Discuss how we can hasten progress towards enlarging representation. There are two primary components to this: 1) educating others in order to gain the necessary public support; and, 2) ensuring implementation via a constitutional amendment or other legal means.
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Joined: Tue Jun 30, 2009 3:17 pm
First Name: DFrank

Article Four Section 3 and Apportionment

Post by somesavvysooner »

A Commentary on the Apportionment Suit to Enlarge the Size of the US House of Representatives:
Clemons v U.S. Department of Commerce, 3:09-cv-104. in Ballot Access News.
Response by D. Frank Robinson on the end discussing the applicability of Article Four Sec. 3. to Apportionment

Department of Commerce v. Montana might appear to suggest that there is less than zero chance of the new lawsuit succeeding, but perhaps not.
Following the 1990 Census, Montana lost its 2nd representative and sued in federal court. A 3-judge panel found that the particular apportionment scheme dictated by Congress violated one man, one vote provisions of the US Constitution because it did not minimize deviation in population between congressional districts in different States.
The Supreme Court overturned that decision, but only after rejecting the US argument that the matter was strictly a political matter, and not subject to the type of judicial review set forth in the state reapportionment cases beginning with Baker v Carr.
But the court determined that there were several reasonable ways of measuring district equality (eg population per representative; representative per person, etc.), and that Congress was within its authority to choose the method that it has.
But while Congress is constrained by the requirement that each State have one representative, and districts may not cross state lines, the only constraint on the size of the House is that there cannot be more than one representative per 30,000 (about 10,000 representatives based on the current population). There is a pending amendment that would increase this to 50,000 (about 6000 representatives) but so far few legislatures have ratified it.
So the new lawsuit could be successful if the Supreme Court found that Congress had arbitrarily limited the size of the House such that its chosen measure of population equality can not succeed in providing a reasonable level of voter equality.
Jim Riley Says:
September 19th, 2009 at 8:00 pm
The inequality targeted in the lawsuit has almost nothing to do with the increase in population. For example, if the proposed population equality standards are applied to the 1910 Census when the size of the House of Representatives was first set at 435 members (Arizona and New Mexico did not accede to the Union until 1912, but the apportionment bill anticipated this and apportioned 433 representative among the other 46 States with Arizona and New Mexico to have one each if and when they achieved Statehood), and the US population was only 92 million, then 2674 members would have been required to provide the same measure of equality that a mere 1761 members could provide in 2000.
The deviation of an individual State’s deviation from the ideal varies as the number of representatives increases. California which claimed the 434th representative as its 53rd, has districts that are slightly more than 1% smaller than the ideal for the country. If the number of representatives was increased to 439, its districts would be close to the ideal; and to 443 almost 1% larger than the ideal. California would gain the 444th representative, its 54 districts would be about 1% smaller than the ideal and the cycle would repeat.
The amount of deviation is much greater for States with few representatives. For example, Montana’s lone representative has 40% more constituents than the ideal. But if the House were expanded to 441 members, Montana would gain a 2nd representative and the two districts would each have about 29% fewer constituents than the national average. Increase the House to 622, and Montana would still have two representatives, but now the districts would be almost identical to the ideal size. Increase the House to 759 representatives, and Montanans would be complaining that their two districts were more than 22% larger than the national average, and 50% larger than Vermonts.
Thus the deviation curve for each State is a sawtooth, with a period that is inversely proportional to the State’s share of the national population. Virginia with about 1/40 of the total population gets one additional representative roughly every 40 extra for the USA.
With the different frequencies among the States it is possible for the deviation curves to be in sync at certain points and this is what happens at 1761 representatives under the lawsuit’s Plan A. Several small States have an almost ideal apportionment at that point: Alaska (entitled to 3.94, but with 4 actual); Delaware (4.91, 5); Idaho (8.12, 8); Maine (8.00, 8); and Wyoming (3.10, 3). These States have small deviations at that point.
Several other small States would be modestly overrepresented at that point: North Dakota (4.83, 5); Hawaii (7.61, 8); Montana (5.66, 6); Rhode Island (6.57, 7); South Dakota (4.74, 5); New Hampshire (7.75, 8); Vermont (3.80, 4).
The most underrepresented State is New Mexico (11.41, 11). Because of its somewhat large number of representatives, its districts would be only 3.7% larger than the ideal. The total difference in deviation between the most underrepresented State and the least underrepresented State for a 1761 member Congress based on the 2000 Census dips below 10% at that point (an asymmetric +3.7% for New Mexico, and -6.2% for Rhode Island).
It is apparently this quality that causes the authors of the lawsuit to recommend Plan A with its 1761 representatives (where California would have 236 representatives, and Wyoming would have 3). Incidentally, this would result in Texas House districts and US House Districts in Texas being almost the same size.
Increasing the number of representatives further would not necessarily improve equality. Increasing the House to 1960 members from 1761 would result in the deviation between the most underrepresented and the most overrepresented States to balloon from under 10% to over 25%. And a number that worked one decade may not work at all the next. It is this fact that may cause the lawsuit’s undoing. If the size of the House varies by several 100 from decade to decade with States losing or gaining dozens of representatives, it is almost capricious.
On the other hand why stop at 1761? Why not go to Plan C with 7485 representatives? With less than 3% difference between Vermont’s 14 congressional districts and Alaska’s 17, it is close to an ideal solution to problem of one man, one vote.
The lawsuit notes that the courts have established a safe harbor of 10% deviation between the largest and smallest district for a state legislature. But that may be only be valid when observing other neutral constraints such as respect for county lines. If another plan could produce greater equality and also observe county lines, would the original plan be constitutionally acceptable?
But most States also have constitutional constraints on the number of legislators. Congress is only required to limit the number of representatives such that there are at least 30,000 persons per representative. In 2000 this would produce an upper limit on the House of 9172 members. There is a pending constitutional amendment that would increase the 30,000 to 50,000, but very few States have ratified it, suggesting that both the Congress and the States are quite content with the idea of a House of Representatives with several 1000 members?
Jim Riley Says:
September 25th, 2009 at 3:59 pm
