)-(e) (requiring districts to comply with

the Voting Rights Act, to be contiguous, to respect political boundaries and

communities of interest, and, to the extent practicable, to be compact; and

prohibiting the consideration of incumbency or the favoring or disfavoring of any

candidate or political party); Colo. Const. art. V, § 47 (requiring congressional

districts to be contiguous and as compact as possible, to respect political

boundaries, and, “wherever possible,” to preserve “communities of interest,

including ethnic, cultural, economic, trade area, geographic, and demographic

factors”); Conn. Const. art. III, § 5 (requiring congressional districts to be

“consistent with federal constitutional standards”); Iowa Const. art. III, § 37

                                          24
(requiring congressional districts to be contiguous and to respect political

boundaries); Mo. Const. art. III, § 45 (requiring congressional districts to be

contiguous, compact, and as nearly equal in population as possible); Va. Const.

art. II, § 6 (same); W. Va. Const. art. I, § 4 (same); Wash. Const. art. II, § 43(5)

(requiring congressional districts to be as nearly equal in population as practicable,

and, to the extent reasonable, to be contiguous, compact, and “convenient,” and to

respect natural and political boundaries; and prohibiting favoring or discriminating

against any political party or group); Wyo. Const. art. III, § 49 (requiring

congressional districts to be contiguous and compact, and to respect political

boundaries).

      In addition, at least six other states use statutes to impose standards for

congressional redistricting. See Haw. Rev. Stat. § 25-2(b) (prohibiting

congressional districts drawn “so as to unduly favor a person or political party”;

and requiring districts, to the extent possible, to be contiguous, compact, and of

equal population, to respect political boundaries, and to avoid “submergence of an

area in a larger district wherein substantially different socio-economic interests

predominate”); Idaho Code Ann. § 72-1506 (requiring congressional districts to be

equal in population, to comply with all federal requirements, and, to the extent

possible, to “preserve traditional neighborhoods and local communities of

                                          25
interest,” “avoid drawing districts that are oddly shaped,” and respect political

boundaries; and prohibiting counties from being divided to “protect a particular

political party or a particular incumbent”); Me. Rev. Stat. tit. 21-A, § 1206

(requiring congressional districts to be compact, contiguous, and of equal

population, and to respect political boundaries); Mich. Comp. Laws § 3.63

(establishing exclusive guidelines for congressional redistricting, which require

districts to comply with the Voting Rights Act, to be “convenient,” contiguous,

compact, and of equal population, and to respect political boundaries); Mont.

Code Ann. § 5-1-115 (prohibiting congressional districts drawn to favor a political

party or incumbent, and forbidding the consideration of information such as

incumbents’ addresses or voters’ party affiliations); Or. Rev. Stat. § 188.010

(requiring congressional districts, as nearly as practicable, to be contiguous and of

equal population, and to respect geographic and political boundaries and

communities of interest; and prohibiting districts drawn to favor a political party

or incumbent or to dilute the voting strength of any language or ethnic minority).

      Moreover, it must surely be appropriate for a state legislature to take into

account the effect that its new districts will have on racial and language minorities.

The federal Voting Rights Act prohibits voting practices that deny or abridge the

right of any citizen to vote on account of membership in a racial or language

                                         26
minority group. 42 U.S.C. § 1973(a). To argue that Florida may not consider a

factor that it is otherwise obliged to consider under the Supremacy Clause has no

persuasive force. Again, it is irrelevant that only five Florida counties are subject

to the Voting Right Act’s preclearance requirement. See supra note 10. More

generally, if the appellants’ argument were correct, then no state would be allowed

to consider the effect of its congressional districts on minorities, even if the entire

state were subject to Section 5 preclearance.

      The fundamental problem with the appellants’ argument is that it says too

much and goes too far. If, as the appellants claim, the requirements of

Amendment Six exceed the scope of the Elections Clause because they are

substantive in nature, then even a state legislature would lack the power to enact a

law imposing the very same requirements. But taking this argument to its logical

conclusion would mean that no state legislature could decide to consider

incumbency, compactness, contiguity, or any of the other Amendment Six factors.

Under the appellants’ reasoning, apparently there would be no clearly explicated

factors that a state legislature could validly consider when redistricting. This is

plainly wrong.

      It is undisputed that states have the delegated power under the Elections

Clause to create districts for congressional elections. See, e.g., 2 The Records of

                                           27
the Federal Convention of 1787, at 240 (Max Farrand ed., rev. ed. 1974)

(statement of James Madison) (explaining that the power to prescribe the times,

places, and manner of holding elections includes determining “[w]hether the

electors . . . should be divided into districts or all meet at one place”). Indeed, a

federal statute requires states to use single-member districts rather than electing

Representatives at large. 2 U.S.C. § 2c. But if the appellants’ argument were

taken literally, the power to craft congressional districts would not include the

power to consider any codified criteria when actually drawing those districts’

lines. A state legislature would be cut adrift, left with little or no guidance for

grappling with the complex calculus involved in redrawing congressional

boundaries -- a task which, in Florida, requires dividing a state of some nineteen

million people spread over more than fifty thousand square miles into twenty-

seven congressional districts.

