[EL] DC House Voting Rights Bills -- Was: Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

Mon Nov 5 15:11:16 PST 2018

I wouldn't say that the DC House Voting Rights bills (purporting to grant
the District a voting member in the House) went nowhere.I wrote on this
back in 2009.

In 2007, bills introduced in the House and Senate nearly were sent to the
President (with cloture on the Senate bill failing by only three votes).
But Pres. Bush would have vetoed either of them on the basis that they were
unconstitutional. .

The bill was reintroduced by Sen. Lieberman in January 2009 as Senate Bill
160. Cloture was invoked  62-34. Pres. Obama had supported it as a Senator
and would have signed it, at least if it had been a clean bill. Sen. Ensign
succeeded in amending the bill to add a poison pill provision that would
have stripped DC of much of its power to enact gun control regulation and
that would have repealed most of the existing DC gun regulations. The bill
then passed in the Senate by a vote of 61-37. I presume the Democrats who
voted to pass it thought the poison pill could be stripped out in the House
and then the resulting clean bill might pass in the Senate. Instead, the
bill died in the House.

See my article with a long title:

Historical Considerations and Congressional Representation for the District
of Columbia: Constitutionality of the D.C. House Voting Rights Bill in
Light of Section Two of the Fourteenth Amendment and the History of the
Creation of the District, 60 Ala. L. Rev. 783, 785-88 (2009).

I predicted that the bill would become law, or as much "law" as any
thoroughly unconstitutional statute could be. As noted above, I thought the
Democrats would be able to strip out the poison pill provision. But, as
also noted above, it died in the House.

I supported (and support) the District having a voting member in the House,
but the bill was not the way to do accomplish that goal.

Mark

Prof. Mark S. Scarberry
Pepperdine Univ. School of Law

On Mon, Nov 5, 2018 at 11:55 AM, Adam Morse <ahmorse at gmail.com> wrote:

> There have been relatively recent proposals to vary the size of the House
> a small amount--around the 2000 redistricting, I think, there was a
> proposal to give Utah an extra seat at a point when it had the highest
> average number of voters per district, paired with a seat for the District
> of Columbia.  The idea was that it would provide partisan balance (adding
> one Democratic and one Republican seat), while addressing
> underrepresentation.  Under the proposal, the size of the House would have
> gone back to its current size after the next census.  Unsurprisingly, the
> proposal went nowhere.
>
> --Adam Morse
>
> On Mon, Nov 5, 2018 at 2:27 PM Smith, Brad <BSmith at law.capital.edu> wrote:
>
>> A 10,200 member House would be a trip. They could meet in the Capital One
>> Arena.
>>
>> *Bradley A. Smith*
>>
>> *Josiah H. Blackmore II/Shirley M. Nault*
>>
>> *   Professor of Law*
>>
>> *Capital University Law School*
>>
>> *303 E. Broad St.*
>>
>> *Columbus, OH 43215*
>>
>> *614.236.6317*
>>
>> *http://law.capital.edu/faculty/bios/bsmith.aspx
>> <http://law.capital.edu/faculty/bios/bsmith.aspx>*
>> ------------------------------
>> *From:* Law-election [law-election-bounces at department-lists.uci.edu] on
>> behalf of Sean Parnell [sparnell at philanthropyroundtable.org]
>> *Sent:* Monday, November 05, 2018 1:15 PM
>> *To:* Pamela S Karlan; Rick Hasen
>> *Cc:* law-election at UCI.EDU
>> *Subject:* Re: [EL] Supreme Court Summarily Rejects Constitutional
>> Challenge to the Size of the House of Representatives
>>
>> 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@
>> 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://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d101956&c=E,1,vM2GFNWciR6zrxIzqGpJ3RVMGErEC6ZPpWMkgD06BJ9WTRWHneX7CkDgcxwb4OV0RvtZC37GmV3ZZlTffR-LxPdF7avc2cbJ-uLOi8_XJqeOkb1KNUZkVQ,,&typo=1>
>>
>> Posted on November 5, 2018 7:03 am
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d101956&c=E,1,9zh-BSXGtoF0RNppZYsYu0WU5fA9BcE7iTmUaXQZTZz-V1umbYFrrAupBEPICOKfWBUa2e3_t5tisPWx_Li3qftHkubpokjtzCEaw_q37TREX16kcLao0Q,,&typo=1>
>>  by *Rick Hasen*
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fauthor%3d3&c=E,1,bLpnQIWpnKi43coy02173p2jHm8aqjO8ID3gOoJwFnNZ6P6IomRCSS8YNs0z9zYPUZHBV_3flwzUG2sWbsA5vA-cxGSN3g4rUr2Km2eyduCg&typo=1>
>>
>> There were no noted dissents in this order
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.supremecourt.gov%2forders%2fcourtorders%2f110518zor_o759.pdf&c=E,1,LQpG_xuWzL-r8v9fVmMcnkLqm7dk11eSsXbVoPYzn8BAc6ZKMSm3LvVJ9DNBu-OeOeMo0g9a3TugF2JdQUHQhWy1sr98vvVNhwZAkxkmF0io8QHaMQ,,&typo=1> dismissing
>> the case for lack of jurisdiction.
>>
>> From my earlier coverage
>> <https://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fp%3d99364&c=E,1,P7uJVPktaQPYClI24njQm5aKO1DQGOd6Itlgzgx2O__txGsijFC3XHEbgK6KVJyonXj_6ee_iWXDNxWDAPvmNIZ7gQBEDkLZYFAZMNUuR3iPcfSImE1J&typo=1>
>> :
>>
>> *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://linkprotect.cudasvc.com/url?a=https%3a%2f%2felectionlawblog.org%2f%3fcat%3d27&c=E,1,KTrW6Vq-OhllTnrmq8sX2oCsdjpCw209UdRbAQLKtcCfPEdOvTPhFkP5nOrxj3KSMpdlvudX42Hosa4v0XVfZ3swtcR0n-T0RZeTb4xlqvSzlt7-zsvBk8dj8Q,,&typo=1>
>>
>>
>>
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>> --
>>
>> ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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>> President and CEO, FairVote
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