Congressional Reapportionment under Art. I, sec. 4, cl. 1, and fi libusters

Scarberry, Mark Mark.Scarberry at
Thu Nov 3 09:45:02 PST 2005

Some questions prompted by Prop. 77, the California redistricting initiative
to be voted on Tuesday:

Is it clear that Congress could take over reapportionment of congressional
districts under the Art. I, sec. 4, cl. 1 power to make regulations
concerning the manner of holding elections for congressional

If, so, is the potential of a Senate filibuster the only bar to a party with
a majority in both House and Senate doing a nationwide gerrymander? 

Or is reapportionment such a traditionally local matter that it would not be
feasible politically for a party to engage in such a gerrymander, due to the
public outcry that would result?

Assuming there would be no public outcry over a federal bill that would
create nonpartisan commissions in each state to draw nongerrymandered
congressional district lines, is it as a practical matter impossible to get
such a bill through the House because it would endanger too many incumbents?

Could Congress enact a federal law reforming reapportionment practices for
state legislative districts pursuant to the Article IV, sec. 4 federal
obligation to guarantee that every state will have a republican form of
government? Consider:

"Proposition 77 comes two years after a bipartisan gerrymander in which
legislative leaders of both parties agreed to draw boundaries designed to
preserve California's current balance of power.

"Not one of 153 legislative or congressional seats in last year's state
election changed party hands - and not one incumbent lost."

Mark S. Scarberry
Pepperdine University School of Law

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