Congressional Apportionment Reform:
An Idea Whose Time Has Come
A Legislative Response to Citizens United
by Robert Mark
Overview: Defining the Problem
The decennial US Census has been used since 1790 as the basis for the United States representational form of government. As a result of growing population, the number of House members eventually quadrupled in size. In 1911, the number of Representatives was last fixed at 435. In principle, districts are reapportioned every ten years after the decennial US Census. The number of districts apportioned to each state is defined by Congress, in accordance with Title 2 of US Code. During the 1960s, the Supreme Court ruled in a series of cases that congressional and state legislative districts must consist of relatively equal populations. Specifically, the Court’s decision in Wesberry v. Sanders (1) mandated that states apportion congressional district boundaries based strictly according to population. (2)
Due to population shifts in the last fifty years, there has been a shift in the number of districts apportioned in each state which has caused extreme variances in the number of citizens per district from states losing districts to states gaining districts. As a result, "citizens in the larger district have less direct access to, and influence upon, their elected Representative – thus diluting the principle of ‘one man, one vote’, which has been upheld by the US Supreme Court." (3) In addition, the restriction to 435 members has effectively diluted the power of the people over their own representative in the People’s House from 1/33,000 to 1/709,980. By limiting the number of districts with an increasing population, we have made the Peoples House susceptible to big donors and special interests, especially in light of the Citizens United case unleashing corporate money into American politics. Convoluted gerrymandered congressional districts have resulted in making what was intended by the founders to be a relatively local office more like a state wide office, removing candidates from direct communication with the electorate necessitating reliance upon broadcast media. This has resulted in elections turning on who can afford the most negative ads and not on the character and ideas of the candidate who is known to all his neighbors, as were Davey Crockett and Sam Houston.
Article I, Section 2 of the United States Constitution provides :
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
Note: for purposes of apportionment, the division is made based upon the number of people, whether citizens or not. The Authors did not set a minimum number of districts. Ignoring the 3/5 rule (4), and based upon the 2010 Census of 308,745,538, the Constitution would currently limit the size of Congress to no more than 10,291 members. The current size of Congress is 435, or one MC for each 709,980 residents, not exactly the proportional representation the founders had in mind in limiting the size of districts to no less than 30,000 residents.
Historically, The First Congress attempted to address the number of districts when it approved a series of twelve amendments to the Constitution and submitted them to the States for ratification. The first such amendment, known as Article the First, dealt with apportionment.
Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. (5)
This amendment was proposed as a means to ensure a minimum representation for the common people in the new government defined by United States Constitution. In the First Congress, amendments properly addressing the issue were produced by both the House and the Senate, each providing for a minimum representation based on the expanding population of the nation. According to the original intention of the drafters of the amendment, the bolded "less" should have been "more", and the bolded "more" should have been "less". The text as it was approved by Congress and sent to the States was due to a scrivener’s error. However, both the original draft and the version approved by Congress contained an internal inconsistency that would have made it impossible to satisfy all the conditions at certain population sizes. (6)
Failure to for the States to adopt the Amendment prevented the problems created by the scrivener’s error. Under the intent of the framers of the amendment, a population of 308,745,538 in the 2010 census would have resulted in roughly 1625 districts of 190,000. Wyoming, the least populous state, would have three representatives. Currently, Wyoming has only one representative. (7)
During the period that the current U.S. Constitution has been in effect, the number of citizens per congressional district has risen from an average of 33,000 in 1790 to over 700,000 as of 2011. Prior to the 20th century, the number of representatives increased every decade as more states joined the union, and the population increased. No particular apportionment method was used during the period 1850 to 1890, but from 1890 through 1910, the increasing membership of the House was calculated in such a way as to ensure that no state lost a seat due to shifts in apportionment population. In 1881, a provision for equally-populated contiguous and compact single-member districts was added to the reapportionment law, and this was echoed in all decennial reapportionment acts through to 1911. In 1881, a provision for equally populated contiguous and compact single member districts was added to the reapportionment law, and this was echoed in all decennial reapportionment acts through to 1911. (8) [Emphasis Added]
Ratio of representation in the House,
SourceConstituents per Rep.
