[EL] after 1920 census, there was no reapportionment for US House

Fri Aug 16 10:02:28 PDT 2019

Couldn’t the U.S. House adopt a resolution (or take other action) in January, 2021 directing the Clerk of the House not to inform the states of the new apportionment?
Following here is the language of U.S. Code, Title 2 (see: https://www.law.cornell.edu/uscode/text/2/2a [https://www.law.cornell.edu/uscode/text/2/2a] )
"(a) On the first day [https://www.law.cornell.edu/uscode/text/2/2a] , or within one week thereafter, of the first regular session of the Eighty-second Congress and of each fifth Congress thereafter, the President shall transmit to the Congress a statement showing the whole number of persons in each State, [https://www.law.cornell.edu/uscode/text/2/2a] excluding Indians not taxed, as ascertained under the seventeenth and each subsequent decennial census of the population, and the number of Representatives to which each State [https://www.law.cornell.edu/uscode/text/2/2a] would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State [https://www.law.cornell.edu/uscode/text/2/2a] to receive less than one Member [https://www.law.cornell.edu/uscode/text/2/2a]
(b) Each State [https://www.law.cornell.edu/uscode/text/2/2a] shall be entitled, in the Eighty-third Congress and in each Congress thereafter until the taking effect of a reapportionment under this section or subsequent statute, to the number of Representatives shown in the statement required by subsection (a) of this section, no State [https://www.law.cornell.edu/uscode/text/2/2a] to receive less than one Member. [https://www.law.cornell.edu/uscode/text/2/2a] It shall be the duty of the Clerk of the House of Representatives, within fifteen calendar days [https://www.law.cornell.edu/uscode/text/2/2a] after the receipt of such statement, to send to the executive of each State [https://www.law.cornell.edu/uscode/text/2/2a] a certificate of the number of Representatives to which such State [https://www.law.cornell.edu/uscode/text/2/2a] is entitled under this section. In case of a vacancy in the office of Clerk, or of his absence or inability to discharge this duty, then such duty shall devolve upon the Sergeant at Arms [https://www.law.cornell.edu/uscode/text/2/2a] of the House of Representatives.
(c)Until a State [https://www.law.cornell.edu/uscode/text/2/2a] is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State [https://www.law.cornell.edu/uscode/text/2/2a] is entitled under such apportionment shall be elected in the following manner:
(1) If there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State [https://www.law.cornell.edu/uscode/text/2/2a] , and if any of them are elected from the State [https://www.law.cornell.edu/uscode/text/2/2a] at large they shall continue to be so elected;
(2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State [https://www.law.cornell.edu/uscode/text/2/2a] at large and the other Representatives from the districts then prescribed by the law of such State [https://www.law.cornell.edu/uscode/text/2/2a] ;
(3) if there is a decrease in the number of Representatives but the number of districts in such State [https://www.law.cornell.edu/uscode/text/2/2a] is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State [https://www.law.cornell.edu/uscode/text/2/2a] ;
(4) if there is a decrease in the number of Representatives but the number of districts in such State [https://www.law.cornell.edu/uscode/text/2/2a] is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State [https://www.law.cornell.edu/uscode/text/2/2a] at large and the other Representatives from the districts then prescribed by the law of such State [https://www.law.cornell.edu/uscode/text/2/2a] ; or
(5) if there is a decrease in the number of Representatives and the number of districts in such State [https://www.law.cornell.edu/uscode/text/2/2a] exceeds such decreased number of Representatives, they shall be elected from the State [https://www.law.cornell.edu/uscode/text/2/2a] at large.
(June 18, 1929, ch. 28, § 22, 46 Stat. 26 [https://www.law.cornell.edu/rio/citation/46_Stat._26] ; Apr. 25, 1940, ch. 152, 54 Stat. 162 [https://www.law.cornell.edu/rio/citation/54_Stat._162] ; Nov. 15, 1941, ch. 470, § 1, 55 Stat. 761 [https://www.law.cornell.edu/rio/citation/55_Stat._761] ; Pub. L. 104–186, title II, § 201 [https://www.law.cornell.edu/rio/citation/Pub._L._104-186] , Aug. 20, 1996, 110 Stat. 1724 [https://www.law.cornell.edu/rio/citation/110_Stat._1724] .)
Thanks for any additional insights.
Jeff Wice Fellow SUNY Buffalo Law School
via Newton Mail [https://cloudmagic.com/k/d/mailapp?ct=dx&cv=10.0.18&pv=10.14.6&source=email_footer_2]
On Fri, Aug 16, 2019 at 12:27 PM, Pamela S Karlan <pkarlan at stanford.edu> wrote:
I cite a bunch of stuff about the aftermath of 1920 and the 1929 permanent reapportionment bill in Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote, 59 Wm. & Mary L. Rev. 1921 (2018). Folks might find the Illinois history I discuss there especially interesting.

