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

[Pamela S Karlan]

Dear colleagues,

As I describe in the paper I mentioned last week -- Reapportionment, Nonapportionment, and Recovering Some Lost History of One-Person, One Vote, 59 Wm. & Mary L. Rev. 1921 (2018) -- there's actually a noticeable amount of litigation in state court over apportionment issues in the 1930s.  I describe the cases from Virginia, Kentucky, and Illinois.


Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan at stanford.edu

650-725-4851

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of J.H. Snider <snider at isolon.org>
Sent: Wednesday, August 14, 2019 3:37 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] after 1920 census, there was no reapportionment for US House


Along the same lines as Charles Stewart’s “different era” observation, if you look at state legislature reapportionment after the 1920 census (and, more generally, a passel of states before the 1960s reapportionment revolution), you get the same judicial result.



In another analogy that is a pet peeve of mine, Iowa circa 1920, the populace approved by an undisputed majority a constitutionally mandated periodic referendum to convene a state constitutional convention. But no one sued the state legislature when it refused to convene the convention, which would surely have dealt with legislative apportionment issues. Iowa has its next periodic constitutional convention referendum in Nov. 2020.



--J.H. Snider, Editor

The State Constitutional Convention Clearinghouse<https://concon.info/>





From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Charles H Stewart
Sent: Wednesday, August 14, 2019 5:13 PM
To: Richard Winger <richardwinger at yahoo.com>; Election Law Listserv <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<mailto:cstewart at mit.edu>



From: Law-election [mailto: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<mailto: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
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