      In making the argument that the substance of Amendment Six runs afoul of

the Elections Clause, the appellants rely on two Supreme Court cases -- U.S. Term

Limits, Inc. v. Thornton, 514 U.S. 779 (1995), and Cook v. Gralike, 531 U.S. 510

(2001). Neither case is on point. First, in U.S. Term Limits, the Court invalidated

an Arkansas constitutional amendment that prohibited anyone who had already

served three terms in the House of Representatives or two terms in the Senate from

                                           28
having his name appear on the ballot. 514 U.S. at 783. And then in Cook, the

Court relied on U.S. Term Limits to invalidate a Missouri constitutional

amendment that required disclaimers to be printed on the ballot next to the names

of congressional candidates who did not take certain actions in support of term

limits. Cook, 531 U.S. at 514-15. The Court concluded that these provisions

could not be sustained under the Elections Clause, which does not authorize states

“to dictate electoral outcomes, [or] to favor or disfavor a class of candidates.”

U.S. Term Limits, 514 U.S. at 833-34; Cook, 531 U.S. at 523, 525-26. The

appellants suggest that Amendment Six is also an unconstitutional attempt to

dictate outcomes and favor or disfavor candidates.

      Given the nature of the provisions at issue in U.S. Term Limits and Cook, it

is not surprising that the Court framed its holdings in terms of “dictat[ing]

electoral outcomes.” Both cases involved ballot requirements meant to prevent or

severely cripple the election of particular candidates. The Court emphasized that

these provisions were specifically designed to “handicap” certain candidates.

Cook, 531 U.S. at 524-25 (observing that the Missouri amendment was “plainly

designed to favor candidates” who support term limits and “disfavor” others, and

that its “intended effect” was to “handicap” these disfavored candidates); U.S.

Term Limits, 514 U.S. at 831 (observing that the “avowed purpose and obvious

                                          29
effect” of the Arkansas amendment was to “handicap[] a class of candidates,”

namely, incumbents). It was this impermissible attempt to effectively “exclude

classes of candidates from federal office” that exceeded the Elections Clause

power reposed in state legislatures to regulate the “manner” of congressional

elections. See U.S. Term Limits, 514 U.S. at 832-33.10

       Amendment Six is profoundly different and easily distinguishable from the

provisions outlawed in U.S. Term Limits and Cook. Unlike those two provisions,

Amendment Six is not intended to handicap particular candidates. The appellants

point to Amendment Six’s minority and incumbency provisions, but neither

unconstitutionally “dictate[s] electoral outcomes.” Again, the minority provision

contained in Amendment Six closely tracks long-standing federal requirements.

Since the state already must comply with the provisions of the Voting Rights Act,

it is hard to see how Amendment Six’s minority provision could have an unlawful

impact. And even setting aside the Voting Rights Act, Amendment Six’s minority

provision is not the kind of provision proscribed in U.S. Term Limits and Cook.

Rather, the minority provision does no more than attempt to provide equal

       10
          The appellants also suggest that U.S. Term Limits and Cook forbid any electoral regulation
that “influences” electoral outcomes. These cases do not and could not stand for so sweeping a
proposition. Indeed, any number of perfectly valid regulations might affect electoral outcomes.
Thus, for example, merely setting a day and time for congressional elections will almost surely affect
who goes to the polls, but it would be wholly unconvincing to say that such a regulation would
exceed the state’s Elections Clause power.

                                                 30
opportunity for insular classes of voters.

      Amendment Six’s incumbency provision is also consistent with the

reasoning employed in U.S. Term Limits and Cook. The incumbency provision is

neutral on its face, explicitly requiring that lines not be designed to help or

handicap particular candidates based on incumbency or membership in a particular

party. Far from “dictat[ing] electoral outcomes,” the provision seeks to maximize

electoral possibilities by leveling the playing field. Indeed, it would be

extraordinary to conclude that a provision prohibiting district lines “drawn with

the intent to favor or disfavor a political party or an incumbent” somehow violates

a rule against electoral regulations that “favor or disfavor . . . candidates.”

Compare Fla. Const. art. III, § 20(a), with U.S. Term Limits, 514 U.S. at 834.

      In short, Amendment Six does not exceed the scope of Florida’s Elections

Clause power to regulate the manner of congressional elections. All Amendment

Six does is require the legislature to account for some particular standards when

conducting the complex task of drawing congressional district lines. States can

and routinely do consider the very same factors when redistricting, and codifying

them in a constitutional amendment does not implicate the prohibition in U.S.

Term Limits and Cook on regulations that “dictate electoral outcomes.”

      Amendment Six is entirely consistent with the Elections Clause, both as to

                                             31
its substance and its manner of enactment. The district court’s order granting

summary judgment to the appellees is, therefore, AFFIRMED.




                                        32
