Previously I have written that the Fourteenth Amendment specifically provides for a reduction in representation for any state that engages in voter suppression.
Section Two of the Fourteenth Amendment provides in part:
“[W]hen the right to vote at any election … is denied to any … citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion [thereto]….”
In view of the GOP Supreme Court majority deciding that partisan gerrymandering is a “political question” beyond the purview of the courts, I want to take this matter further. Because if the Congress is willing to play hardball, it has a remedy.
Article 4, Section 4 of the US Constitution provides:
“The United States shall guarantee to every State in this Union a Republican Form of Government.”
Importantly, In Luther v. Borden (1849), the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that “it rests with Congress to decide what government is the established one in a State . . . as well as its republican character.”
In other words, it has already been established that what the guarantee of a “republican form of government is” is not for the Federal Courts, but for the Congress and the President to determine.
Do States have a “republican form of government” if a minority of the people are able to entrench themselves as a permanent legislative majority based on the outcome of just one election? Now that the Supreme Court has said that the Courts may not act, I think Congress has every right to declare that this is the case, both at the state and federal election levels, and to refuse to seat anybody winning such elections.
Here’s how I envision it could work. Congress would pass a “Republican Form of Government” law, whereby Congress could examine the State and Congressional districts of any State to determine if there was a partisan gerrymander that was an “abridgment” of the right to vote under Section 2 of the Fourteenth Amendment, and that if Congress so found, then it could determine that any such State was not permitting a “republican form of government.” Relying upon that finding, Congress could refuse to seat more than the proportional number of gerrymandered winners, or order new state elections in districts that were not gerrymandered. It would not have to wait for actual election results. It could notify the State in advance of the penalty if the State proceeds with such gerrymandered districts. Remember, since we now have Supreme Court precedent that “republican form of government” questions are political issues, as are matters of partisan gerrymandering, the door to this kind of Congressional action is wide open.
Such a law would also be in accordance with Article I, Section 5 of the United States Constitution which states that:
“Each House shall be the judge of the elections, returns and qualifications of its own members….”
This had been interpreted that members of the House of Representatives and of the Senate can refuse to recognize the election or appointment of a new representative or senator for any reason. It is particularly instructive that these issues arose often after the Civil War, as southern States sent Representatives where newly freed slaves were not allowed to vote. Even before the Fifteenth Amendment, the second section of the Fourteenth Amendment I have discussed was enacted as a remedy.
In my previous article, I used the example of North Carolina, where over 50% of the votes cast in 2018 were for Democrats, but Democrats were only elected in only 3 of the state’s 13 Congressional Districts. If North Carolina persisted in this gerrymander, then under a “Republican Form of Government” law, Congress could refuse to seat more than 3 GOP election winners. Congress could also similarly act on state legislative seats, or refuse to accept the North Carolina legislature as elected, as legitimate.
I realize this is a radical suggestion, but not to play hardball at this point is to accept that a minority may entrench itself in power forever without remedy. The GOP has been playing hardball for decades. It’s time for us to fight back.