Foley: Constitutional Preservation, the Marbury Duty & Congressional Gerrymanders

The following is the second in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.

Edward B. Foley

This blog essay is the second in a series derived from a contribution to a University of Georgia Law Review symposium and picks up where the first installment left off.

Suppose the president of the United States, either this or a future one, decided to declare a state of national emergency and, using that declaration as a pretext, ordered the suspension of the next regularly scheduled presidential election and that, contrary to the express language of the Twentieth Amendment, the incumbent’s term of office would extend indefinitely until the declaration of national emergency were lifted.

That purported extension of the president’s term of office would be patently unconstitutional.  In addition to violating the unambiguous text of the Twentieth Amendment, it would contravene the Supreme Court’s repeated assertion that there is no “national emergency” power; nor any “national emergency” exception to the limitations that the Constitution imposes on the exercise of governmental authority.  Among the other major cases in which the Court has confirmed this point are the Minnesota Mortgage Case (Blaisdell) and the Steel Seizure Case (Youngstown).

Thus, were a president to attempt to extend his (or her) term of office in this unconstitutional way, the Supreme Court would be called upon to enjoin this unconstitutional usurpation.  Assuming compliance with the “case or controversy” requirements of the judicial power in Article III, including a plaintiff with proper standing (perhaps a candidate seeking to challenge the incumbent in the next regularly scheduled presidential election), the Court could not shirk its responsibility to invalidate the unconstitutional extension of the incumbent’s term on the ground that the litigation was too politically sensitive.  There might be fear that the incumbent president would refuse to obey the judicial order nullifying the president’s unconstitutional decree, just as there was fear that President Nixon would refuse to obey the Court’s order requiring him to turn over the Watergate tapes.  But that fear would not justify the Court’s failure to issue its order.  Under the doctrine of Marbury v. Madison, in a properly presented lawsuit the Court must declare and enforce what the Constitution requires.  It follows that in a government that purports to operate according to the rule of law, the president would acquiesce in the Court’s pronouncement of the constitutional command.  Otherwise, there would be a genuine and full-fledged constitutional crisis.

What all this establishes is that the Court’s duty to enforce the terms and requirements of the Constitution under Marbury v. Madison operates to thwart those other parts of the government that would endeavor to subvert it or its provisions.  The judicial effort to save the Constitution from subversion may not be successful.  There can be no guarantee of that.  But what Marbury does promise is that if the Constitution does fail, it won’t be because the federal judiciary refused to intervene when its jurisdiction is invoked.

So much, so good—but what does it have to do with congressional gerrymandering, which is the issue at hand because of the Benisek case from Maryland, now under consideration at the Court?  To see the connection, a couple more hypotheticals will help.

First, suppose a state legislature decides that it would prefer elections to the federal House of Representatives to be held every six years, just like Senate elections, rather than “every second year,” as explicitly required by Article II of the Constitution.  Imagine, thus, a state law providing that the incumbent Representative will be deemed automatically reelected for two additional terms, regardless of whatever the tally of votes in those two elections actually shows.  This state law would be patently unconstitutional, just like an effort to extend a presidential term beyond the four years constitutionally specified.  In this instance, the subversion would concern the express plan that Representatives, unlike Senators, be directly accountable to the electorate every other year.  Whether that degree of direct accountability is wise is irrelevant; it is what the Constitution require and thus what the judiciary under Marbury v. Madison is obligated to enforce.

Nor would the Supreme Court, to invalidate this patently unconstitutional state law, need to wait for congressional legislation condemning that law as an inappropriate exercise of the state’s power under the Elections Clause to regulate the “times, places, and manner” of congressional elections unless and until Congress enacts superseding procedural regulations for these elections.  The attempt by the state legislature to extend the terms for the state’s federal Representatives from two years to six would be inherently invalid and subject to immediate judicial nullification, simply by virtue of the Constitution itself.  Thus, the Marbury duty would call upon the Court to act, to preserve the biennial accountability of these Representatives, regardless of congressional silence on the existing effort to subvert this core feature of the popular sovereignty that the Constitution established.