Pam Karlan Stanford Law School karlan at stanford.edu [karlan at stanford.edu] 650.725.4851
On Aug 16, 2019, at 12:19 PM, Rick Hasen < rhasen at law.uci.edu [rhasen at law.uci.edu] > wrote:

Someone forwarded me this case, from 1921

50 F.2d 685

Circuit Court of Appeals, Seventh Circuit.

KEOGH

v.

NEELY.

No. 4494.

|

June 11, 1931.

Opinion

ALSCHULER, Circuit Judge.

The appeal is from a decree of the District Court dismissing appellant’s bill upon appellee’s motion. The bill charges in substance:

(a) Section 6 of article 4 of the Constitution of the States of Illinois provides that the General Assembly shall apportion the state to make such apportionment, but that the Legislature has failed in such duty, and has not reapportioned the state since the year 1901, since which time the change in population has been such that the last apportionment has become unjust and unequal, and deprives the inhabitants of certain parts of the state of equal representation in the General Assembly.

(b) That section 4 of article 4 of the Constitution of the United States [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOARTIVS4&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] provides that the United States shall guarantee to every state in this Union a republican form of government, and that the failure of the Legislature of the state to reapportion the state denies to the inhabitants of illinois a republican form of government.

(c) That the ordinance of 1787 provides that the inhabitants of the territory shall receive the benefit of proportionate representation in the Legislature.

(d) That the Illinois Legislature has for more than twenty years refused, and still refuses, to justly reapportion the state, and that thereby certain districts of the state, and the inhabitants thereof, are without equal and just representation.

(e) That the government of the United States, under section 4 article 4 of the United States Constitution [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOARTIVS4&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] , is obligated to enforce section 6 of article 4 of the Constitution of Illinois, requiring apportionment every ten years; that the United States has failed during the past twenty years to observe this mandate and to secure equal representation and a republican form of government for the inhabitants of the state of Illinois; and that because of such failure the government of the United States has ceased to have authority under the laws of the United States to levy or collect taxes within the state of Illinois from the citizens thereof.

(f) That appellee is the United States collector of internal revenue for the First district of Illinois.

(g) That the United States Revenue Act of 1928 is unconstitutional, and in direct violation of art. 5 of the amendments to the United States Constitution [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOARTV&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] , which provides that property shall not be taken without due process of law or without just compensation.

(h) That appellant is a citizen of Illinois residing is said First district, and owns property for the taxable year 1929 in excess of $5,000, but that he has not filed any federal income tax return nor paid any tax for that year, and refuses so to do.

(i) That the appellee threatens to compel appellant to file federal income tax return for the year 1929 and pay the income taxes thereon, and, unless restrained by injunction, will levy upon and sell appellant’s property to satisfy such income tax.

The bill asks preliminary and perpetual injunction restraining appellee from taking any steps to enforce collection from appellant of any federal income tax under the Revenue Act of 1928 ( <image001.png> [https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=NA30ABFE0F64011E7B2EBA847156DAAF7&transitionType=InlineKeyCiteFlags&originationContext=docHeaderFlag&Rank=0&contextData=(sc.History*oc.Keycite)] 26 USCA § 2001 et seq. [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=26USCAS2001&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] )

[1] [applewebdata://8C5F3C2F-331F-4F0E-92AC-9F59D9373598#co_anchor_F11931126016_1] In support of the claim of unconstitutionality of the Revenue Act of 1928 it is contended in appellant’s main brief that Amendment 16 to the federal Constitution [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOAMENDXVI&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] , authorizing the levying of taxes on incomes, was never lawfully enacted, as provided in article 5 of the federal Constitution [http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite=USCOARTV&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] , in that it was ratified by the Legislatures of the several states, and not by conventions of the people of the states. <image002.png> [https://1.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=Ia23cdc16547311d9a99c85a9e6023ffa&transitionType=InlineKeyCiteFlags&originationContext=docHeaderFlag&Rank=0&contextData=(sc.History*oc.Keycite)] United States v. Sprague et al. (D.C.) 44 F.(2d) 967, [http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1931127697&pubNum=350&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] is relied on. Since the filing of appellant’s brief the order of the District Court in the Sprague Case was reversed by the Supreme Court in 283 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640, [http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1931124008&pubNum=708&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] 71 L.R.A. 1381, 71 L.R.A. 1381, [http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=473&cite=71LRA1381&originatingDoc=I344660a2547311d9a99c85a9e6023ffa&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.History*oc.Keycite)] the court holding lawful ratification by the Legislatures of a constitutional amendment. Upon oral argument appellant vigorously contended that the decision of the Supreme Court is unsound and should not be followed by us; but we are not convinced of our liberty to disregard it.

