[EL] FW: Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

[Rick Hasen]

Message from Justin:

From: Levitt, Justin
Sent: Monday, November 05, 2018 9:10 AM
To: John Tanner <john.k.tanner at gmail.com>
Cc: Sean Parnell <sparnell at philanthropyroundtable.org>; Election Law Listserv <law-election at uci.edu>
Subject: RE: [EL] Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

I should have added two more things: first, this dismissal was just from an appeal of a denial of a plaintiff’s motion for summary judgment, not from the case as a whole.  But I’d also expect the rest of the case to be similarly dismissed when the time comes.

And second, the filings for this case (including quite a few Founding-era documents about Madison’s original proposal) are here<http://redistricting.lls.edu/cases-DC.php#DC>, and filings from a quite similar precursor case in New Jersey (LaVergne v. Bryson) are here<http://redistricting.lls.edu/cases.php#NJ>, if anyone’s interested.

From: Levitt, Justin
Sent: Monday, November 05, 2018 9:04 AM
To: John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>>
Cc: Sean Parnell <sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>>; Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

I think Rick’s referring to the claim in the lawsuit, which is that Madison’s original proposed amendment (his real “First” Amendment), to cap the maximum number of people per representative, was actually ratified in  the 18th century.  And in that context, I think Rick was saying that if there’s a claim for a constitutional cap on the maximum size of a district (requiring Congress to act), it’s going to have to come through a new amendment rather than through judicial recognition that an old one was actually ratified.

I don’t believe Rick was disputing the notion that Congress has the latitude to expand the size of the House if it wishes.
--
Justin Levitt
justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>

On Nov 5, 2018, at 8:14 AM, John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>> wrote:
Right.  The current size was set in 1911 by statute
Sent from my iPhone

On Nov 5, 2018, at 11:06 AM, Sean Parnell <sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>> wrote:

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.

My understanding is that the U.S. Congress could, if it desired, choose to expand the size of the House of Representatives? See https://history.house.gov/Historical-Highlights/1901-1950/The-Permanent-Apportionment-Act-of-1929/

Sean Parnell
Vice President of Public Policy, The Philanthropy Roundtable
1120 20th Street NW, Suite 550 South
Washington, DC  20036
(202) 600-7883 (direct)
(571) 289-1374 (mobile)
sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>







Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives<https://electionlawblog.org/?p=101956>
Posted on November 5, 2018 7:03 am<https://electionlawblog.org/?p=101956> by Rick Hasen<https://electionlawblog.org/?author=3>

There were no noted dissents in this order<https://www.supremecourt.gov/orders/courtorders/110518zor_o759.pdf> dismissing the case for lack of jurisdiction.

From my earlier coverage<https://electionlawblog.org/?p=99364>:

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….

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.
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