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This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision's meaning and reach. State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional election contests themselves. This has allowed each House to articulate its view of Article I, Section 5 through two means, both inadequate: conclusory resolutions that do not address the reach or effect of the constitutional command and committee reports that do not represent the views of the entire body. This motley collection of precedents is what currently constitutes the law of Article I, Section 5. It is a regime governed by authorities that are confused, conflicting, non-authoritative, and outdated. To be clear, the inconsistencies are not due to experimentation or policy divides. The differences among states do not reflect their status as laboratories of democracy. Instead, this divide tracks fundamental disagreements over the meaning of Article I, Section 5, and it confirms that jurisdictions are struggling to reconcile the constitutional command with state control over election administration. The harm caused by this arrangement is significant. Without clarification of basic procedural questions, election contests are governed by unpredictability and uncertainty, which in turn leads to the potential for partisan manipulation, illegitimacy, and delay. Serious concerns in any context, these problems are particularly acute in the context of disputed federal elections, where the need ...

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute's constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act. Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of the severability rules without questioning whether those rules should apply in the first place. This Article, insisting that severability justify its prominent position among the tools of statutory construction, concludes that it should be abolished. Courts should replace it with a fundamentally broader inquiry into, first, the constructions of a constitutionally defective statute that would diffuse its constitutional defects, and, second, which among these options the legislature would prefer. In making the case that the severability framework should be retired and replaced, this Article proceeds in three parts. Part I situates the severability framework in contemporary case law and the scholarly literature. In so doing, it reveals that this framework tends to enjoy the unquestioning acceptance of both courts and scholars, who, at best, cite vague and undertheorized principles of judicial restraint in support. Part II explores the constraining effect that severability has on the courts and the statutes they are charged with construing. On the judicial branch, severability imposes a restrictive structure that prohibits courts from relying on a host of otherwise permissible approaches to statutory construction. On the legislature's work, it imposes a disruptive regime that generates doctrinal confusion and stifles legislative ...

This Article seeks to reveal how the practice of litigating as redistricting, which has evolved into a form of litigation highly susceptible to procedural manipulation, has created a type of redistricting that grants profound power to those who choose to litigate. In so doing, this Article rejects any understanding of the redistricting process that understands the influence of litigants to be somehow negated or neutralized by the involvement of courts. It recognizes, moreover, that many of the defining features of redistricting litigation–which are, in certain respects, analogous to those characterizing other problematic forms of litigation–nevertheless reflect some of the most startling effects of applying the trans-substantive norm of civil procedure to extraordinary causes of action. These effects stem in part from what is at stake. Redistricting through litigation has far-reaching and even multiplied effects on the public interest, as challenges to state-imposed redistricting regimes affect the composition of the legislatures that enact future statutes. Moreover, these effects are neither rare nor random, arising at unpredictable times in an unpredictable fashion. Redistricting litigation instead occurs with clocklike regularity every redistricting cycle, with jurisdictions across the country relying on this form of litigation to ensure legality and simply when necessary to overcome legislative deadlock. In other words, the effects of redistricting litigation are profound–and predictably so. In exploring the implications of these observations, this Article initiates the project of subjecting litigant participation in redistricting to the scrutiny it warrants. Part I begins with an introduction of redistricting litigants. It identifies several traits that best characterize these actors, a group whose composition is heterogeneous, ad hoc, and largely self-selected. It situates these actors as critical participants in the redistricting process but as virtual non-entities in the existing literature. After ...