The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho

By Kevin Wender

Redistricting activists have long argued that partisan gerrymandering poses a fundamental threat to American democracy. These concerns have become particularly acute as increasingly sophisticated technologies have enabled legislators to draw highly gerrymandered maps that powerfully entrench partisan advantage. Despite these concerns, the U.S. Supreme Court, in the 2019 case of Rucho v. Common Cause, declared partisan gerrymandering to be a political issue outside the purview of the federal courts. The decision dealt a major blow to redistricting activists who, for over fifty years, had hoped that the Court would intervene to combat the drawing of electoral districts for partisan gain.

This Note examines and evaluates the possible avenues for comprehensive redistricting reform in the aftermath of Rucho. While recognizing some recent successes, this Note analyzes how state-level redistricting remedies face significant constitutional and political barriers that would likely prevent comprehensive reform. Furthermore, this Note argues that the Elections Clause gives Congress strong constitutional authority to enact nationwide anti-gerrymandering legislation, and that this power under the Elections Clause represents the last hope for achieving comprehensive redistricting reform. Finally, this Note proposes legislation that would require states to adopt independent redistricting commissions for congressional elections while allowing states to choose their own criteria and electoral priorities to govern the redistricting process.