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Sunday, October 08, 2017

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

First, it is somewhat unlikely that Congress would even gain this extra power. Virtually everyone agrees that the case will come down to Justice Kennedy's vote, and he has indicated before -- and indicated again during the oral argument -- that a claim for partisan gerrymandering should rest within the First Amendment, not the Fourteenth Amendment. Congress does not have an explicit enforcement power under the First Amendment. If the plaintiffs win this case and the Court recognizes a judicially manageable standard to root out the most egregious gerrymanders, it is more likely to do so under the First Amendment's protection of free speech and free association. That would not give Congress any extra powers. [UPDATE: In the comments Howard correctly notes my error in not thinking about incorporation, in that Congress would have the power to enforce the First Amendment against the states via the Due Process Clause of the Fourteenth Amendment. (And geez, I even teach incorporation in Con Law II! How could I overlook it here?!) Perhaps the argument for Congressional authority would be, textually-speaking, stronger if the Court recognizes the harm under the Equal Protection Clause. Either way, this just shows why I shouldn't try to blog and watch baseball at the same time! My apologies for the mistake.]

Second, even if the Court recognizes the injury under the Fourteenth Amendment, it is highly unlikely that Congress would try to "enforce" this new standard to influence state and local elections, as Prof. Morley suggests. Joey Fishkin, in a comment to Prof. Morley's post, noted that Congress gained the power to "enforce" the one-person, one-vote standard after Baker v. Carr (1962) and Reynolds v. Sims (1964), and yet Congress has never tried to legislate under that standard. There is nothing to suggest that Congress would suddenly decide to use its newfound power to influence state and local elections when it has not done so in other contexts.

Moreover, Congress already has the power to dictate rules against partisan gerrymandering for congressional elections. Justice Scalia explicitly pointed to this power in his decision in Vieth, the 2004 case that split the Court, as one reason the Court should stay out of partisan gerrymandering claims. Congress certainly has the constitutional power to try to influence the outcome of federal elections by enacting rules about partisan gerrymandering, yet it has never done so. If it has not attempted to influence its own elections (such as by passing rules intending to protect incumbents), there is little reason to think that a newfound power after Gill would cause Congress to decide to use this power for state and local elections.

Third, as Prof. Morley acknowledges (and Asher Steinberg echoes in his comment), the Supreme Court is highly likely to apply City of Boerne's "congruent and proportional" test to any Congressional "enforcement" under Section 5 of the Fourteenth Amendment, tempering a partisan-based congressional action. Thus, there would be a high burden for Congress to justify any regulation of state and local elections in the name of enforcing a new rule about partisan gerrymandering. In fact, the Supreme Court has generally been less deferential to Congress, as compared to states, in its election rules. States have a much easier time justifying their election rules than does Congress, notwithstanding Congress's plenary power to override state rules under Article I, Section 4. Surely any federal laws that have the intent or effect of influencing the outcome of state and federal elections would face this same close judicial scrutiny.

Finally, even if Congress both had this power and used it to pass new election laws, would that be so terrible? The likelihood of a new law that has a clear partisan valence is highly unlikely given that, at least under current Senate rules, it takes 60 votes to pass legislation. A party would thus need a supermajority to engage in such blatant overreach. Moreover, most congressional regulation of the election process has been a net positive: from the Voting Rights Act to the Help America Vote Act, Congress has legislated to fix clear problems in the election system, not to engage in partisan warfare. The most likely use of congressional power, then, would be to eliminate the worst abuses of state and local partisan gerrymandering.

In sum, while Prof. Morley is theoretically correct that a decision recognizing a new test for egregious partisan gerrymanders could increase Congress's power, there is little reason to think that, practically speaking, Congress would ever actually use this power in the way that Prof. Morley fears.

(Full disclosure for me: I signed onto Pam Karlan's amicus brief in favor of the plaintiffs in this case.)

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink

Comments

I agree that legislation is unlikely. But I disagree as to point # 1--Congress can enforce all of § 5 with congruent-and-proportional legislation, including the Bill of Rights provisions incorporated against the states through § 1's Due Process Clause. Wasn't that Boerne itself? Yes, the Court declared the statute invalid, but that was because it was not C/P, not because Congress cannot enforce First Amendment rights.

Posted by: Howard Wasserman | Oct 8, 2017 10:53:40 PM

I agree that legislation is unlikely. But I disagree as to point # 1--Congress can enforce all of § 5 with congruent-and-proportional legislation, including the Bill of Rights provisions incorporated against the states through § 1's Due Process Clause. Wasn't that Boerne itself? Yes, the Court declared the statute invalid, but that was because it was not C/P, not because Congress cannot enforce First Amendment rights.