The “ideal” size of the House of Representatives varies from census to census; this is also true of the “good enough” Plan A promoted by the plaintiffs. This has very little to do with the overall growth in population; but is due to the relative population among the states, particularly the smaller states.
For example, imagine if the state of East Utopia has 25% more population than that of West Utopia. If West Utopia has 4 representatives and East Utopia has 5, then their district populations will be identical. But if West Utopia has 1/5 of 1% of the total USA population, then it would require around 2000 members before West Utopia could be apportioned 4 representatives.
But what about the state of Idyll that has 37% more population than West Utopia. If West Utopia has 4 representatives, and Idyll has 5, then Idyll’s districts will be 9.6% larger than those of the two Utopias. But if Idyll had a 6th representative, its districts would be 8.7% smaller. So perhaps even 2000 representative is not enough.
Or what if it is decided that 2000 members is too large. West Utopia would have 2 representative, just right for its share of the population. But would East Utopia also receive 2 representatives, each representing a district 25% larger than those in its neighbor to the west, or would it have 3 representatives, with each representing 16.7% less than the ideal?
The Constitution provides two explicit constraints on the House of Representatives. One is that each State must have at least one representative. The other is that each representative represent at least 30,000 people. This sets an upper limit on the size of the House, which increases as the total population grows.
The final constraint, that representatives be “apportioned among the several States according to their respective numbers” is less well defined. Does this simply mean that apportionment must be based on the population of the States; or does it mean that the apportionment must be in accord with the population to within a certain acceptable limit; or must it me in accord with the population to within the limits of practicability, which does not mean practical or common sense, but rather capable of being put in to practice.
Congress has chosen the first standard, by first setting the size of the House at 435 representatives, and then apportioned them as equitably as possible among the States (according to the standard of equity chosen by Congress).
The lawsuit has proposed the second standard, suggesting that the size of the largest district and smallest district in the country be within 10% of each other in population, a standard that the courts have generally found acceptable for legislative districts within a State.
But the Supreme Court has adopted the 3rd standard for congressional districts within a State. With modern census data available to the block level, it is practicable to have a maximum variation of 1 person between the largest and smallest districts.
In 1912 (based on the 1910 census, but following the the admission of New Mexico and Arizona as the 47th and 48th States, it would have been possible to have a House with 2745 members. Nevada would have been apportioned the 2746th member as its 3rd, but that would have mean that each Nevada representative would represent fewer than 30,000 people. It would have been impossible to meet the 10% deviation standard used in the lawsuit for its Plan A. The best practicable plan would have 2329 representatives, which would have meant a 11.3% difference between Nevada’s 2 districts and Wyoming’s 4 districts.
For all censuses since then, the following plans would have resulted:
1910: Max 2745; Plan A (none); Best 2329, 11.30%
1920: Max 3331; Plan A 2674; Best 2693, 8.09%
1930: Max 3905; Plan A 2545; Best 2667, 7.59%
1940: Max 4117; Plan A 2485; Best 3539, 6.51%
1950: Max 4888; Plan A 1950; Best 4733, 4.16%
1960: Max 5719; Plan A 3045; Best 5507, 4.27%
1970: Max 6598; Plan A 3156; Best 5439, 4.07%
1980: Max 7410; Plan A 2269; Best 7358, 4.14%
1990: Max 8149; Plan A 2170; Best 7054, 3.16%
2000: Max 9172; Plan A 1760; Best 8575, 2.99%
As one would expect, the maximum possible size of the House has steadily increased. While 9172 members might seem unwieldy, it could provide better representation. With one representative per 30,000 or so people, many voters would personally know their representative. The amount of staff per staff could be reduced, since there would be less need to make travel and meeting arrangements across a district that sprawled for hundred of miles; or answer constituent mail from 100s of thousands of voters in the district. The five representatives from a small city of 150,000 could share office space and clerical staff. If the meeting place of Congress would move from session to session, representatives could be housed in dormitories or barracks at decommissioned military bases, and there would be less likelihood that representatives would establish a residential base near the capital where their children grow up and attend school, while eroding the links to the home district.
In 1789, Congress proposed 12 amendments to the Constitution, and invited States to consider them collectively or individually for ratification. The last 10 were quickly ratified and have become known as the “Bill of Rights” and are now known as the 1st through 10th Amendments (eg the 2nd Amendment, was the 4th article proposed to the States). Two centuries later, ratification was completed on another of the the original 12 amendments. That amendment dealing with congressional compensation is today referred to as the 27th Amendment.
The last proposed amendment is still pending (like the 27th Amendment, there is no time limit for its ratification). It would require that there be at least 50,000 (rather than 30,000) persons per representative. Instead of a cap of 9172, there would be a cap of 5390; Wyoming would be limited to 9 rather than 16 representatives.
But if the States appear not even willing to impose a limit of 9 representatives on Wyoming, why should the courts accept the Plaintiff’s Plan A which only provides 3 representatives to the Equality State, and would mean congressional districts of over 165,000 persons for Wyoming and New Mexico, but less than 150,000 for Rhode Island? All States are equal, but some are more equal than others???
Besides not providing the greatest amount of equality practicable, the plaintiff’s Plan A would result in an erratic and variable size to the House.
If the present lawsuit had been filed in 1959, its Plan A would have provided for a House of 1950 members (a total coincidence that this apportionment would have been based on the 1950 Census). If the courts accepted the 10% (in)equality standard, then following the 1960 Census, a House of 3045 members would have been needed, an increase of 56%, while the US population only increased by 18.5%. A small increase in the size of the House would have been needed in 1970, but then there would be declines for 3 straight reapportionment cycles.
While the population was increasing by 38.4%, the size of the House would have decline by 55.8%. The number of persons per representative would have more than doubled from about 73,000 to about 160,000.
While Congress fixed the size of the House at 435 following the 1910 Census, the plaintiffs Plan A criteria would have meant a much larger House initially, but that would have declined modestly for 30 years, followed by a large decline in 1950, but then a big jump in 1960. Since 1970, the House would have declined in size for 3 decades. While the population would have tripled over a century, the size of the House would have decreased under the plaintiff’s Plan A standard of equality.
And lest anyone expect that the trend continue, an apportionment based on 2008 Census Bureau estimates would require a House of 2976 members to ensure that the maximum deviation in average district population between any two States was less than 10%. This is 69% more than in 2008.

