New York University Public Law and Legal Theory Working Papers

Document Type



30 Nova L. Rev. 253 (2006)


Competitive elections are the minimal essential element of democratic systems. They promote broad public debate, stimulate voter participation, and are the central means by which voters hold officeholders accountable. Yet as is now widely recognized, such elections are in decline in the United States, due in part to the intentional and systematic creation of artificially safe election districts.

This article provides a constitutional framework for responding to this problem. In recent years, the Supreme Court has more aggressively enforced constitutional limitations on the scope of Congress's enumerated powers. In the same way, the Court has begun to enforce limits on the Art. I, Sec. 4 power of state legislatures to set the ground rules for congressional elections. Art. 1, Sec. 4 is the only source of constitutional power states have to regulate national elections. But just as Congress' powers under Art. I are limited to the scope and purposes for which granted, the Art. I enumerated power does not authorize state legislatures to design congressional districts with the systematic and intentional aim and effect of creating artificially non-competitive election districts. Not all election districts can be made competitive, nor is competitiveness the only relevant democratic and constitutional value. But state legislative manipulation of congressional districts that intentionally and systematically aims to create overwhelmingly safe election districts is not within the purposes or scope of the power Art. I grants. More generally, Art. I is an important source of limitation on the ability of states to manipulate national elections.

Date of Authorship for this Version

July 2006