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

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.