- 1789 U.S. Const. 30,000
- 1793-1803 1790 Census 33,000
- 1803-1813 1800 Census 33,000
- 1813-1823 1810 Census 35,000
- 1823-1833 1820 Census 40,000
- 1833-1843 1830 Census 47,700
- 1843-1853 1840 Census 70,680
- 1853-1863 1850 Census 93,425
- 1863-1873 1860 Census 127,381
- 1873-1883 1870 Census 131,425
- 1883-1893 1880 Census 151,912
- 1893-1903 1890 Census 173,901
- 1903-1913 1900 Census 194,182
- 1913-1923 1910 Census 212,407
- 2011-2020 2010 Census 709,759
In 1911, The Apportionment Act of 1911, Public Law 62-5, raised the membership of the U.S. House to 433 with a provision to add one permanent seat each upon the admissions of Arizona and New Mexico as states. As provided, membership increased to 435 in 1912. (9) Key provisions of the Act provided:
Section 1. That after the third day of March, nineteen hundred and thirteen, the House of Representatives shall be composed of four hundred and thirty-three Members, to be apportioned among the several States . . . (10)
Section 2. That if the Territories of Arizona and New Mexico shall become States in the Union before the apportionment of Representatives under the next decennial census they shall have one Representative each, and if one of such Territories shall so become a State, such State shall have one Representative, which Representative or Representatives shall be in addition to the number four hundred and thirty-three, as provided in section one of this Act, and all laws and parts of laws in conflict with this section are to that extent hereby repealed.
Section 3. That in each State entitled under this apportionment to more than one Representative, the Representatives to the Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative.
The law did not actually cap the number of districts, it just set the number based on the 1910 census. But it effectively limited the number of districts for 20 years. For the first and only time, Congress failed to pass an apportionment act after the 1920 census. In 1920, the Republicans removed the Democrats from power as the Whigs had done in 1838, taking the presidency and both houses of Congress. Due to increased immigration and a large rural-to-urban shift in population from 1910 to 1920, the new Republican Congress refused to reapportion the House of Representatives with the traditional contiguous, single-member districts stipulations because such a reapportionment would have redistricted many House members out of their districts. (11) (12) A reapportionment in 1921 in the traditional fashion would have increased the size of the House to 483 seats, but many members would have lost their seats due to the population shifts. (13) This left the allocations of the Act of 1911 in place until the 1930 census.
The Reapportionment Act of 1929 established a method for reallocating seats among the states, given population shifts and continuing the maximum of 435 representatives. (14) It was this act that actually set the cap on the number of members in the House of Representatives at 435, in effect set in place by both the failure of the Congress to reapportion in 1920 and the desire to cut representation to immigrant and rural to urban (black and southern) migrants. The bill neither repealed nor restated the requirements of the previous apportionment acts that districts be contiguous, compact, and equally populated. The Reapportionment act of 1929 did away with any mention of districts at all. This provided a solution to the problem of threatened incumbents by allowing the political parties in control of the state legislatures to draw redistricting lines at will. (15)
It was not clear whether these requirements were still in effect until in 1932 the Supreme Court of the United States ruled in Wood v. Broom, 287 U.S. 1 (1932), that the provisions of each apportionment act affected only the apportionment for which they were written. Thus the size and population requirements, last stated in the Apportionment Act of 1911, expired immediately with the enactment of the subsequent Apportionment Act.
The Apportionment Act of 1941, Act of Nov. 15, 1941, 55 Stat. 761-762, made the apportionment process self-executing after each decennial census. This lifted Congress’s responsibility to pass an apportionment act for each census, and ensured that the events surrounding the 1920 census would not happen again. The number of U.S. Representatives increased temporarily to 437 when Alaska and Hawaii were admitted as states during the 86th Congress (seating one member from each of those states without changing the apportionment of the other seats because of the Article I requirement that each state have at least one representative). After the 1960 census and the 1962 election, that number went back to 435. (16) Since 1961, there has been no apportionment legislation passed by Congress. The self-executing provisions of the Apportionment Act of 1941 made it unnecessary to enact an apportionment bill. Unfortunately, the requirements for districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants have not been the law for everyone since 1929.
Federal law requires the Clerk of the House of Representatives to notify each state government of its entitled number of seats no later than January 25 of the year immediately following the census. After seats have been reapportioned, each state determines the boundaries of congressional districts–geographical areas within the state of approximately equal population–in a process called redistricting, 2 U.S.C. § 2c. Any citizen of the State can challenge the constitutionality of the redistricting in their US district court. 28 U.S.C. § 2284(a).
Since 1846 the Texas Delegation to the United States Congress has grown from the original four to the current 36. Since 1936, the delegation has grown from 23 to the current 36, mostly at the expense of Northeastern and Midwestern (blue) states. (17) As a result of the 2010 Census, the following reflects the effects of the shift in population:
- States affected: 18
- Seats shifting: 12
- States losing seats: 10 (CT-1, NY-2, PA-2, OH-1, MI-1, IN-1, IL-1, WI-1, MS-1, OK-1)
- States gaining seats: 8 (NC+1, GA+2, FL+2, TX+2, CO+1, AZ+2, NV+1, CA+1)
- Last seats awarded: 431-IA (+44,339), 432-FL (212,934), 433-OH (+79,689), 434-CA (+33,941), 435-NC (+3,087)
- Next seats NOT awarded: 436-UT (-857), 437-NY-(47,249), 438-TX (-86,273), 439-MI (-50,889), IN-440 (-37,057)
- Closest winner: NC with 3,087 to spare.
