Rucho v. Common Cause and Alexander v. South Carolina State Conference of the NAACP both involved congressional redistricting. Each took place, ostensibly, under Article I, Section 4, Clause 1 of the Constitution, the Elections Clause.

From Rucho, “Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering.” Later, “The only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” And elsewhere, “As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause,” and, “We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.” Those quotations are just a few of the mentions of the Elections Clause.

In Alexander, the majority opinion begins, “Redistricting constitutes a traditional domain of state legislative authority. See Moore v. Harper, 600 U. S. 1 (2023); see also U. S. Const., Art. I, §4, cl. 1.” (Justice Thomas’s concurring opinion dedicates several pages to the Elections Clause–more on that for a later post.)

Of some interest is framing these cases as an Elections Clause issue to start. One would assume that if a challenger showed up in federal court with a partisan gerrymandering or state gerrymandering challenge to a state legislative map, county commission map, or local school board map, one would reach the same result. But there wouldn’t be the Elections Clause framing, which helps the Court ensure that state legislatures have primary responsibility alongside Congress, and the federal courts (by implication) are left out of the process. Each time the Court takes a federal congressional case as a vehicle to address an issue of election that that likely is meant to have broader applicability, and each time it uses the Elections Clause as a partial justification for the result it reaches, the Elections Clause casts a much longer shadow over election law that one might otherwise anticipate.