Can the Federal Government draw state districts for National Congressional elections?
There are several sections of the constitution at issue: Article I, Sec. 2, Clause 1 and 2, Article 1, Sec. 4, and the 10th amendment.
The 10th Amendment will apply if the power at issue was not delegated to the United States. If not delegated, it is reserved to the states or to the people.
There is no express power granting Congress the ability to draw districts within the states, either for national or state elections. If such power exists, it must be part of some other power in the Constitution. Proponents must be shown by example and text, not mere implication or appeals to political necessity that such a power exists. If no such examples can be given there is a presumptive default to the 10th Amendment and to the States.
Article 1, Sec. 2 requires state legislatures to “prescribe the Time, place, and manner of holding elections for Senators and Rerpresentatives”, with an exception that Congress may, “at any time by Law make or alter such regulations, except as to the place of chusing [sic] Senators.”
The history of this provision is instructive. The Anti-Federalists feared national power reaching down and intermeddling with the states. The Federalist Papers were written to either assuage or combat these fears. Federalist papers 59-61 detail this provision’s balance of power between the states and the National government.
If this power resided only in the states they could regulate their elections to deprive the national congress of elected members, crippling the Federal Government. If the Feds had the sole power, they could manipulate the elections so as to keep themselves in power by refusing to call for elections, making the places so far distant from where the people were that it would discourage voters from attending, or require some other strange manner of elections that would make voting impractical. All arguments for and against this provision were regarding the regularity of elections, that is, that the elections should happen and that representatives should be chosen and sent to Washington. Neither proponents nor opponents debated the issue of redistricting.
While “times” and “places” of holding elections are clearly not connected to the power of drawing districts, the issue is contained in the words “holding” and “manner”. The Dictionary defines “manner” as a “way in which a thing is done, or a style.” Note that it has nothing to do with WHAT is done or the substance of it. Note also that the verb is “holding” elections, and not one of “drawing” districts or “apportioning” representation.
First, the word “manner” cannot be a general grant of power. It is explicitly listed next to two other powers concerning elections, those of “time” and “place.” “Manner” must therefore have limits to what it entails, and can not be a general grant of power to regulate ALL matters of federal elections. General grants of power are not foreign to the Constitution. Such grants include “all bills” for revenue should originate in the house; that it shall have power to make “uniform rules” for naturalization; to make “rules for the Government of land and naval forces”, and to exercise exclusive legislation “in all cases whatsoever” over the District of Columbia. Where there are general grants of power, general language is explicitly used. Where there are enumerated and limited powers, there are specific lists of those powers or their objects. The language here is that of a list, not a general grant.
Second, the Constitution already annexed specific requirements for Congressional elections in other portions of the text. These include regulating the age of representatives, residency requirements in the state, and the proportionality for representation. Nowhere did the Constitution grant the Federal government a scheme, power, or plan for proportional districting. And where no power is granted, where every opportunity to grant either general or specific power was available and cannot be shown, the default is reserved under the 10th Amendment that it was not granted.
Third, state districts are not “manners” of holding elections. Grammatically, districts are drawn, but they are not drawn during elections. They are decided as a matter for the state legislature and districting counsels, and are drawn at different times and places, not during the process of elections. Even if the term “manner” were read generally to mean a power to regulate all matters during an election, the power would still not extend to the drawing of districts.
Based upon my reading of the text and the debates surrounding the powers and objects of this clause, it seems there is no grant of federal power to draw federal districts in the states. Congress may ensure that elections happen, and may make regulation that the people should have access, proportional representation, and whatever other requirements are detailed in the Federal Constitution, but there it’s powers end. Here the powers are shared, but are limited to those three objects, which never have included the power to draw districts.
Since the congress does not have this power, it is obvious that it cannot delegate such a power to any regulatory agency. Government may not delegate a power it does not have. Nor can the executive or judicial branches assume this power, since the clause grants power between the state and national legislatures, and no other branch.
Should there be any doubt upon these matters, all doubts should be resolved in favor of the 10th amendment. It is the rebuttable presumption in favor of state power. Proponents of a national power over a state matter bear the highest possible burden of proof that a power not explicitly granted by the text exists, and had been independently recognized or acknowledged by some original source, act, or judgment in keeping with the expository writings of those who drafted the Constitution.