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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JEQuidam
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Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

Update from Apportionment.us: "We received word from local counsel in Mississippi this morning that the motion to convene a three-judge panel is granted!" (September 21, 2009).

See the Apportionment.us blog.

Attorneys tell me that is a big deal. Not being an attorney, I have no idea what it means, other than it's more good news!
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Re: Apportionment.us: three judge panel to be convened!

Post by Paul Taylor »

This is an interesting development, and not one that I had heard of until just now (it took me for-freaking-ever to get in gear and register, much to my chagrin!).

I would think that, in essence, this means that the process has been started of calling upon one branch to do its duty as a check on another. Of course, I am not a lawyer, myself, either. But, at the very least, if the three judge panel decides to move this on to the Supreme Court, it brings much-needed attention to the cause of improvements (i.e.: enlargement of the house) in apportionment.
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Re: Apportionment.us: three judge panel to be convened!

Post by Paul »

Is the one person, one vote principle actually in the constitution? Seems like one thing that could happen is the supreme overturns its own ruling.
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

"One man, one vote" is found nowhere in the Constitution. Traditionally, apportionment debates were considered nonjusticiable (i.e., not something that it was appropriate for the courts to involve themselves in). The problem with this extreme degree of deference is that legislatures abused it, placing political expediency over principle. Thus, for example, Congress refused to reapportion after the 14th Census. Perhaps the boldest statement of judicial non-involvement was in Colgrove v. Green, 328 U.S. 549 (1946); there, the Illinois congressional districts were challenged as malapportioned because they had not been changed since 1901, but a divided Supreme Court would not involve itself. The change began in Baker v. Carr, 369 U.S. 186 (1962), in which the Supreme Court concluded that apportionment disputes were "justiciable," that is to say, the courts were an appropriate institution in which to seek a remedy. In Baker, at issue was the Tennessee Legislature, which had refused to reapportion since 1901. Understandably, the Supreme Court was disinclined to agree that that was wrongful, but shrug in the face of it.

Although Baker is sometimes said to be a notable case, all it actually held was that these disputes are justiciable; it didn't actually determine how they should be decided. It did not take long, however, for the Supreme Court to answer that question in the "one man, one vote" fashion. In the congressional context, it dates to Wesberry v. Sanders, 376 U.S. 1 (1964). In that case, the Court held that, "construed in its historical context, the command of [U.S. Const.] Art. I, 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." By June, the Supreme Court went on to hold that in State legislative apportionments, districts must also be equally sized, this time relying on the Equal Protection Clause, U.S. CONST. amend. XIV, § 1. See Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Davis v. Mann, 377 U.S. 678 (1964); Md. Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Reynolds v. Sims, 377 U.S. 533 (1964). (The most famous case in that package is Reynolds, although in my opinion, the facts of some of the other cases, especially Lucas, are more interesting.)
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

I hope the silence my comments got are not a sign that you think I'm pulling an Octobox.
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

HouseSizeWonk wrote:"One man, one vote" is found nowhere in the Constitution.
Not ignoring you. Last fall was a busy time for me with work and finishing the pamphlet.

"One person one vote" -- at the national level -- is found within the Constitution as "Representatives ... shall be apportioned among the several states which may be included within this union, according to their respective numbers". It is not possible to implement that nationwide without having the ratio of population/representative equal among states (that's a mathematical fact, not an opinion).

With respect to the intrastate application of one person one vote, I believe that the Supreme Court found that within the 14th amendment to the Constitution. You can debate it all you want, but there is it. In any case, it seems perfectly sensible to require all the congressional districts to have the same population size relative to the U.S. House.

I do wonder if it makes sense to impose that requirement on the upper houses of state legislatures. Why not, for example, allow two Senators for each county? That would provide a more senatorial Senate, IMO. But given that reality, it seems to me that the state houses might as well become unicameral (like Nebraska), but I digress.
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Re: Apportionment.us: three judge panel to be convened!

Post by Paul »

I completely agree that the states should have two senators in each county, but the senators should be appointed by the county supervisor, which throws the unicameral argument out. It is counter-intuitive and unpopular, but the fact is that we need a proper voice for businesses in government. Here in California, businesses are leaving at alarming rates. There is no foreseeable end to our high unemployment rates. One of our biggest industries was housing, which will never come back (God willing) to employing the same percentage of people that it did previously. The conservative rural areas are basically slaves to to the liberal cities, who don't care and are rarely even aware of their concerns (see Delta smelt, which has decimated California's farming industry).

