Article 1, Section 4, Clause 1: Time, place, and manner of holding Congressional elections

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 chusing Senators.

This clause vests the power to regulate Congressional elections in both the state legislatures and Congress. However, Congress is given supremacy where there is any conflict between state and federal law.

This has a number of important implications. Congress could, if it wished, determine districts for the House itself. It has chosen instead to leave this to the state legislatures, but has imposed the requirements that Representatives not be elected at large (as was the practice with several states well into the 20th century) but by district, one Representative per district. It has also imposed the reasonable requirements that districts be contiguous, of as nearly equal population as practical, and compact. The latter is obviously aimed at making gerrymandering more difficult.

Gerrymandering, as the reader is likely aware, is the process of fine-tuning district boundaries to make the associated Congressional seat as secure for one party as possible. There are variations on this: Where there are local concentrations of a minority party, the majority party in the legislature may draw districts so as to break up and dilute those local concentrations and secure all the associated seats. Another variation is for the majority party in the legislature to concentrate regions favored by the minority party in a few sacrificial districts. For example, if a majority party has the support of 60% of voters statewide, it can tune districts to avoid any district having a majority of the opposing party. If the margin is narrower, a majority party might create a few districts where 80% of the voters support their opponents, so that the remaining larger number of districts have a comfortable majority for their own party. This kind of districting is obviously abusive and partisan in character, but nothing in the Constitution or current federal law prohibits it, unless the districting also disadvantages a particular racial minority or produces districts that are obviously noncompact.

Let us here make a modest proposal. The Constitution, in this clause, gives Congress the power to mandate how districts are drawn. The problem of dividing up a region into districts that are compact, contiguous, and roughly equal in population is fundamentally a pure exercise in  computational algorithmics, known as the domain decomposition problem. To be sure, it’s not an easy problem. We are informed that a perfect solution is NP-complete, the most difficult kind of problem for which to find an exact solution. But it is very often the case that practical algorithms can find a less than optimal, but nonetheless quite good, solution to NP-complete problems, and redistricting appears to be one of these problems. Computer scientists have developed algorithms for dispassionately breaking up a problem into reasonable pieces, so that the pieces can be assigned to different processors on a massively parallel computer in such a way that each processor has about the same amount of work (analogous to population) and the perimeters of each piece are minimized to reduce interprocessor communication. This is almost a perfect description of nonpartisan congressional redistricting. Let Congress mandate that this shall be the method used.

We are not naive. But hope is one of the cardinal virtues.

Congress has also chosen to fix the times of elections (on the Tuesday following the first Monday in November, our familiar election day) and to make it a federal offense to engage in various kinds of election fraud. This, too, is reasonable.

Less reasonable are proposals now before Congress to require states to accept early voting, mail-in voting, and even late voting, which are clearly driven by partisanship and are likely to erode confidence in the fairness of elections among members of minority parties. To say that the Constitution permits certain legislation is not to say that such legislation is wise.

Congress has also used this clause to justify restrictions on campaign financing, and the courts have (incorrectly, in our view) ruled such laws constitutional. We understand the concern with campaign contributions that may look very much like bribes. Nevertheless, we do not know how to square such laws with the freedoms guaranteed in the First Amendment. Furthermore, the courts have ruled that individuals cannot be prohibited from spending their own money in their own way to promote their political preferences — a ruling that is correct, but clearly favors the wealthy over the rest of the citizens, who can make their voices heard only by pooling their resources.

Our proposal is to prohibit all donations directly to a candidate, or to an organization he controls, on the grounds that such donations are effectively indistinguishable from bribes. But remove all restrictions on spending on political speech, direct or indirect, that are independent of the candidates. Let such donations be secret: After all, a secret donation in support of a candidate cannot be a bribe, since there can be no quid pro quo. The criminal offense would then be violation of that secrecy, or clandestine control of such an organization by a candidate. These regulations of campaign financing are not actually very far from what we have now with respect to PACs which, after all, were a response to earlier campaign finance laws.

The alternative, of public financing of campaigns, runs afoul of Jefferson’s wisdom: “... to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical…” We are perfectly aware that Jefferson made this remark in connection with establishments of religion, but we find it just as applicable to public financing of political campaigns.