We’ve prevented election deniers from overruling elections based only on the imagination of sore losers. Hallelujah. But things sometimes do go wrong which need to be corrected. Courts, quite properly, have ordered recounts after reviewing the evidence. Courts have also rewritten legislative district boundaries that violated one-person-per-vote or other state or federal constitutional rules. Those cases rest on evidence, not on someone’s imagination.
Some recent congressional elections present well-documented problems. Ohio courts threw Ohio district boundaries out repeatedly while Ohio’s governor and legislature played Trump’s game – resisting and delaying until there was no remedy. That didn’t make the Ohio boundaries constitutional, but just blocked fixing them.
In Florida, voters overwhelmingly approved a constitutional amendment that says districts cannot abridge “the equal opportunity of racial or language minorities to participate in the political process or to diminish their ability to elect representatives of their choice.” But Florida’s governor and legislature chopped up districts with large Black communities and buried them in overwhelmingly white and Republican districts, in violation of both the Florida and U.S. constitutions.
The current U.S. Supreme Court refuses to do anything about gerrymandering, perforce refusing to define the constitutional limits of districting. That allows partisan majorities to manipulate the results for their own advantage.
New York and several other states created nonpartisan districting commissions to write the districts. I’ve criticized that approach because, without a definition of gerrymandering, those commissions can do odd and unhelpful things – as the New York commission arguably did. But they are certainly less open to the kind of manipulation prevalent in places like Florida and Ohio which manipulated their district lines for partisan advantage. Unlike the denial of Biden’s victory over Trump, there’s nothing made up or imaginery about the problems in Ohio and Florida which are documented in the lines drawn and in the evidence brought to courts.
Art. I, '5 of the federal Constitution does provide a remedy for stolen elections, saying “Each House shall be the judge of the elections, returns and qualifications of its own members ….” The U.S. Supreme Court limits that to violation of constitutional rules, which were violated in both cases. So Congress could refuse to seat both delegations and demand a revote based on proper line drawing. This isn’t about getting even. This is about breaking the rules and getting away with it. Refusing to seat the Florida and Ohio delegations would keep the Democrats in charge until those states conducted proper elections.
It would almost certainly go to the Supreme Court but there’s benefit in any decision. Holding that duly elected officials can’t be refused office undercuts the election deniers. Holding that officials elected in violation of the Constitution aren’t duly elected and can be refused their seats, means Ohio and Florida have to do it right.
That leaves a political issue. Most of the public seems locked into one of the political parties. But it’s a mistake to confuse most with all. Some won’t distinguish the documented constitutional violations of Florida and Ohio from the speculative fancies of presidential election deniers. And some will be radicalized by any attempt to change results.
But if we’ll have to live with Republican gerrymandering year after year, then maybe it’s worth taking control of Congress and rewriting the rules so this can’t happen again. Congress can regulate the “Manner of holding Elections for Senators and Representatives” including the drawing of district lines and require properly crafted districts.
Whether that’s possible requires intimate knowledge of each of the members of Congress and I have to defer to the leaders of Congress on that issue.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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