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

Tue Nov 6 07:18:46 PST 2018

I agree with Brad on state legislative sizes.

For the US House, I would suggest the most important work new Members could
do is in committees, no "in the whole" which rarely happens in any
meaningful way. The federal government is large, and oversight and
policymaking complex. Having more Members could result in better
functioning committees where Members would have a better chance develop
greater expertise in certain areas and have more bandwidth to do that
needed oversight and policymaking rather than cede that to the executive
branch-- especially with a return to giving committees more of a role and
especially if they are fairly elected with greater electoral incentives to
govern together.

Rob Richie

On Tue, Nov 6, 2018 at 10:08 AM Smith, Brad <BSmith at law.capital.edu> wrote:

> I'm a bit skeptical about making the U.S. House a lot bigger, but let me
> suggest in this debate that many state legislatures should consider
> increasing in size. Many feel a 435 member house is already too large to be
> an effective body, and if you think that, a 1000 member body would be,
> obviously, even less effective.
>
> But many state legislatures are quite small, especially state senates, and
> could easily expand. The California state senate is a particularly ripe
> example. I believe it has 39 members, each representing over 1 million
> people. Each member of Texas's 31 member state senate represents over
> 900,000 people.
>
> But even state houses--usually much larger--may have too few seats. A
> fairly typical example might be Arizona, which isn't a particularly large
> state in terms of population. Arizona has a 60 member state house, with
> each member representing over 100,000. 100,000 isn't bad, but it's more
> than double the original U.S. House of Representatives population per
> district. Why not a 90 member house? Is that really too unwieldy? Ohio has
> a relatively large House, with 99 members, but that's still about 120,000
> people per seat. Couldn't the state add 20 seats  without destroying the
> seat's effectiveness?
>
> *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:* Derek Muller [derek.muller at gmail.com]
> *Sent:* Tuesday, November 06, 2018 9:51 AM
> *To:* Election Law
> *Cc:* sparnell at philanthropyroundtable.org; pkarlan at stanford.edu; Rick
> Hasen; Smith, Brad
> *Subject:* Re: [EL] Supreme Court Summarily Rejects Constitutional
> Challenge to the Size of the House of Representatives
>
> Understandably, even though Congress could readily solve this problem by
> statute, Congress has been reluctant to dilute its power by increasing the
> numbers of members serving in the House. That said, the *Washington
> Monthly* piece raises an important opportunity--states could act
> unilaterally and ratify the Founding-era dormant "Congressional
> Apportionment Amendment," a la the ratification of the
> until-recently-dormant 27th Amendment, and constitutionally mandate an
> ever-larger House of 6,000+ members that grows larger each Census.
>
> Politically, however, we may not need to go that far. If states like
> California and Texas ratified the dormant Amendment (remaining well short
> of the 38 needed to ratify), perhaps it'd make Congress nervous enough
> about the possibility of its passage to inspire it to offer a more modest
> solution, like doubling the size of the House, and head off further
> ratification efforts.
>
> It's worth thinking about creatively.... Thanks for the useful replies on
> this topic!
>
> Derek
>
> Derek T. Muller
> Associate Professor of Law
> Pepperdine University School of Law
> 24255 Pacific Coast Hwy
> Malibu, CA 90263
> +1 310-506-7058 <+13105067058>
> SSRN: http://papers.ssrn.com/author=464341
> <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fpapers.ssrn.com%2fauthor%3d464341&c=E,1,clnHJ489EJk4gzoGx7m1GK0mDFFgrglmlRKp8mDm3nZTXVjXj3N92FmOwEz07VekE7lx9IgJ-eRBPQx_GF6oBv1KGtgx5Sf3B8MMRZg_W0VLUJY,&typo=1>
> Twitter: http://twitter.com/derektmuller
>
> On Mon, Nov 5, 2018 at 11:27 AM 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 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://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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