Second, suppose instead that a state law provided that to unseat an incumbent federal Representative from that state, an opposing candidate must win two-thirds of the ballots cast in the election, not merely a majority or plurality.  This state law would not violate an express provision of the federal Constitution in the way that the previous hypothetical did.   Nonetheless, it would contravene the principle of democratic accountability that the biennial nature of these elections was designed to serve.  To require an opponent to receive two-thirds of the vote in order to unseat an incumbent obviously would stack the election in the incumbent’s favor, whereas the Constitution clearly contemplates that a challenger will unseat an incumbent if the electorate simply prefers the one to the other (as reflected by a majority or plurality of the ballots cast).  Thus, it would be imperative for the federal judiciary to invalidate this unconstitutional two-thirds requirement for unseating an incumbent Representative.  As an exercise of the Marbury duty, this judicial nullification of the state’s attempt to subvert the character of congressional elections mandated by the Constitution would preserve the democratic accountability that the Constitution envisions.

The gerrymandering of congressional districts is not exactly the same as this hypothetical two-thirds requirement for unseating incumbent Representatives.  But it is getting close.  Extreme gerrymandering protects incumbents and threatens democratic accountability in much the same way that demanding a challenger to obtain a supermajority of the ballots does.  Thus, insofar as extreme gerrymandering frustrates the biennial accountability of congressional elections that the Constitution contemplates, the Marbury duty calls upon the federal judiciary to invalidate that subversion of the constitutional design.

To be sure, as the Supreme Court previously has observed, the Constitution does not simplistically demand that for congressional elections a political party is entitled to a majority of seats just because that party’s candidates collectively receive a majority of votes across all the congressional districts.  Innocuous factors associated with redistricting, like honoring the geographical boundaries of local municipalities, might cause a minority of votes overall to yield a majority of congressional seats.  Still, the egregious manipulation of district lines—far beyond what valid considerations of local geography would warrant—could cause a political party to protect its incumbents from democratic accountability contrary to the degree of popular sovereignty that the Constitution mandated with its provision for biennial elections to the House of Representatives.  Now that new statistical techniques enable political scientists, and thus the courts, to distinguish redistricting maps based on valid considerations of local geography from “outlier” maps motivated by a political party’s desire to give its incumbents an unwarranted advantage over challengers, the Marbury obligation to preserve the democratic accountability that the Constitution mandated for House of Representative elections requires the federal judiciary to invalidate these “outlier” gerrymanders, just as the judiciary would be obligated under Marbury to invalidate a rule that a challenger must win two-thirds of the vote in order to unseat an incumbent Representative.

At the oral argument in Gill (the Wisconsin case), the Chief Justice made clear that he does not relish the idea of the federal judiciary invalidating a partisan gerrymander, since to do so necessarily would involve the judiciary in a political dispute.  But the Court inevitably would be involved with politics if it were called upon to tell a president that, no, the president’s term cannot constitutionally be extended beyond four years.  Likewise, the Court inevitably would be enmeshed in politics if it invalidated a state law that attempted to protect the state’s incumbent federal Representatives either by automatically giving them two extra terms, regardless of what the ballots in those elections showed, or by requiring challengers to win two-thirds of those ballots in order to unseat the incumbents.  Inasmuch as extreme congressional gerrymandering subverts the democratic accountability required by the Constitution, just as these hypotheticals do, the Marbury duty compels the Court to invalidate this subversion of the Constitution.  That there are political stakes involved because politicians are attempting this subversion in order to insulate incumbents from the will of the electorate is no excuse for judicial abstention.  The Court must endeavor to preserve the democratic accountability that the Constitution mandates, whatever might happen politically in the aftermath of the Court’s Constitution-preserving decree.



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