Could the Court Toss a Ban on Partisan Gerrymandering?

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June 19, 2021 1:51 p.m.

Last week I noted that even if Sen. Joe Manchin (D-WV) is watering down the For the People Act, his somewhat diminished version is still very much worth fighting for. Part of my argument is that the ban on partisan gerrymandering is likely the most important part of the legislation. And Manchin appears to be saying that he supports that part of the bill.

Now, a number of you have written in to ask how excited we can be about that given the GOP majority (yes, intentional usage) Supreme Court which is often inclined to use the most facially absurd arguments if they advance conservative ideology or the present interests of the Republican party (yes, this is definitely still true). Or to put it more directly, how likely are those provisions to withstand the scrutiny of this Supreme Court?

This was precisely my question earlier in the year. But speaking to a number of election and constitutional lawyers gave me the strong impression that these provisions are pretty likely to withstand such muster.

Now, as we’ve said, the 6 member majority on the Court can do anything it wants. So, no guarantees. But from the experts I spoke to I would say that the constitution is about as clear as it can possibly be on Congress’s authority to make such rules.

Article 1, Section 4, Clause 1 places state legislatures in charge of administering federal elections. But it says clearly that Congress can overrule and change those rules at its discretion. Here’s the text: “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 [emphasis added].”

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There are other ambiguities about this clause or rather ones members of the Court have now claimed are ambiguous. But there’s really no ambiguity about Congress’s ability to make regulations for the administration of federal elections which override those of the states.

It’s worth noting this would apply only to federal elections. Congress has no blanket ability to set the terms of conducting elections for state offices. But for federal elections it’s pretty clear cut.

Could the Court still find some bogus reason to toss the whole thing out? Sure. But it seems unlikely. H1/S1 does leave to the court interpreting the strictures it places on partisan gerrymandering. So it’s not that they won’t have a role. But that’s more feature than bug. The Court basically rejected litigation against partisan gerrymandering in recent years because they claimed there was was no relevant law or standard of fairness they felt they could apply. The H1/S1 language creates those standards.

In any case, worth doing? Absolutely. A corrupt Court can do anything. But the ban on partisan gerrymandering rests on constitutional powers that are about as clear cut as they come.

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