Is Partisan Gerrymandering of Congressional Elections Unconstitutional Under the Original Meaning?

The Supreme Court has now accepted certiorari in two partisan gerrymandering cases, in which a political party has allegedly used its power to draw district lines to favor its electoral chances.  One case involves congressional districts (Benisek), the other involves state districts (Gill).  The usual way of thinking about these cases is that originalists believe the Constitution does not place a limit on partisan gerrymandering, whereas living constitutionalists often favor restrictions on it.

But recently Ned Foley has argued that this is mistaken. While the original meaning of the Constitution may not limit partisan state gerrymanders, he argues it does limit partisan gerrymanders of congressional elections. The reason for the difference is that the two types of elections are governed by different constitutional provisions. If Foley is correct, this is a really significant result. It suggests that partisan gerrymandering, at least for federal house elections, could be unconstitutional under the original meaning.

What then is the argument? Congressional elections are governed by the following clauses. Article I, section 4 of the Constitution allows state legislatures to adopt rules for the “Times, Places, and Manner” of congressional elections unless and until Congress choose to “make or alter such Regulations” itself. Also relevant is Article I, section 2, which requires that  “Members” of the federal “House of Representatives” be “chosen every second Year by the People of the several States.”

According to Foley:

Putting the two provisions together, state laws purporting to set the procedures for congressional elections cannot undermine the basic obligation that these elections be responsive to the periodically changing will of the “People” in the state.  In contrast to elections for the Senate and the presidency, which the original Constitution did not entrust to the “People” directly and which the Founders did not want to be so immediately susceptible to changing public opinion (setting the terms for senators and the president at six and four years, respectively), the House of Representatives was to be the one part of the federal government directly accountable to popular sentiment, and this sentiment was entitled to make itself known at biennial intervals in order to reflect the right of the “People” to update its political preferences in light of new circumstances.

If the gerrymandering of a state’s congressional districts by the state’s legislature prevents congressional elections from being responsive to the will of the “People” in the state (contrary to what section two of Article I requires), then the state legislature has breached the trust conditionally reposed in it by the Elections Clause to make procedural rules for the holding of congressional elections in the state.

Foley then offers the following hypothetical:

suppose . . . that a state law provided that to unseat an incumbent federal Representative from a  state, an opposing candidate must win two-thirds of the ballots cast in the election, not merely a majority or plurality.  [This law] would contravene the principle of democratic accountability that the biennial nature of these elections was designed to serve.  To require an opponent to receive two-thirds of the vote in order to unseat an incumbent obviously would stack the election in the incumbent’s favor, whereas the Constitution clearly contemplates that a challenger will unseat an incumbent if the electorate simply prefers the one to the other (as reflected by a majority or plurality of the ballots cast).

Extreme gerrymandering protects incumbents and threatens democratic accountability in much the same way that demanding a challenger to obtain a supermajority of the ballots does.

So is this a good argument? In my next post, I will answer that question.

Reader Discussion

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on April 18, 2018 at 15:03:27 pm

Just off the top of my head, one of the two fundamental axioms of republicanism is that the majority wins (the other is that the state cannot restrict liberty of conscience).

So, Art. IV, § 4 would make the 2/3 hypothetical unconstitutional.

However, I certain that the Federalist Society judges like John "Obama Care" Roberts and Neil "Who Cares About Criminal Aliens" Gorsuch will find something in cranky old Antonin Scalia's ramblings that will require the central government's further meddling in state elections under any circumstances.

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on April 18, 2018 at 15:52:29 pm

If you want the House of Reps to be more responsive to changing public opinion, how about you limit the house to three terms?

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Term's the Limit
on April 18, 2018 at 18:20:45 pm

This is mainly in response to "Term's the Limit", but also addressed to readers as a whole:

I quite agree with presidential term-limits as being vital, or at least, highly preferable, and my displeasure with many intra and inter state Reps & Senators provokes me (in a knee-jerk way) to support terms limits in Congress, but what about "unchanging (majority)public opinion" that 'wills it' that the same Rep. or Senator return year after year for a generation - shouldn't the majority will prevail for as long as it finds value to its self-interest to chronically send the same person back to Congress? And, so long as there isn't blatant majority fractional abuse?

If so, shouldn't seeking nationalized Congressional term-limits really be seen as minority maneuver to thwart the will of the majority? I know incumbents tend to have an (sometime very large) advantage over a challenger, but even so, if the majority wishes to "throw the bum out", wouldn't they, and don't they have the means to do so?