Response by D. Frank Robinson
A discussion of Article Four, Section 3 and Apportionment

It should have been rather easy for the drafters of the U.S. Constitution to anticipate that the populations of the states would not grow uniformly. I was easy enough for them to exclude Native American Indians from being counted and taxed because they may well have expected that population to be eradicated or assimilated within a few generations. But perhaps they did leave a solution right under our noses.

What Mr. Riley's discussion does not address in his able analysis is the provision Section 3 or Article Four: New states may be admitted by the Congress in this Union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state form by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

As Mr. Riley demonstrates the 'paradoxes' arising from trying to apply the doctrine of one person, one vote across state lines with a perpetually fixed minimum number of states for representation in the U.S. House of Representatives appears capricious for certain values of the variables. But Article Four does offer a possible solution. The states could, with the consent of Congress, subdivide or transfer parts of their population and territory among themselves to form new states with populations apportioned to give more nearly ideal equal representation between all the states. A kind of voluntary, negotiated internal secession or de-annexation. These new states need not duplicate all of the overhead of the existing states. They could by 'compact' share functions, services and revenues. Only few essential officers (governor, legislators, Supreme Court justices. Etc.) are needed for a state to discharge its obligations under the U.S. Constitutions.

This may not appear an elegant solution to the apportionment conundrum but I argue that it is constitutionally permissible.
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Re: Article Four Section 3 and Apportionment

Post by TheTrucker »

But, but, but, but. It was designed to be "the people's house". There is no connection between the state legislatures and the congressional representatives. NONE! State government is completely isolated from the congressional representatives who represent a gaggle of people that just happen to be located in some particular state. While the state legislatures currently draw the district boundaries in an effort to ensconce a particular political party this is not an inherent proposition of the US Constitution or the original intent. If I were master of the universe I would set the membership of the House to one and one half times the cube root of the population and draw the district boundaries based on population beginning in the northwest corner of the nation and proceeding diagonally to the southeast corner. The representatives would be apportioned among the states according to their number and some districts would include persons from more than one state. All done, thank you.
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