“Neil Gorsuch’s Bad-Faith Ploy to Save Partisan Gerrymandering and Doom American Democracy”

Mark Joseph Stern for Slate:

As Talking Points Memo’s Tierney Sneed has observed, Gorsuch’s question effectively weaponizes redistricting reform as an argument againstfederal court intervention. His solution—let the people solve the problem—is absurd for at least two reasons: The court may well strike down independent redistricting commissions, andeven if it doesn’t, at least 24 states bar citizens from circumventing the legislature to enact gerrymander reform. In response to this problem, Paul Clement, the conservative attorney defending gerrymanderers, pointed on Wednesday to H.R. 1, the Democratic measure that would compel each state to adopt an independent redistricting commission. But as Clement hinted, there is a good chance that the Supreme Court would also strike down this central provision of H.R. 1. The upshot is that without the support of the federal judiciary, millions of Americans will be powerless to stop partisan redistricting….

That’s true in theory, even though the bill has no chance of passing the Republican-controlled Senate. But Clement added a caveat. H.R. 1, he said, “was an effort to essentially force states to have bipartisan commissions. Now, query whether that’s constitutional.”
Wait—what? Remember, the elections clause states that Congress can “make or alter such regulations” regarding the “manner” of congressional elections. So why can’t Congress compel states to adopt independent redistricting commissions? The probable answer, as a white paper by Pack the Courts points out, is that this requirement could be struck down under the Supreme Court’s “anti-commandeering doctrine.” Under that principle, Congress can’t force state legislators to adopt or enforce a federal law. SCOTUS could easily cite the amorphous and ambiguous doctrine to justify invalidating the anti-gerrymandering provision of H.R. 1 on constitutional grounds.

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