What proof is there available that indicates term-limits make Congress more responsive to the public will - Or that it will reduce corruption - on the national level?

I think Americans have a tendency to see individual Congress members (House & Senate) as accountable primarily to the "American People" as a nation, like Presidents, when in fact, they are elected by, and to be first and foremost accountable to the interests of the citizens of their respective states, and of their particular state generally, and only secondarily, to national interests, generally.

Wouldn't it be better then, if there are to be any term-limits on members of Congress, for it to be an individual State's right issue, whether to institute Congressional term-limits or not, so those states who see the wisdom in term-limits may have them, while those states that are satisfied not to have them, may continue not to have them so long or until they decide otherwise? Wouldn't this be within the state's constitutional right to legislate if the so desired (i.e. had popular state support to do so) under Article I Section IV?

To answer my own question, (as far as I am concerned), "yes", I think I could only support Congressional term-limits if they were legislated at the state level, and I would only support a Constitutional Amendment, that so made it a matter of state choice, but I don't see, if I understand Article I, Section IV, that an Amendment would be required, as such.

But, I am neither lawyer nor Constitutional scholar, so to those who are, please confirm or correct me.

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Paul Binotto
on April 18, 2018 at 18:23:04 pm

OK on roberts BUT Gorsuch was right - the statute was far too vague and could lead to abuse of power / discretion.

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Guttenburgs Press and Brewery
on April 18, 2018 at 18:28:58 pm

Foley is *stretching* it quite a bit here.

Who says that a gerrymandered district (if it actually is) is not "representative of the people, nor that it denies the people an opportunity to express their collective will?

Hogwash!!! Slice the districts up any way you want and someone will always claim that it disadvantages them. What next from Foley; a district vote is unresponsive because it does not properly reflect every single ethnic, racial, sexual group within a State?

THEN AGAIN, try as i might, I cannot find anywhere within COTUS a guarantee that any political party shall have equal representation - indeed, I find not even a mention of a political party.

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Guttenburgs Press and Brewery
on April 18, 2018 at 22:02:19 pm

The problem with a lack of term limits is that the longer a congress-person is in offense, the more seniority they have (can choose the committees they're on) and therefore the more power they have. The goal is to make all congress-people equal in power--one person, one vote--rather than have things like the "gang of 8".

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gang of one
on April 19, 2018 at 08:35:23 am

Mr. Gabe,

I totally get that notion, but to go back to my point, a member of Congress' first and foremost obligation is to his home state and its citizen's; only secondarily, is duty to the nation as a whole (except in matters of common defense) - under this notion, the more power, generally the better served, (appropriated) the home state - I know this may be a somewhat selfish approach or view to national government, but I do suspect it is exactly as intended by the founders of our particular Republic. The Fed., aside from providing for the common defense, and a handful of other specialized duties, was never intended (as you rightly know) for anything approaching what it has become.

I understand the motivation for term-limits, and it may turn out to be that nationwide term-limits is the only just solution (perhaps a national conversation needs to be had, but it must include both-sides); but the very real ill-effects of what you describe are not because members serve too long, or an inherent fault in the current structure of the very well designed bicameral legislature bequeathed to us, but rather, because our Fed. has become something it was never intended to be.

In my view, the right & best way to correct these abuses is to restore the Fed. to some measure of its former-self. Want Congressional terms-limits, let each state decide for itself.

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Paul Binotto
on April 19, 2018 at 08:39:10 am

From an originalist perspective, Foley is clearly wrong. By its terms, in the absence of congressional action, the language of the Elections Clause vests plenary authority over the "Times, Places and Manner" of elections in the state governments--no ifs, no ands and no buts. This point was explicitly recognized by Madison at the Constitutional Convention, who adverted to the possibility of extreme gerrymanders as the justification for vesting a supervisory power in Congress.

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Earl Maltz
on April 19, 2018 at 08:40:57 am

When I say "current" structure, I of course mean, "Original structure/construction of our Legislature, as intended by the framers", and not the current bloated distortion of the Feds. former-self.

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Paul Binotto
on April 19, 2018 at 09:54:55 am

Gerrymandering seems like one of those things that absolutely should be unConstitutional, but I just don´t see the basis for overturning it, much as I would like to see it. Plus, it never gets old telling Democrat complainers that it was a Democrat idea. If Congress can outlaw it, they should. If they can´t, it deserves an Amendment. A simple maximum border to area ratio would solve it by forcing the districts to be approximately square.

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John Ashman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.