[EL] Larger House based on secretly ratified amendment

[Justin Levitt]

FWIW, this is not Mr. LaVergne's first trip through the court system on
this issue.  Earlier in this cycle, in *LaVergne v. Bryson*, he filed suit
in federal court in New Jersey, and (before *Shapiro v. McManus
<http://redistricting.lls.edu/files/MD%20Shapiro%2020151208%20Opinion.pdf> *--
or, if you prefer, *Benisek I*) a three-judge court was not convened.
Documents are here <http://redistricting.lls.edu/cases.php#NJ>.

-- 

Justin Levitt
Professor of Law
Associate Dean for Research
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA  90015
213-736-7417justin.levitt at lls.edussrn.com/author=698321
@_justinlevitt_



On Thu, Jun 7, 2018 at 8:22 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>
> Litigating to a Larger House of Representatives Based on a Secretly
> Ratified Constitutional Amendment? <http://electionlawblog.org/?p=99364>
>
> Posted on June 6, 2018 4:19 pm <http://electionlawblog.org/?p=99364> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> It is no secret that the size of Congressional districts is dramatically
> larger now than at the time of the ratification of the Constitution. Many
> have argued over the years that we would have better representation if we
> increased the number of House members dramatically. See Bruce Bartlett
> <https://economix.blogs.nytimes.com/2014/01/07/enlarging-the-house-of-representatives/>
>  and Brian Frederick
> <https://www.rawstory.com/2014/10/unhappy-with-congress-thats-because-there-arent-enough-representatives/> in
> 2014, and Doug Mataconis
> <https://www.outsidethebeltway.com/do-we-need-a-bigger-house-of-representatives/> collects
> more arguments in favor of a larger House.
>
> Jonathan Bernstein expressed skepticism,
> <https://newrepublic.com/article/80297/it-time-expand-the-house-representatives> and
> I’m skeptical too. It may make it easier to contact Representatives if
> there were more of them, but to make those folks easy to reach and
> responsive there would have to be *a lot* more of them. That, in turn,
> would mean a gigantic House of Representatives, and I suspect we’d have all
> kinds of problems with governance and corruption with a large, mostly
> anonymous House.
>
> There have been lawsuits periodically arguing that the size of the House
> is unconstitutionally small (here’s a NY Times write up of a case from
> 2009 <https://www.nytimes.com/2009/09/18/us/politics/18baker.html>), and
> now there’s a lawsuit (Lavergne v. U.S. House of Representatives
> <http://stafnelaw.com/wp-content/uploads/2018/06/LaVergne-June-4.pdf>)
> pending before a three-judge court in Washington D.C., before Judges
> Kollar-Kotelly, Moss, and Pillard. That’s a really sharp panel and they
> will give the arguments a fair hearing.
>
> The legal claim is more than a bit nutty, and it does not appear to be
> litigated very well. But in essence (as noted in this Town Hall piece
> <https://townhall.com/columnists/pauljacob/2018/06/04/the-first-and-most-important-first-amendment-n2486974?utm_source=thdaily&utm_medium=email&utm_campaign=nl&newsletterad=>),
> depends on the idea that the country ratified a  constitutional amendment
> but no one knows it.
>
> From this oppositional pleading
> <http://stafnelaw.com/wp-content/uploads/2018/03/Dkt-111-2018.03.05-Fed-Def-Opposition-to-Neumans-Motion-for-Leave-to-File-2nd-Amend-Complaint.pdf> by
> DOJ:
>
> *Mr. LaVergne and four co-plaintiffs—including Mr. Neuman—brought this
> case on April 28, 2017. ECF No. 1. They claim that there is a provision in
> the United States Constitution— known only to them—requiring the House of
> Representatives to be apportioned such that there be at least one
> representative for every 50,000 persons in the United States, which, by
> their math, requires that the House contain at least 6,230 members as of
> the last census. See Am. Compl. at 19 ¶ 1, ECF No. 4. For a House that size
> to achieve the quorum necessary to conduct business, 3,116 members would
> have to be present. Id. at 20 ¶ 1. Because the House of the current 115th
> Congress contains only 435 members, Plaintiffs say, each and every action
> taken by that House— and presumably that of every other Congress in recent
> history—lacked a quorum and must be declared illegal and void ab initio.
> Id. at 67 ¶ J. This would seemingly invalidate many hundreds of laws and
> other legislative actions, but Plaintiffs target three specific examples:
> the election of Paul Ryan to be Speaker of the House on January 3, 2017,
> id.at <http://id.at> 67 ¶ I, the enactment of a joint Case
> 1:17-cv-00793-CKK-CP-RDM Document 111 Filed 03/05/18 Page 5 of 18 2
> resolution disapproving a broadband-privacy regulation on March 28, 2017,
> id. at 71 ¶ 10, and the passage by the House of the American Health Care
> Act of 2017 on May 4, 2017, id. at 75 ¶¶ 6–7.*
>
> *Plaintiffs’ novel apportionment theory arises from a constitutional
> amendment that was proposed in 1789 but never ratified by the required
> number of states. That proposed amendment read:*
>
> *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. Id., Ex.
> J. If ratified, this amendment would have modified the language in Article
> I stating that “the number of Representatives shall not exceed one for
> every thirty Thousand.” Art. I, § 2, cl. 3.*
>
> *[Footnote: On its face, that language of Article the First does not
> support Plaintiffs’ position that the House is under-populated. The