- Closest loser: UT with -857 short.
- The most important difference is the total population in the nation: 281,421,906 total persons. This is significantly larger (2.7%) than the 274 million projected as a basis of the annual estimates throughout the decade, or the 276 million that was on the Bureau’s population clock. Obviously, this will affect the projections of seats based upon these annual estimates.
- New states added to the shift list: MI and IN at -1, NC at +1.
- Other changes from predictions: FL +2 (18)
- Despite the 709,000 average per congressional district, presently there is a wide range of difference in the size of districts depending on the state. The most populous district in America, according to the latest Census data, is Nevada’s 3rd District, where 960,000 people are represented by just one member. All of Montana’s 999,243 people likewise have just one vote in the House. By contrast, 523,000 people in Wyoming get the same voting power, as do the 527,000 in one of Rhode Island’s two districts and the 531,000 in the other. (19) In the seven single district states, the numbers follow:
STATE CONGRESSIONAL POPULATION
DISTRICTS PER DISTRICT
- Alaska 1 710,231
- Delaware 1 900,877
- Montana 1 999,243
- North Dakota 1 672,591
- South Dakota 1 833,354
- Vermont 1 625,741
- Wyoming 1 563,626
- In the past 90 years, the U.S. has become the second most under-represented democracy in the entire world, but the size of the House of Representatives has remained the same. In the years since last expanding the size of the House, U.S. population has more than tripled, but the size of the House of Representatives has remained the same. In the past 90 years, four states have joined the Union, but the size of the House of Representatives has remained constant. In the past 90 years, Congress has addressed permanently increasing the size of the House of Representatives only once. In 2001, Alcee Hastings (D-FL) introduced H.R. 506, a resolution to create a commission to study the size of the House of Representatives and the method by which representatives are chosen. While the U.S. claims the title "Leader of the Free World," after India, it is the least representative democracy in the world. Look at how the U.S. House of Representatives compares to other democratic country’s representative bodies:
- British House of Commons 659 Members 1 Member per 90,288
- Canadian House of Commons 301 Members 1Member per 103,924 people
- South Africa National Assembly 400 Members 1 Member per 108,553 people
- German Bundestag 669 Members 1 Member per 123,752 people
- Austrailia House of Representatives 148 Members 1 Member per 129,521 people
- Japan Shugi-in 500 Members 1 Member per 253,100 people
- Russia State Duma 450 Members 1 Member per 324,447 people
- Nigeria House of Representatives 360 Members 1 Member per 342,605 people
- Brazil Camara dos Deputados 513 Members 1 Member per 467,190 people
- U.S. House of Representatives 435 Members 1 Member per 645,632 people
- Indian Lok Sabha 552 Members 1 Member per 1,836,963 people
- The effect that an increase in the size of the House of Representatives will have on the American political system is obvious. Increasing the size of the House will result in a reduced amount of campaign spending, smaller Congressional districts, more personal interaction between Members of Congress and their constituents, and most importantly, better representation for the American people." (20)
But increasing the size of the house not only effects Congressional Races, but would have a decided effect on Presidential Politics. Looking at the data above, in the 2012 election, the Democratic States lost 9 (net 7) seats that would have represented votes in the electoral college whereas Republican States picked up a net 7. If population trends from the Midwest and Northeast to the Sunbelt, red states will pick up electoral votes and blue states will lose electoral votes. In a close electoral election, this could be a game changer. (21)
First, this author recommend that the Congress pass legislation increasing the size of the House to no fewer than one congressperson for every 563,646 or the population of the least populous state. Using this formulary would result in 548 members, not an unmanageable number. If however, one goal is to increase the influence of the people over individual members of congress and un-dilute such influence, a more ideal scenario is to create one district for every 281,823, thereby assuring Wyoming of two districts and providing Montana with 3. Then allowing for an increase in all the states and equality of population in the districts nationally. This is almost three times the population for the legislative districts created for the new Iraqi government under the guidance of the United States. (22) Obviously, this model rather than current U.S. reality proved to be a more workable democratic model than our own broken system in the minds of the Nation Builders at The Pentagon.