My understanding is that it wasn't until the 1960's that the Supreme Court began using the 14th amendment to enforce all provisions of the Constitution on the states. The intent of the 14th was only to give freedmen the rights to enter contracts, to due process, and to own property. If this was not the case, then why did Senator Blaine propose the Blaine amendment shortly after the 14th was ratified? The states have the power of nullification and should use this power with respect to Supreme Court rulings such as what we are discussing here. The Constitution simply does not grant the Federal government any powers of authority over state legislators.
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

Paul wrote:My understanding is that it wasn't until the 1960's that the Supreme Court began using the 14th amendment to enforce all provisions of the Constitution on the states.
This is a digression, but the spectacularly expansive use of the 14th amendment and the Commerce Clause provide another whole set of reasons why we need to create a representative Congress through representational enlargement. Otherwise, an unrestrained federal government will continue to pose a tremendous threat to our liberties. In addition, our oligarchic Congress will never propose amendments to limit those intrusions; a representative Congress will be willing to propose such amendments.
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

JEQuidam wrote:"One person one vote" -- at the national level -- is found within the Constitution as "Representatives ... shall be apportioned among the several states which may be included within this union, according to their respective numbers". It is not possible to implement that nationwide without having the ratio of population/representative equal among states (that's a mathematical fact, not an opinion).
That does not require "one-man, one-vote." It only requires that a State's share of seats in the House be the same (or as close as mathematically possible given the size of the chamber) as its share of the national population. Nothing in the quoted language requires that the districts a State is divided into be equipopulous. Traditionally, whether they were equipopulous vascillated; at times it was left to State discretion and at other times Congress (exercising its power under U.S. CONST. art. I, § 4, cl. 1) statutorily required equipopulous districts. When the 1920s apportionment gridlock arrived, the Supreme Court held that prior apportionment acts had lapsed, which killed off the then-prevailing statutory requirements of equal population and "compact" geographically contiguous districts. See Wood v. Broom, 287 U.S. 1 (1932).
JEQuidam wrote:With respect to the intrastate application of one person one vote, I believe that the Supreme Court found that within the 14th amendment to the Constitution. You can debate it all you want, but there is it. In any case, it seems perfectly sensible to require all the congressional districts to have the same population size relative to the U.S. House.

I do wonder if it makes sense to impose that requirement on the upper houses of state legislatures. Why not, for example, allow two Senators for each county? That would provide a more senatorial Senate, IMO. But given that reality, it seems to me that the state houses might as well become unicameral (like Nebraska), but I digress.
I agree it seems perfectly sensible that congressional districts be equipopulous, but I don't see how it is a constitutional imperative.

As for the state legislature side, that is because of a strained reading of the Equal Protection Clause in the 14th Amendment. The younger Justice Harlan very appropriately described it as "the constitutionally frail tautology that 'equal' means 'equal.'" Reynolds v. Sims, 377 U.S. 533, 590 (1964) (Harlan, J., dissenting). Unfortunately, Harlan hurt those of us who care about reasonableness by advocating an absolute rule of per se deference to State districting practices, even when the apportionment is a "crazy quilt," as the Alabama apportionment was called in Reynolds. See id. at 588 (Clark, J., concurring in the judgment). The Supreme Court decided 6 cases that day in 1964, and several of them did involve apportionment schemes that had no apparent underlying methodology, including the Alabama apportionment in Reynolds. Others that were fairly messy were the apportionments in Maryland, Virginia, and Delaware. See Md. Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964). On the other hand, if you want to be stunned by the utter lack of embarrassment the Court expresses in disregarding obviously functioning representational structures, peruse the opinions dealing with New York and Colorado. See WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964); Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713 (1964).

The Court has been stricter with congressional apportionments than State apportionments, though. Compare Karcher v. Daggett, 462 U.S. 725 (1983) (establishing a rule of very strict population equality between districts within a state by invalidating a New Jersey congressional apportionment plan where a perfectly average-sized district size was 526,059 and the difference between the largest and smallest districts was 3,674 when competing plans existed with a maximum deviation of only 2,375), with Mahan v. Howell, 410 U.S. 315 (1973) (distinguishing between the Equal Protection Clause’s command of equal population in state legislative districting and Article I’s requirement that Representatives be elected by “the People” to uphold a Virginia state legislative apportionment with a maximum percentage deviation from the ideal district size of 16.4%). These "one man, one vote" precedents have been extended to all levels; for example, a county cannot be governed by one representative from each municipality within the county, but instead must be governed by legislators from equipopulous districts. See Avery v. Midland County, 390 U.S. 474 (1968).
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

In addition to the 6 States that the Supreme Court decided at length in 1964, it also quickly handled (via something called a memorandum opinion) a stack of additional cases -- perhaps because they felt that there were not enough factual dissimilarities to bother writing separate opinions. Still, if there's some permutation of facts that you're wondering whether was dealt with, here's a list of the other cases:

