Section 2401-2422 of the H.R. 1 - For the People Act of 2021 would require states to set up independent districting commissions in order to prevent gerrymandering. This seems pretty clearly to infringe on state's rights, and doesn't seem like it would be under the federal government's authority to require (as good for democracy as it would be). I've skimmed the text, but I am not a lawyer--was this written in some way which tries to anticipate this challenge? At the moment, it appears there's little chance of this bill passing the senate, but presumably the authors would still try to write it such that it would stand up to any potential challenge as strongly as possible, should it get passed.

Is this part of HR1 written in such a way that it appears to be enforceable, based on the authority of the federal government? If not, is there such a way for the federal government to require states to set up independent districting commissions without amending the constitution?

1 Answer 1


The US Constitution doesn't say one way or the other how a state's representatives are to be chosen, so until this law was passed in 1841, a state could have all of their representatives elected at-large, without districts. It is only recently that SCOTUS has gotten involved in redistricting questions: here is a summary of leading redistricting rulings. A recurring theme in these rulings has been the Equal Protection Clause, where certain redistricting plans (or non-plans) were found to violate that clause (especially ordering a state to redistrict when it refused to do so with the result being that population changes diluted the vote of those living in certain districts). Wesberry v. Sanders, 376 U.S. 1 held that

The constitutional requirement in Art. I, § 2,that Representatives be chosen "by the People of the several States" means that, as nearly as is practicable, one person's vote in a congressional election is to be worth as much as another's

thus redistricting is a justiciable question, answerable with respect to the federal government's need to enforce the 14th Amendment. It is not necessary to amend the Constitution further to specify a means of enforcing that clause.

  • Thanks, this answer gave me a lot of good information (that summary of redistricting rulings is great!). Based on this, it seems to me that the key clause relevant to my question is the elections clause of the constitution law.cornell.edu/constitution-conan/article-1/section-4/clause-1 which in fact explicitly gives Congress the authority to regulate how senators/representatives are chosen. Arizona State Legislature v. Arizona Independent Redistricting Commission seems tangentially related to this--but have there been more relevant cases that made it to SCOTUS?
    – spacetyper
    Feb 1, 2021 at 7:02

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