Critics will argue that such an increase would be beyond the capacity of the Capitol Building. While this may be true, it does not preclude the use of technology for televised debate and electronic voting, either from remote areas in the Capitol or the Congressional Offices, or God forbid, from within the districts. This would give citizens greater access to their Representatives. (23)
The idea of 3,000 or more members of Congress, constituting a Washington-based power elite, would scare people if we continue to apply the 1780s approach to governing. But our government needs to evolve to reflect the world we live in. What if members of Congress went to Washington quarterly for two week conventions? The rest of the time they could live in their districts, using widely adopted technologies to collaborate and vote online. It is ridiculous that a member must be "present" to cast a vote in Congress in 2012. (24)
In addition, it would allow for the passage of legislation, restoring the 1910 and prior years rules requiring "districts composed of a contiguous and compact territory" which would further increase access and reduce the need for multiple district offices to provide for ever expanding geographical districts, thus providing cost savings in an era of record deficits. [See Appendix I for more on compaction of districts].
Finally, because there are more of them, pay to Members of Congress could be cut and the size of congressional staff’s could be slashed. As a larger Congress would make it feasible for no Congressperson to sit on more than one committee, this would further justify staff expense cuts. This change, which would considerably reduce the power of individual legislators and increase the influence of constituents, only requires a legislative change. This solution is far less difficult and complicated than a Constitutional chang;: however, cementing specific requirements in the Constitution similar to that required under the never approved Amendment the First might be considered in the future.
This author is not so naive as to suggest that Members of Congress would easily leap at an opportunity to dilute their own power. It is possible to organize over the next decades public demand with a Grover Norquist-like pledge for congressional candidates first seeking office to support this change. In addition, applying the principles of as set forth in Wesberry v. Sanders, (25) a court could be asked to enter a judgement ordering increasing the size of the districts in order to insure that each district meet the constitutional requirement of proportionate population and in light of the Voting Rights Act. Clearly, the almost 2-1 disparity between Montana and Wyoming would suggest that the House is not apportioned based upon equal population. For further discussion of expansion of Congress, see http://www.thirty-thousand.org/#Q5.
One proposal suggested is that rather than increase the size of the House, the Congress reapportion the voting strength of each congressperson based upon the size of his district. Thus, districts with higher populations get a fractional increase in the weight of their vote and those with small populations get a fractional decrease in the weight of their vote. This author does not endorse that proposal as it would be too confusing for the average voter and sounds on it’s face undemocratic and quite possibly unconstitutional. Raising the cap to 1098 with a floating adjustment for every census is far easier a pill for the average citizen to swallow. After 90 years, the time has come.
- 1. 376 U.S. 1 (1964)
- 2. http://www.14thamendment.us/apportionment/apportionment.html. Hence the Voting Rights Act of 1965.
- 4. Repealed 1868 by ratification of Section 2 of the Fourteenth Amendment to Constitution.
- 5. "Constitutional Amendments Not Ratified". United States House of Representatives. Archived from the original on 27 September 2007. Retrieved 2007-09-30.
- 6. http://en.wikipedia.org/wiki/Article_the_First
- 7. Id
- 8. "Fair Representation – Meeting the Ideal of One Man One Vote", Michael L. Balinski and H. Peyton Young
- 9. http://en.wikipedia.org/wiki/United_States_congressional_apportionment
- 10. In this formulary Texas had 18 districts and New York had 43
- 11. "Apportionment Legislation, Census Bureau, History", www.census.gov
- 12. Fair Representation – Meeting the Ideal of One Man One Vote", Michael L. Balinski and H. Peyton Young, page 46
- 13. http://en.wikipedia.org/wiki/Reapportionment_Act_of_1929
- 14. Act of June 18, 1929, 46 Stat. 21
- 15. http://en.wikipedia.org/wiki/Reapportionment_Act_of_1929
- 16. 73 Stat. 8
- 17. http://www.tlc.state.tx.us/redist/historical_congress.htm
- 18. http://www.polidata.org/census/app0ldl.htm
- 19. http://www.nytimes.com/2009/09/18/us/politics/18baker.html
- 20. Letter dated May 21, 2001 from Representative Alcee Hastings, M.C. (D-FL) to the members of United States Congress as cited at http://archive.fairvote.org/?page=866
- 21. Ignoring the possibility that changing ethnic demographics will shift sunbelt states to blue or purple.
- 22. http://www.cnn.com/2012/03/09/opinion/flynn-expand-congress/index.html
- 23. http://news.yahoo.com/increase-size-congress-nice-idea-fatally-flawed-234500180.html
- 24. http://www.cnn.com/2012/03/09/opinion/flynn-expand-congress/index.html
- 25. Supra