I write to generally endorse the J.J. Gass contribution below on Congress's authority to prohibit mid-decade state redistricting.   I only want to express some befuddlement at the use of the tentative conclusion that Congress "might  have the power"--at least when it comes to districting for federal elections.  Can anyone on this list think of any colorable argument against Congress's authority in this domain?  The following is my quickie thinking process on the issue (with the caveat that  I haven't done any research to see if this question has been specifically  considered by a court or by Congress.  

 

Working through a process of exclusion,  I can imagine Congress exceeding its Elections Clause power in four different ways, but I can't see how any of these might pose an obstacle in this redistricting context:

 

First , Congress might try to do something that is substantive and not fairly characterized as procedural (that is, something that does not fall within the plenary time, place and manner power of art. 1, sec. 4, cl.1).  For example, if Congress passed a law that changed the substantive qualifications necessary for enfranchisement in a particular state, this would, in my view, fall outside the Elections Clause power (and would be unconstitutional unless justifiable under some other text such as the 14th amendment.)  This issue arose in a variety of contexts in the 1960s, and, more recently, in much more marginal ways in the passage of the Help America Vote Act (e.g. issues of state-law voting disqualifications based on mental retardation and mental illness that didn't make their way into law, ex-felon enfranchisement, and issues that could have been raised--but for obvious political reasons were ignored--in federal man! dates on stat! es to use different residency requirements for the enfranchisement of overseas servicemembers).  But of course redistricting rules fall w/in the procedural category of regulations of time, place and manner.

 

Second, and obviously, Congress might violate some other constitutional provision (e.g. enacting a law that required racially discriminatory redistricting).  

 

Third, Congress might get in trouble if it enacted a prohibition that expressly applied to both federal and state elections.  (Even this might be a question I think under some old caselaw containing very generous language towards the express 'leveraging' of Congress's federal election power to state election processes.)  I agree that today Congress probably couldn't regulate state election processes so blithely.  But if Congress's prohibition were drafted to target expressly only federal elections, under existing 'leveraging' caselaw (caselaw that I assume would stand today), it would be totally unproblematic if the law resulted in a de facto transformation of the way state elections are conducted.

 

Fourth, and very much in a speculative vein, Congress might get in trouble using its Elections Clause power in a manner that is considered to commandeer the states.  My understanding of past caselaw used to be that it construed the Elections Clause as one part of the Constitution where commandeering was specifically approved in the constitutional text.  However, as I mentioned in a previous post, at least a few justices in Branch v. Smith were willing to suggest or hint in dicta that there might be some cong'l action under the Clause that would constitute impermissible commandeering (I think it was O'Connor in a strong, probably wildly untenable view and Scalia in a much weaker form).  But I don't see any way that a redistricting rule such as a prohibition on midterm redistricting could raise this very uncertain commandeering issue.  As J.J. Gass suggested, a prohibition on midterm r! edistricting ! is very much in the vein of cong'al statutes that dictate whether states may have or must have a district or at-large system (my memory is that these kinds of dictates have a pedigree going back to the 19th century, and that they have been recently reconsidered w/o constitutional objection in Congress, for example, w/ Rep. Tom Campbell's attempt to give states a free choice of electoral system); that is, it is no more or less a procedural regulation of time, place, and manner, and it is no more or less federal in character.   Moreover, the prohibition on midterm redistricting seems even less like commandeering because it is negative in character and thus cannot constitute any kind of conscription of state processes (note the fact that even an anti-commandeering rule applied tin the peculiar context of the Elections Clause would have to allow for many affirmative mandates from Congress).

 

(Also, for the sake of completeness, I'll mention there is a fifth way of running afoul of the Elections Clause that occurs to me:  if Congress tried to legislate expressly as to the "places for chusing Senators."  (I actually worried about the fact that some drafts of the HAVA tried to dictate accessible polling places for the selection of senators and representatives rather than just counting on the 'leveraging' of a mandate that referred to representatives only.  But I couldn't find even one instance in which a defendant invoked this limitation in disability voting suits, nor did anyone in the cong'al debate raise any constitutional concerns.))

 

So, does this list miss anything?

 

 

thanks,

Kirsten Nussbaumer

 

 

Update on Federal law prohibiting mid-decade state redistricting
UPDATE: J.J. Gass suggests to me that Congress might have the power to prohibit the practice for congressional districts under the Elections Clause (the same clause that gives Congress the power to require states to use single-member districts. Less clear is the power to prohibit the practice for the state legislature or other bodies. The theory there perhaps would be Congress's enforcement powers under the 14th or 15th Amendments---a theory that would be quite shaky under current jurisprudence.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com
    

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com