[2] To the proposition that republican government in Illinois has failed because of the omission of the Illinois General Assembly to redistrict the state as charged in the bill, we cannot yield assent.

[3] The proposition that, because the federal government has not compelled the Illinois Legislature to redistrict the state into senatorial districts, it has failed to carry out the constitutional guaranty to the states of republican form of government, and that thereby *687 the citizens of Illinois are relieved from paying federal income taxes, is entirely without merit.

Even though the federal government were constitutionally empowered and required to compel the state to obey the state’s constitutional requirement of decennial reapportionment for legislative purposes, the failure of the federal government to conform would not relieve the citizens of the state from the duties and the burdens imposed upon them by the federal Constitution. If this were not so, the citizen, while still remaining in the country, might then with impunity set at naught the federal Constitution and laws, and thus virtually secede from the government. This can in no event be sanctioned, especially since the stirring events of the years 1861 to 1865.

[4] Courts have no power to stay the hand of the federal government in the collection of its constitutionally authorized taxes, upon the ground alone that the government has itself been derelict in its observance of other provisions of the federal Constitution, and particularly not when such other provisions in no manner affect the taxes in issue.

We are satisfied that the bill states no cause of action, and was properly dismissed. The decree is affirmed.

All Citations

From: Law-election < law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] > on behalf of Charles Stewart III < cstewart at mit.edu [cstewart at mit.edu] >
Date: Wednesday, August 14, 2019 at 2:13 PM
To: Richard Winger < richardwinger at yahoo.com [richardwinger at yahoo.com] >, Election Law Listserv < law-election at uci.edu [law-election at uci.edu] >
Subject: Re: [EL] after 1920 census, there was no reapportionment for US House

I’m sure the actual lawyers on the list will give the complete answer, but I note that in the 1929 HLR article on the subject by Zechariah Chafee, he concludes there was no judicial remedy to congressional inaction. Because he cites no actual cases having been brought, I suspect there were none. (That was a different era…) He also notes, in later writing, that the apportionment act subsequently passed automatically apportioned upon the certification of the population numbers by the Census Bureau, so that the impasse would not occur again. So, the likely action will be in a certain challenge to the certified numbers, not failure of Congress to pass legislation.

-cs

As an aside, many years ago, when I was reading through the unpublished minutes of the House Republican Caucus, I found a petition to call a meeting of the caucus, to have the party invoke Article 14, section 2 and reduce the apportionment of southern states, as a part of the apportionment act that was then under consideration. The leadership spent considerable energy making sure the caucus meeting wasn’t called. The standard story about the 1921 failure to reapportion was due to the rise of urban populations. Has anyone written about the role that agitation over Jim Crow may have played in producing congressional gridlock?

-------------------------------------------------------------------------------------------------------------

Charles Stewart III

Kenan Sahin Distinguished Professor of Political Science

The Massachusetts Institute of Technology

Cambridge, Massachusetts 02139

617-253-3127

cstewart at mit.edu [cstewart at mit.edu]

From: Law-election [ mailto:law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] ] On Behalf Of Richard Winger
Sent: Wednesday, August 14, 2019 2:58 PM
To: Election Law Listserv < law-election at uci.edu [law-election at uci.edu] >
Subject: [EL] after 1920 census, there was no reapportionment for US House

I hope someone is informed about the precedent set after the 1920 census. Congress simply neglected to do any reapportionment. So the number of seats for each state remained the same for 20 years, from 1911 thru 1931. I have often wondered why no state that had gained a lot of people didn't sue. Maybe such a lawsuit did happen, but I have never seen any record of it.

If no one would have standing to challenge a failure to reapportion after a census, and the US Census data in 2020 is substantially flawed, maybe congress (if either house is controlled by Democrats in 2021) could just repeat what happened 100 years ago???

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu [Law-election at department-lists.uci.edu]
https://department-lists.uci.edu/mailman/listinfo/law-election [https://department-lists.uci.edu/mailman/listinfo/law-election]
_______________________________________________ Law-election mailing list Law-election at department-lists.uci.edu https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190816/5f5a14d4/attachment.html>