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I was thinking about a method to choose House delegations. The party with the most votes gets its slate/list of candidates put in. These candidates are voted on in a districtwide primary popular vote. The party winning the statewide popular vote for the House, gets its slate of candidates sent to the House of Representatives.

Do the Constitution and applicable federal laws allow states to elect representatives in this manner?

This could be used as an alternative to gerrymandering in a large safe state for either party such as Tennessee or New York.

Extra: When Maryland tried to gerrymander their maps, they might have wanted this because MD is a safely blue state. They avoided the 8-0 (all D) map because though it would probably work, it wasn't as safe.

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    By "large" I mean having more than 3 or so districts. Nov 25 '20 at 15:11
  • Ironically, the usage of "at large" elections like this was a tactic used to create "safe" states.
    – user14430
    Nov 25 '20 at 19:55
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Do the Constitution and applicable federal laws allow states to elect representatives in this manner?

The text of the Constitution is silent on the issue, though Justices on the Supreme Court have disagreed on that point (see below). However, ArtI.S2.C1.2, Electors for the House, presents a possible Constitutional problem with the proposed scheme, in that, "Members chosen ... by the People" is qualitatively different than electing a slate of Representatives chosen by a party (or party primary). In particular, independent voters would be excluded from the choice of representation.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

With respect to the law, 2 U.S. Code § 2c., Number of Congressional Districts; number of Representatives from each District; declares that "no district [is] to elect more than one Representative".

Historically, Representatives were elected "at-large". However, in 1842, Congress passed a law requiring "single-member districting". In 1872, the law was amended to require "equally populated districts".

See, ArtI.S2.C1.1 Organization of the House of Representatives


The Court's disagreement

For the Court in Wesberry, Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase "by the People," to guarantee equality of representation in the election of Members of the House of Representatives. Justice Harlan in dissent argued that the statements on which the majority relied had uniformly been in the context of the Great Compromise – Senate representation of the states with Members elected by the state legislatures, House representation according to the population of the states, qualified by the guarantee of at least one Member per state and the counting of slaves as three-fifths of persons – and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally populated districts.

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  • Note that multi-member districts were still in frequent use well into the 20th century despite the 1842 law. This was due to inconsistent enforcement, and legal questions about whether they remained in force after reapportionment. The last state to elect its members at large was (I believe) Hawaii, who didn't establish single-member districts until 1971. Nov 26 '20 at 1:38
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There is nothing in the Constitution preventing such a system. In fact, this system, or something very similar to it, was used up until The Apportionment Act of 1842. Some states elected a slate of representatives on a 'general ticket' - each voter had as many votes as the state was apportioned representatives, but could only cast one vote per candidate. This lead to a system which de facto mirrored the one you propose - the parties of that time proposed a slate of representatives, and generally, voters would cast their votes as a straight-ticket vote for the whole slate.

After 1842, this changed - the Apportionment Act states:

Sec. 2. And be it further enacted, That in every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives to which said State may be entitled, no one district, electing more than one Representative.

Nevertheless, some states still elected representatives via a general ticket - Wikipedia has a good list here.

In 1967, Public Law 90-196 was passed, and is on the statute books as 2 U.S. Code § 2c. This law would be the current impediment to your proposed system.

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).

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The method of gerrymandering is to encyst those who prefer the out-of-power party in a minority of clean, uniform districts, with few of the in-power party there, and so scattering the in-power party in the rest of the districts, a majority of them, as to produce local majorities, and then a slight majority of districts supports the in-power party. Therefore, there are representatives from the out-of-power party. (if there are none, it is quite likely that the parties s support is fairly evenly scattered amongst the districts, and gerrymandering is needless.) In your method, the minority gets no representation, which is just as bad.

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