> proposed amendment would have set a high ceiling (which the current House
> membership would not exceed), whereas Plaintiffs advocate a high floor.
> Plaintiffs contend, however, that there was a scrivener’s error in the
> engrossed version of Article the First and that the last instance of the
> word “more” in the proposed amendment should have read “less”: “. . .
> nor less than one representative for every fifty thousand persons.” Id. at
> 37–40 ¶¶ 1–8. Plaintiffs therefore urge the Court to retroactively rewrite
> the engrossed version of the amendment and the ratification resolutions of
> all those states that approved it so that they all fit what they contend to
> have been the “correct” language. Id. at 40 ¶ 8.]*
>
> *Id., Ex. J. If ratified, this amendment would have modified the language
> in Article I stating that “the number of Representatives shall not exceed
> one for every thirty Thousand.” Art. I, § 2, cl. 3.1*
>
> *Contrary to any accepted account of history, Plaintiffs claim that
> Article the First was fully ratified by the requisite number of states and
> that it is part of the United States Constitution, a fact that they say was
> “lost in history for over 220 years” but “will be documented and presented
> in detail at time of trial.” Id. at 30–31 ¶ 7. Specifically, Plaintiffs
> claim that they have proof that Connecticut ratified Article the First in
> 1789 or 1790. Id. at 28 ¶ 6. In reality, as is known, thelower house of the
> Connecticut legislature voted to ratify Article the First with the other
> eleven proposed amendments in October 1789, but the upper house did not
> complete the process. See Thomas H. LeDuc, Connecticut and the First Ten
> Amendments of the Federal Constitution, S. Doc. No. 75-96 at 2 (1937). A
> new legislature then took the matter back up in 1790. This time, the lower
> house voted to ratify only the latter ten amendments (those that are now
> known as the Bill of Rights) but not Articles the First and Second. Id. at
> 3. The upper house, however, voted to ratify all twelve amendments. Id. The
> matter was therefore again deferred for the next legislature. In that
> legislature, the lower house voted to reject all of the amendments, and the
> matter appears never to have been taken up again. Id.*
>
> *Notably, Plaintiffs’ argument on Article the First relies not on any
> newly discovered documentary evidence, as they imply, but on their novel
> legal contention that the known actions of the Connecticut legislature as
> described above resulted in its ratification of Article the First.
> Specifically, Plaintiffs assert, without much exposition, that Article V
> (which governs constitutional amendments) somehow silently exempts
> bicameral state legislatures from acting bicamerally. Am. Compl. at 25–26
> ¶¶ 1–2. Consequently, Plaintiffs say, Connecticut should be deemed to have
> ratified Article the First when its lower house alone voted to do so in
> 1789. See id. at 28 ¶ 6 (contending that the Connecticut legislature
> ratified Article the First “by . . . Article V standards” in October 1789).
> If not, then Article the First should be deemed ratified when only the
> upper house of a later-constituted legislature voted to do so in 1790. Id.
> (contending, “alternatively,” that Article the First should be deemed
> ratified in “May 1790 if the ‘Upper House Council’ is part of the
> ‘Legislature’ for Article V purposes”). In other words, Plaintiffs insist
> that “for Article V purposes” Connecticut’s bicameral legislature may act
> unicamerally when it comesto the ratification of constitutional amendments.
> Plaintiffs offer no legal support for this unorthodox notion.*
>
> *Plaintiffs are not shy about the remedies they seek. They ask this Court
> to, among other things: (1) declare 2 U.S.C. § 22 unconstitutional, id. at
> 59 ¶ A; (2) order state officials in Connecticut, Kentucky, and Virginia to
> notify the Archivist of the United States that they have ratified Article
> the First (using Plaintiffs’ “corrected” language), id. at 36 ¶ A; (3)
> order the Secretary of Commerce to report to the President of the United
> States that the House of Representatives must contain 6,230 members
> according to the 2010 census, id. at 59–60 ¶ C; (4) order the President to
> report to the Clerk of the House that the House must contain 6,230 members,
> id. at 61–62 ¶ D; (5) order the Clerk of the House to report the new number
> of representatives to every state governor, id. at 63–65 ¶ E; (5) order
> state officials in each of the 50 states to hold new elections for
> representation in the House, id. at 65–66 ¶ F; and (6) declare each and
> every action by the House of Representatives of the 115th Congress illegal
> and void, id. at 67 ¶ J. To effectuate this wide-ranging remedy, Plaintiffs
> have sued several hundreds of defendants, including numerous federal
> officials as well as officials in each of the fifty states.*
>
> Plaintiffs’ case has lots of procedural problems as well. It does not
> appear to be handled by lawyers who can litigate properly before the court.
>
> Ultimately, the question whether we should expand the House of
> Representatives is one for the Constitutional amendment process. Whatever
> else we can say on the policy question, I’m confident that the remedy is
> not going to be imposed by the federal courts on the country.
>
> Posted in legislation and legislatures
> <http://electionlawblog.org/?cat=27>
>
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