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

Mon Nov 5 10:15:18 PST 2018

Tip of the hat for the best 10,000 Maniacs reference on the Election Law Listserve, 2018.

Sean

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Pamela S Karlan
Sent: Monday, November 05, 2018 12:58 PM
To: Rick Hasen <rhasen at law.uci.edu>
Cc: law-election at UCI.EDU
Subject: Re: [EL] Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

The Constitution sets only the minimum and maximum sizes of the House.  The minimum, now, is 50 because each state must get at least one seat.  The maximum, now, is somewhere north of 10,000 (and think of a band with that number in its name), because Art. I, sec. 2, cl. 3, say that “The Number of Representatives shall not exceed one for every thirty Thousand.”  One interesting question is what the 30,000 refers to.

According  to the Census Bureau, the total population of the United States on April 1,
2010—the date of the last census—was 308,745,538.That number divided by 30,000 is 10,291.51793333.

President George Washington vetoed the first post-1790 apportionment onthe grounds that
it violated the one representative per 30,000 inhabitants restriction because, although the
ratio of the nation’s total population to the number of representatives complied with the
restriction, the way the seats were allocated meant that some states received more
representatives than their state population divided by 30,000 would produce. See U.S. Dep’t
of Commerce v. Montana, 503 U.S. 442, 449 & n.17 (1992) (describing that history). To my
mind, David Currie persuasively explains why using the national population, rather than the
population of individual states, is the correct reading of the proviso. See David P. Currie, The
Constitution in Congress: The Second Congress, 1791-1793, 90 NW. U. L. REV. 606, 613-14
(1996).

Pam Karlan
Stanford Law School
karlan at stanford.edu<mailto:karlan at stanford.edu>
650.725.4851

On Nov 5, 2018, at 9:50 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
Thanks all. I will update my post.

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Rob Richie <rr at fairvote.org<mailto:rr at fairvote.org>>
Date: Monday, November 5, 2018 at 9:41 AM
To: "pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>" <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>>
Cc: 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

Pam, Sean and John are absolutely correct - -435 is no magic number, just an accident of history that goes with a certain federal election law or practice becoming seen as "constitutional" if done for a generation or two. Other examples include states holding statewide plurality vote elections to determine how to allocate electors for president, using single winner districts for the US House, and establishing a definitive Election Day for congressional elections.

Having 435 House Members certainly could use more attention heading to the 2020 census, as the average population of congressional districts has tripled since the last change in House size after the 1910 census.

Rob Richie

On Mon, Nov 5, 2018 at 12:28 PM Pamela S Karlan <pkarlan at stanford.edu<mailto:pkarlan at stanford.edu>> wrote:
And up until the permanent reapportionment act in the 1920’s, Congress in fact chose the size of the House after every decennial census.
Pam Karlan
Stanford Law School
karlan at stanford.edu<mailto:karlan at stanford.edu>
650.725.4851

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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