Posted by: Howard Wasserman | Oct 8, 2017 10:53:41 PM

Howard: I suppose that's correct. For some reason I wasn't thinking about incorporation but just the Fourteenth Amendment itself. On reflection, I'll update the post to fix the error.

Posted by: Josh Douglas | Oct 8, 2017 10:58:50 PM

If congress draws district-lines around black communities (or democrat communities), that chills/discourages blacks/democrats from moving away from that community (or encourages blacks/democrats to move to that community in hopes of getting a district-line drawn around "their" community).

Government can not chill/discourage rights (like freedom of movement across towns, counties, states, etc.)

"The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished."
-Ashcroft v. ACLU (2004)

The only way not to manipulate (encourage/discourage) moving/migration patterns is to draw district-lines as close to squares as possible, regardless of all other considerations. Otherwise people will not move because too many movers will make their district disappear, or they will move to an area they don't want to in hopes that they are the person that creates the majority necessary to get a district-line drawn around their community.

Posted by: Can't provide incentives to move or stay | Oct 9, 2017 12:28:36 AM

How would Bolling v. Sharpe's reverse incorporation doctrine affect federal congressional redistricting / gerrymandering cases?

Posted by: Bowling for suep | Oct 9, 2017 12:32:08 AM

"The people of California reasonably could have concluded that older persons in general should not be discouraged from moving to a residence more suitable to their changing family size or income. Similarly, the people of California reasonably could have concluded that the interests of family and neighborhood continuity and stability are furthered by and warrant an exemption for transfers between parents and children."
-Nordlinger v. Hahn (June 18, 1992)

If you tell people that if too many blacks move out of a community, it will not longer be a voting district (because it will not have a large enough majority to elect the candidate of its (african-american community's) choice), you will discourage them from moving.

This discouragement from moving is an unconstitutional chill on the freedom of movement/migration.

Posted by: Square voting-districts don't manipulate migration patterns | Oct 9, 2017 12:40:37 AM

Gerrymandering promises that if democrats or blacks move to an area, the legislature will draw a voting-district around them. This encourages them to self-segregate into these political/racial communities. And then the supreme court will legalize forced busing-requiring people to be bused to further away schools to create "racially-proporionate" schools.

If you tell people that the voting-district will be drawn like a square regardless of whether or not its possible to draw a gerrymander around their political/racial community, they are more likely to live where they have the best jobs or schools rather than where they'll be able to create a voting-district/voting-block. Then they won't self-segregate into racial neighborhoods and you won't need forced busing.

Posted by: Square voting-districts don't manipulate migration patterns | Oct 9, 2017 12:45:16 AM

The reason schools have to be equally-funded (rather than higher-funded in richer neighborhoods) is because otherwise people would be motivated to move to those communities with the highest-funded schools--rather than the neighborhoods with the lowest crime or best jobs.

That is, disproportionate school funding chills people's freedom of movement to lower-school-funded neighborhoods or to lower-police-neighborhoods (higher crime neighborhoods).

The government has to uniform/standardize government services across neighborhoods so people don't feel they have to move to the areas with the best government services.

Allowing crime to run rampant in an area, or allowing failing schools, chills people's freedom of movement/migration to that neighborhood

At the other extreme are regulatory measures which, no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of freedom of movement/migration rights.

Posted by: uniform govt services across neighborhoods | Oct 9, 2017 12:59:53 AM

The reason the court had to incorporate the bill of rights is because if New York didn't recognize gun rights, that would discourage people from moving there, just as, if Utah didn't recognize abortion rights, that would discourage people from moving there. This discouragement (chill) of freedom of movement if no more moral than discouragement of freedom of expression.

This is the entire point of the negative/dormant commerce clause--to make sure states don't try to influence migration patterns. Rights, taxes, and funding have to be uniform/standardized to prevent the encouragement of moving or staying in an area.

Posted by: game, set, matchbook, and tinder | Oct 9, 2017 1:10:28 AM

"if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting"

And congress has never intruded into state or local matters before. See Wickard v. Filburn and Gonzales v. Reich.

https://supreme.justia.com/cases/federal/us/317/111/case.html

"It is hardly lack of due process for the Government to regulate that which it subsidizes."

The government subsidizes elections, so they can regulate them.

Posted by: Speedy Gonzales | Oct 9, 2017 1:25:26 AM

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