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

Mon Nov 5 10:49:30 PST 2018

For some reason the question of a max of 1 per 40k vs 1 per 30k was a
subject of fierce debate, and you can actually see the smudge on the
original Constitution (near the far left margin) in Article 1 where the
adjusted the language from Forty to Thirty.

On Mon, Nov 5, 2018 at 1:17 PM Sean Parnell <
sparnell at philanthropyroundtable.org> wrote:

> 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
>
> 650.725.4851
>
>
> On Nov 5, 2018, at 9:50 AM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
> Thanks all. I will update my post.
>
>
>
> *From: *Law-election <law-election-bounces at department-lists.uci.edu> on
> behalf of Rob Richie <rr at fairvote.org>
> *Date: *Monday, November 5, 2018 at 9:41 AM
> *To: *"pkarlan at stanford.edu" <pkarlan at stanford.edu>
> *Cc: *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
>
>
>
> 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>
> 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
>
> 650.725.4851
>
>
> On Nov 5, 2018, at 8:14 AM, John Tanner <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> 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
>
>
>
>
>
>
>   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.*
>
> <image001.png>
> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D101956&title=Supreme%20Court%20Summarily%20Rejects%20Constitutional%20Challenge%20to%20the%20Size%20of%20the%20House%20of%20Representatives>
>
> Posted in legislation and legislatures
> <https://electionlawblog.org/?cat=27>
>
>
>
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> --
>
> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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