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In an answer to this question, someone cites this federal law:

[2 U.S. Code § 2c][1] - Number of Congressional Districts; number of Representatives from each District

In each State entitled in the Ninety-first Congress or in any subsequent Congress thereafter to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title, there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative (except that a State which is entitled to more than one Representative and which has in all previous elections elected its Representatives at Large may elect its Representatives at Large to the Ninety-first Congress).

Suppose a state is entitled to eight representatives in Congress, and the constitution of the state says every voter throughout the whole state gets the same ballot listing the same candidates and can vote for as many as the voter chooses. Thus if 30 candidates for the eight seats on the ballot you could vote for two of them or 15 of them, etc., and the eight with the most votes are elected.

Obviously this would eliminate gerrymandering.

But it conflicts with a federal statute.

It is considered permissible for a state legislature to decide that the governor will appoint all of the presidential electors, or the legislature will do so, or a different elector in each of several districts will be elected (Maine and Nebraska do that, so their electors do not always vote unanimously) or to either permit or forbid "faithless electors" (Washington allows them but makes them pay a fine; Minnesota says they are out of order and replaces them on the spot with someone else,...), and this mode of at-large election of representatives seems reasonable by comparison.

If a state constitution provided for this method of election, and someone challenged it in federal court because of that statute, would the statute survive?

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  • "t is considered permissible for a state legislature to decide that the governor will appoint all of the presidential electors, or the legislature will do so" A doubtful premise, but not strictly speaking on point.
    – ohwilleke
    Oct 2, 2023 at 14:53
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    Further to @ohwilleke's comment, the legislature can decide to let the governor appoint electors because the constitution explicitly gives state legislatures that power. The constitution says different things about the election of representatives than it says about the appointment of presidential electors, so provisions related to one aren't directly applicable to the other.
    – phoog
    Oct 2, 2023 at 16:43
  • @phoog : My point was that by any standard within civilized bounds, this is at least as reasonable as the rules about presidential electors. Oct 2, 2023 at 22:27
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    @MichaelHardy whether it is reasonable is a different question from whether it is permissible under the constitution. The framers' purpose in constituting the house of representatives was different from their purpose in constituting the electoral college. Remember that senators were chosen by the state legislatures. Representatives were (and are) chosen by the people. States were given the power to decide how to choose electors. The fact that states were given that power does not have much bearing on whether representatives can be elected at large (IIRC some formerly were, in fact).
    – phoog
    Oct 3, 2023 at 9:22
  • @phoog : I was entirely aware when I wrote that paragraph that it's a different question. And my comment above stands. Oct 3, 2023 at 15:16

1 Answer 1

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The law would be struck down for conflicting with a federal statute. Congress has the authority to regulate many aspects of federal elections. In particular, Article I, Section 4 of the U.S. Constitution states:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

The "except as to the place of choosing Senators" was superseded when the 17th Amendment provided for the direct election of Senators.

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