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[Noah Feldman] Could Congress end gerrymandering?

By Bloomberg

Published : April 8, 2021 - 05:30

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The “For the People Act” currently being proposed by House Democrats would transform the way the US runs federal elections. Known as HR 1, the bill would make it substantially easier to vote. It would also counteract restrictive legislation enacted by Republican state legislatures in recent years.

One provision stands out from the rest: the one that would end state-level gerrymandering by requiring that all legislative districts be set by independent, nonpartisan commissions, rather than by the state legislatures.

The good news is that this provision would do more to restore election fairness than all the rest of the act taken together. Its benefits would be worth the cost of breaking the filibuster.

The bad news is that a conservative Supreme Court might hold that it is unconstitutional for Congress to prescribe a system for states to design districts. That would undercut the legislation and allow gerrymandering to continue.

The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says:

“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.”

The text does two things. First, it makes the states the default holders of the power to prescribe the choosing of members of Congress. Second, it gives Congress broad power to override what rules the states make with one exception, the “places” of choosing Senators. (The meaning of this exception is itself tricky -- a subject for another day.)

The second clause -- giving Congress power to make the rules -- can be read to allow Congress to do almost whatever it wants when it comes to Congressional elections, including requiring state districting for the House of Representatives to be done by nonpartisan commission.

Relying on this power, Congress in 1842 required states to design single-member Congressional districts, rather than multi-member districts or at-large elections. At the time, figures as prominent as President John Tyler expressed concern that the law might be unconstitutional. Several states ignored the law altogether. Congress seated their representatives anyway, partly resting on the idea that the law requiring single-member districts might go beyond Congress’s power.

In 1967, Congress passed a new law banning multi-member districts. The Supreme Court has not directly ruled on a challenge to the constitutionality of the law, but it has treated the law as constitutionally valid.

If Congress can require single-member districts, it would seem to follow that it has the power to require that districts be drawn by non-partisan commissions. It’s certainly an argument I‘d accept. But the current Supreme Court might see it differently.

It’s one thing for Congress to “make or alter” regulations for time, place and manner of elections. It’s arguably another for Congress to mandate that non-partisan commissions define the contours of the districts. Is that the “manner” of elections? Or is it something more fundamental -- a power that might inherently belong to the state legislatures? The court might decide there’s a distinction between requiring single-member districts and requiring a particular method of drawing them.

It’s also easy to imagine the current Supreme Court holding that states have an inherent right to draw their own districts. States have had that power since the earliest days of the Constitution, and even before it -- if you count the states’ power to choose representatives to Congress under the Articles of Confederation. This history could be used to claim that states cannot be divested of the power to draw districts as they see fit.

The court might also worry about Congress claiming too much power over districting. Imagine a situation in which, instead of mandating nonpartisan commissions, Congress takes over districting directly. That would amount to a radical change in how districts are set, transferring power to Congress and away from states. Congress could start doing redistricting itself and effectively designate its own future membership. Fear of opening that door could lead a majority of the justices to rule that Congress can’t mandate commissions to draw districts.

The For the People Act’s bold anti-gerrymandering initiative will face judicial hurdles if it is enacted. The Supreme Court will have the ultimate say. With more conservatives than liberals on the bench, the court could very well strike it down. That would leave us with the same partisan gerrymandering problem that plagues our democracy now more than ever.

Noah Feldman
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to US Supreme Court Justice David Souter. -- Ed.