[EL] can congress dictate redistricting commissions

[Kogan, Vladimir]

What would be the legal distinction between requiring a particular kind of redistricting process (e.g., commissions) and certain kind of redistricting outcomes (e.g., contiguity of districts, which Congress has done before)?

E.g.,: https://en.wikipedia.org/wiki/Apportionment_Act_of_1911

Section 3. That in each State entitled under this apportionment to more than one Representative, the Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative.

In some ways, specifying the process rather than dictating the destination seems a more benign exercise of congressional power.

Vlad Kogan

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Mark Scarberry
Sent: Thursday, January 28, 2021 2:33 PM
To: Hess, Douglas (Doug) <HESSDOUG at grinnell.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] can congress dictate redistricting commissions

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)?

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Douglas R Hess
Assistant Professor, Political Science/Policy Studies
Grinnell College
On sabbatical until fall 2021
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