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

Tue Nov 6 07:20:04 PST 2018

I do not necessarily disagree with anything suggested by Prof. Muller or Smith , but there appear to be two different questions at issue. 1) What is the maximum number of members in a well-functioning legislature (or house of a legislature)? And 2) How many people can a representative fairly represent?   There may be a couple of states where those questions are answered in a way that leads to a well-functioning legislature of reps who well-represent their people.   However, in the other states, how should we balance the proper functioning of the legislature against properly sizing districts so a representative has the correct number of constituents?

-Hank

Henry L. Chambers, Jr.
Austin E. Owen Research Scholar and Professor of Law
University of Richmond School of Law
28 Westhampton Way
Richmond, Va. 23173
(804) 289-8199
hchamber at richmond.edu

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Smith, Brad
Sent: Tuesday, November 6, 2018 10:07 AM
To: Derek Muller <derek.muller at gmail.com>; Election Law <law-election at uci.edu>
Subject: Re: [EL] Supreme Court Summarily Rejects Constitutional Challenge to the Size of the House of Representatives

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

________________________________
From: Derek Muller [derek.muller at gmail.com]
Sent: Tuesday, November 06, 2018 9:51 AM
To: Election Law
Cc: sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>; pkarlan at stanford.edu<mailto: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<tel:+13105067058>
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On Mon, Nov 5, 2018 at 11:27 AM Smith, Brad <BSmith at law.capital.edu<mailto: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

________________________________
From: Law-election [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Sean Parnell [sparnell at philanthropyroundtable.org<mailto:sparnell at philanthropyroundtable.org>]
Sent: Monday, November 05, 2018 1:15 PM
To: Pamela S Karlan; Rick Hasen
Cc: 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
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<mailto: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<mailto:rhasen at law.uci.edu>>
Cc: 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

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://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>
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