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05/04/2018

Partisan Gerrymandering and The Original Meaning of “Election”
Mike Rappaport

In my last post, I presented Ned Foley’s argument that partisan gerrymandering of congressional elections violates the Constitution’s original meaning. His basic argument was that such gerrymandering prevents the House of Representatives from fulling its role in the structure of government of allowing the people to select new representatives every two years. While Foley’s argument would be quite important if it were persuasive, I argue here that it seems unsupported by history and therefore likely fails. Thus, the Constitution’s original meaning, regrettably, does not prohibit partisan gerrymanders.

Foley’s argument relies on a certain type of interpretation that he calls structural originalism. He draws a distinction between linguistic and structural originalism. He writes:

The issue of gerrymandering under the original Constitution is not a linguistic one. It does not turn on a contested meaning of the word “People” as employed . . . in the specific provision of Article I that the federal “House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Instead, the issue is a structural one: is gerrymandering inconsistent with the principle of popular sovereignty that underlies the provision that the federal House of Representatives is to be chosen biennially to reflect the changing will of the electorate?

My way of analyzing these matters is different. I don’t think that the structure of the Constitution is directly enforceable. Instead, if the language of the Constitution is unclear, then the structure can be used to resolve an ambiguity or other uncertainty in the language.

My methodology leads to the question: what language governs the apportionment or gerrymandering of congressional districts? The most relevant (and helpful) language for Foley’s purpose in my view is the following: The “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.” The question is: what constitutes an election for a legislature by the people?

In my last post, I noted Foley’s argument that if a state require a two thirds vote to displace an incumbent, that should be unconstitutional. Foley then argues that a partisan gerrymander should be unconstitutional for much the same reason. I disagree. While I believe the two thirds vote would probably be unconstitutional, I am skeptical the same reasons apply to partisan gerrymanders.

It is likely that an election using the two thirds vote would not be an election under the Constitution. Why? One needs to look at what an election was to the Framers.

There is lots of evidence to consider, such as what elections looked like in England, in the colonies, and in the states prior to the Constitution. If, as I believe, such elections consistently employed majority rule, then that would create the significant possibility that this was part of the legal meaning of the term. Constitutional provisions were often given a legal meaning based on the historical existence of their operation in prior legal systems. For example, the term jury was often thought to require not merely a group of people, but 12 people specifically, based on the historical practice.  The more this majority rule feature was known and followed, the more likely it was the legal meaning. This interpretation, moreover, is furthered by constitutional structure or purpose – by the fact that the purpose of House elections was to allow the people to select new representatives every two years. So a two thirds rule to displace incumbents for House elections would be unconstitutional.

What about an election with partisan gerrymandering? Would that be an election under the Constitution? Again, one would want to look at the historical practices concerning gerrymandered elections in England, in the colonies, and in the states. I don’t know that much about this history. I am not aware of partisan gerrymandering occurring, but there were similar practices, such as the use of rotten boroughs and other unequal districts. Without a consistent practice against partisan gerrymandering or at least of other unequal districts, I would be hesitant to reach a conclusion of unconstitutionality. The lack of a consistent practice against partisan gerrymandering would distinguish this practice from a supermajority rule to displace incumbents. The supermajority rule would be unconstitutional, whereas partisan gerrymandering would not.

Thus, I view the matter as turning on the history. Without a strong history to support the claim that partisan gerrymandering did not constitute an election, I would be reluctant to find such gerrymanders unconstitutional.