[EL] can congress dictate redistricting commissions

[Levitt, Justin]

The courts have generally held that because the Constitution expressly assigns the responsibility for administering federal elections to states (while also reserving the ability of Congress to modify those rules), there aren’t the same commandeering concerns in the elections context that might exist in other arenas of federal legislation.  In the mid-90s litigation over mandates of the NVRA for federal elections, for example, the courts uniformly rejected commandeering challenges.  ACORN v. Miller (https://casetext.com/case/association-of-community-organ-v-miller) is a good example, and lists some of the other circuit decisions for ready reference.

Justin

--
Justin Levitt
justin.levitt at lls.edu

On Jan 28, 2021, at 11:34 AM, Mark Scarberry <mark.scarberry at pepperdine.edu> wrote:


A question I asked on my Election Law final exam was whether Congress could impose a preclearance requirement on states' redistricting plans if they did not use independent redistricting commissions.

Requiring states to set up commissions could violate anti-commandeering doctrine, right?

Otherwise it would seem that Art. IV, sec. 4, cl. 1, would give Congress authority to determine the way that congressional districts are drawn. I suppose Congress could set up a redistricting commission or commissions to draw the districts.

It isn't clear to me where Congress would get authority with regard to drawing of districts for state legislatures, other than, conceivably, the enforcement provisions of the 14th and 15th Amendments.

Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Personal: mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>




On Thu, Jan 28, 2021 at 11:19 AM Hess, Douglas (Doug) <HESSDOUG at grinnell.edu<mailto:HESSDOUG at grinnell.edu>> wrote:
Can the US Congress require states to use a type of redistricting commission that it establishes (or select from a set of types it lists)?

-----------------------
Douglas R Hess
Assistant Professor, Political Science/Policy Studies
Grinnell College
On sabbatical until fall 2021
My latest op-ed using Grinnell College National Poll: https://bit.ly/hesshess102020

Website: http://www.douglasrhess.com
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