An ELB reader kindly pointed me to this piece. (Thanks for the tip.) Written by distinguished authors whom I greatly admire, the argument is in my view gravely mistaken.
First, let me try to summarize it fairly: the claim is that the U.S. House of Representatives, without passing an Act of Congress, can combat gerrymandering by refusing to seat winners of elections from gerrymandered House districts. The piece correctly observes that the Constitution (in Article I, section 5) makes the House “the judge of the Elections, Returns and Qualifications of its own Members.” The authors argue that this authority would permit the House, even after ballots are cast and counted in the midterms, to deny seats to any winning candidate who won in a gerrymandered district. Indeed, they would “refuse to seat [an entire] state delegation achieved through excessive gerrymandering.”
Although the House may have the raw power to do this without the constraint of judicial review because of the political question doctrine (but cf. Powell v McCormack), an attempt to exercise this hardball tactic would be an escalation in norm-shattering severely dangerous to small-d democracy. It also wouldn’t work to prevent gerrymandering from causing Republicans to take control of the House in 2022, for reasons that I shall explain.
The authors try to analogize to the situation in which the House refused to seat winning candidates in elections tainted by unconstitutional racial discrimination. But in those cases illegality affected the outcome of the election. In a judicial contest procedure, a court also would nullify a vote tally if evidence showed the vote tally was the product of unconstitutional racial discrimination in violation of the Fifteenth Amendment. But unless a gerrymandered district violates a law, the vote tally in an election held for that gerrymandered seat would not be unlawful or tainted by any illegality, and no court would nullify the result. Nor should the House itself in a procedure pursuant to Article I, section 5, which is its own method of permitting a contest to an election’s outcome.
There are basic rule-of-law and democracy norms involved here. Elections need to be run according to the rules for running them established in advance. If eligible voters cast valid ballots and those ballots are counted correctly, the results of the election should stand even if it would have been desirable to conduct the election according to different rules. You can change the rules for next time, but voters and candidates are entitled to compliance with the electoral rules as established for this particular election.
To my mind, what the authors propose would be the equivalent of Congress rejecting the results of the Electoral College just because Congress, without having changed the rules, would prefer presidents to be elected by means of a national popular vote. By all means, let’s get rid of the Electoral College for future elections, but you have to accept the results of valid ballots cast and counted according to existing rules. If one is appalled by the effort of Senators Hawley and Cruz to repudiate the Electoral College outcome this past January 6, as I am, one should also shudder at the suggestion of the House rejecting the results of an election that fully complies with the rules for holding that election.
The authors soften their argument by saying that the House could announce in advance its standards for excessive gerrymandering so as to put states on notice about what would cause their delegations to be rejected. But the authors are clear that these standard would not be set by an Act of Congress, involving concurrence of the Senate. As such, state laws violative of these House-adopted standards would not be preempted under the Supremacy Clause. Congress–meaning both the Senate and the House–clearly has the constitutional authority to preempt state laws that adopt gerrymandered maps and to require states to district House seats in a way that avoids gerrymandering. But this power of Congress exists in Article I, section 4 (not Article I, section 5), and it requires Congress to enact legislation if it wants to prohibit states from engaging in partisan gerrymandering. I’m not even sure the Supreme Court would let the House refuse to seat a state’s whole House delegation, or even a single winning candidate, whose election did not violate any federal or state law; if the ballots cast and counted were all fully valid, the Court might insist that Congress would have been required to act in advance of the election in order to render the gerrymandered maps unlawful.
There is a more fundamental problem with the argument. The House, unlike the Senate, is not a continuing body. After each election, the House has to organize itself anew. Some of the most fraught moments in the House’s history have involved fights over enough seats to affect which party is the majority in the chamber and who gets elected Speaker. The purpose and risk of gerrymandering–especially for the upcoming 2022 midterms–is that it will determine which party controls the House for the second half of the Biden Administration. (Some Republicans have even admitted as much, saying the quiet part out loud.)
So, imagine January 3, 2023, when the House convenes for the first time after the 2022 midterms. Let’s suppose there’s the claim that there are enough gerrymandered seats to affect whether Republicans or Democrats are in the majority. What happens then? The winners of the elections in these allegedly gerrymandered districts will present their certificates of election, obtained from the relevant state officials, to the Clerk of the House, in order to be seated at least provisionally. I can’t believe that the Clerk would refuse to seat winning candidates whose certificates of election are facially proper (and when there’s no claim that the election involved any error or wrongdoing in vote-counting). If they are seated, if only provisionally, then Republicans will be in the majority to start for the purposes of electing a Speaker and organizing the new House; if so, they could undo whatever the Democrats attempted, by House rule alone and not by Act of Congress, in an effort to combat gerrymandering. The whole exercise then would have been entirely futile.
Beyond flagging this point, I don’t want here to get into potential complexities (both jurisprudentially and practically) about a fight over the organization of the House in January of 2023. If anyone wants to consider particularly ugly historical examples, there’s the so-called “Broad Seal War” affecting New Jersey’s House delegation from the election of 1838 and the Civil War midterm election of 1862, both of which are detailed in Ballot Battles.
Suffice it to say this now: if the goal is to stop gerrymandering from affecting the outcome of the 2022 midterms, the means needs to be an Act of Congress requiring concurrence of the Senate one way or the other. Hardball by the House by itself won’t, and shouldn’t, be enough.