As the biggest headlines in the news continue to be political gerrymandering, I have decided the best solution is a new constitutional amendment. While Congress will doubtfully support it, it may be the only solution that the majority can get behind. My proposed 28th Amendment would read something like this:
Proposed Twenty-Eighth Amendment to the Constitution of the United States
Section 1. The districts for the election of Members of the House of Representatives shall be established by an independent and neutral commission constituted under the laws of the United States.
Section 2. Following each enumeration conducted pursuant to Article I of this Constitution, such districts shall be reapportioned according to population.
Section 3. Districts shall contain, as nearly as practicable, an equal number of inhabitants.
Section 4. No county shall be divided between districts.
Section 5. All districts shall consist of contiguous counties, and counties within each district shall border as many other counties within the same district as practicable.
Section 6. In the establishment of districts, no consideration shall be given to partisan advantage, prior election results, incumbency, political affiliation, race, ethnicity, or any factor other than population and geography.
Section 7. Congress shall have the power to enforce and implement this article by appropriate legislation.
As I have said many times in recent weeks, gerrymandering is as old as the nation itself. That fact, however, does not make it right. Both parties, from the Federalists and Democratic-Republicans to the Whigs, and all the way to today’s Democrats and Republicans, have used gerrymandering to their advantage.
The stakes simply feel higher now as Democrats have convinced their followers that President Trump is not just simply the enemy as a Republican but is Hitler trying to instigate the Fourth Reich. This environment makes fair representation even more important.
It would be nice to believe Congress could solve this problem on its own, but as we all know, Congress struggles to work together on almost anything significant. The only thing Congress consistently seems able to agree upon is protecting its own institutional interests, such as not releasing the Epstein files or the congressional sexual misconduct and harassment investigation records. That raises an obvious question: Why would Congress pass legislation that might reduce its own political power?
To be fair, there is only so much Congress can currently do regarding elections. Our Constitution gives most election authority to the states: States decide voter registration procedures, polling locations, mail-in voting rules, ballot design, vote-counting procedures, election equipment, and certification processes. States also determine voter qualifications so long as those rules do not conflict with federal constitutional protections or federal law. Most importantly for this discussion, states currently control congressional district maps, while they must follow a few rules.
That said, the Supreme Court has granted the federal government some authority over elections in modern times. One important example is Wesberry v. Sanders (1964). While the Constitution requires representatives to be apportioned by population, it does not specify exactly how districts must be drawn. In Wesberry v. Sanders, the Court ruled that one person’s vote should count as much as another’s, requiring congressional districts to contain nearly equal populations, much like my proposed amendment.
However, the case did not establish any requirement that districts be compact, that counties remain intact, that districts avoid partisan favoritism, or that maps be free from political manipulation. Because of this, states remain free to gerrymander districts so long as populations remain roughly equal.
In fact, in Rucho v. Common Cause (2019), the Supreme Court openly acknowledged that partisan gerrymandering is unfair and “incompatible with democratic principles.” Nevertheless, the Court ruled that partisan gerrymandering claims present political questions beyond the reach of federal courts. In other words, it’s not unconstitutional and so the Court is powerless. Combined with decisions such as Louisiana v. Callais, the practical result is that states retain broad discretion in drawing districts so long as they generally comply with equal-population requirements and avoid unconstitutional racial discrimination. Districts can be any crazy shape the party in control can imagine.
States may effectively admit that district maps were designed to benefit one political party over another, and under current constitutional rules, federal courts can’t intervene.
(A note in case of confusion, in the Virginia case decided earlier this month, it was a Virginia State Supreme Court that ruled against gerrymandering as it broke the Commonwealth of Virginia’s Constitution, not the federal one.)
Because the U.S. Supreme Court has largely concluded that partisan districting disputes are matters for the political process rather than the judiciary, I believe my proposed 28th Amendment makes perfect sense. It establishes a clear constitutional standard for congressional districts that can move the country closer to the principle of “one person, one vote” in both theory and practice.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