Hill v. Davis, 378 U.S. 565 (mem.) (1964), aff’g Davis v. Synhorst, 225 F. Supp. 689 (S.D. Iowa
1964), and 217 F. Supp. 492 (S.D. Iowa 1963)
Pinney v. Butterworth, 378 U.S. 564 (mem.), aff’g Butterworth v. Dempsey, 229 F. Supp. 754 (D. Conn. 1964)
Hearne v. Smylie, 378 U.S. 563 (mem.), rev’g 225 F. Supp. 645 (D. Idaho 1964)
Marshall v. Hare, 378 U.S. 561 (mem.), rev’g 227 F. Supp. 989 (E.D. Mich. 1964)
Germano v. Kerner, 378 U.S. 559 (1964) (mem.), rev’g 220 F. Supp. 230 (N.D. Ill. 1963)
Williams v. Moss, 378 U.S. 558 (1964) (mem.), aff’g Moss v. Burkhart, 220 F. Supp. 149 (W.D. Okla. 1963)
Nolan v. Rhodes, 378 U.S. 556 (1964) (mem.), rev’g 218 F. Supp. 953 (S.D. Ohio 1963)
Meyers v. Thigpen, 378 U.S. 554 (1964) (mem.), aff’g 211 F. Supp. 826 (W.D. Wash. 1962)
Swann v. Adams, 378 U.S. 553 (1964) (mem.), rev’g Sobel v. Adams, 214 F. Supp. 811 (S.D. Fla. 1963)
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

HouseSizeWonk wrote:I agree it seems perfectly sensible that congressional districts be equipopulous, but I don't see how it is a constitutional imperative.
Maybe I miss your point, but it was made a "constitutional imperative" by the Supreme Court with its rulings on one person, one vote. Like it or not, that is now the constitutional law of the land. As a result, every federal congressional district within each state is perfectly equal in population size, or quite nearly so.

Given that, the question is: Why should the U.S. House of Representatives be exempt from one person one vote when every other representative body in the U.S. must meet that requirement? (The federal Senate being the only exception as explicitly defined by the Constitution.) Let's focus on that simple question.

I do have an additional argument for why the Constitution implicitly requires one person, one vote, but I won't get into that yet. Let's just focus on the question posed above.
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

JEQuidam wrote: Given that, the question is: Why should the U.S. House of Representatives be exempt from one person one vote when every other representative body in the U.S. must meet that requirement? (The federal Senate being the only exception as explicitly defined by the Constitution.) Let's focus on that simple question.

I do have an additional argument for why the Constitution implicitly requires one person, one vote, but I won't get into that yet. Let's just focus on the question posed above.
I was arguing that the Supreme Court's "one man, one vote" jurisprudence from the 60s is fundamentally misguided. It rests on "the constitutionally frail tautology that 'equal' means 'equal,'" as the younger Justice Harlan very appropriately noted. Moreover, I would also note that nowhere does the Constitution (textually) guarantee equal protection at the federal level; the 14th Amendment only says that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Although the Supreme Court has said that the 5th Amendment's due process clause imposes equal protection principles on the federal government in Bolling v. Sharpe, 347 U.S. 497 (1954), that was also misguided, in my view, and produced by pressure to produce the "right" outcome (desegregation of the public schools in the District of Columbia). (By "right," I don't mean to qualify in any way that desegregating the DC schools was a moral imperative; it was odious and unacceptable. But I question whether it was mandated by the Constitution, as opposed to simply being a very good idea.)

However, and more importantly in this context, I would argue that the Constitution's commitment to Congress of the discretion to balance representativeness against unwieldiness makes a congressional decision to set the chamber at a particular size as unreviewable as an equal protection challenge would be to the Senate.
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Re: Apportionment.us: three judge panel to be convened!

Post by Pseudolus »

HouseSizeWonk wrote:It rests on "the constitutionally frail tautology that 'equal' means 'equal,'" as the younger Justice Harlan very appropriately noted.
I still have no idea what Adam is talking about. Since when does 'equal' mean anything other than 'equal'?
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

Pseudolus wrote:
HouseSizeWonk wrote:It rests on "the constitutionally frail tautology that 'equal' means 'equal,'" as the younger Justice Harlan very appropriately noted.
I still have no idea what Adam is talking about. Since when does 'equal' mean anything other than 'equal'?
What is it to be treated "equally"? Consider two hypothetical situations:

State A has one chamber of its legislature apportioned on a population basis. The other chamber gives equal representation to each county in the State. However, legislation and amendments to the state constitution can be initiated by interested members of the public who get a sufficient number of petition signatures.

State B also has a bicameral legislature, but both chambers are apportioned on a population basis. Legislation and constitutional amendments cannot be initiated by the public; proposals must begin in the legislature and, after they get a big enough majority in both chambers, it is then (and only then) submitted to the general electorate.

Who is to say which system is more "democratic"? Who is to say which set of compromises strikes the appropriate balance? Certainly not the Supreme Court of the United States, IMO. By requiring that both chambers use an ironclad rule of population equality, you short-circuit any effort at experimenting with other decision-making methods/structures. In Lucas, the Supreme Court struck down on one-man, one-vote grounds, a just-ratified amendment to the Colorado Constitution which won a majority statewide (obviously) as well as a majority in every single county. Obviously there was a political deal that had been made there which was acceptable to Colorado's voters; who is the Supreme Court to interfere?

There are lots of variations on this. For example, State A's bicameral legislature is apportioned on a pure population basis, but it has a constitutional provision that reserves certain tax income for a special Fish and Wildlife Fund which will be a steady flow of constitutionally protected money to rural parts of the State. State B gives equal representation to each county in one chamber (irrespective of population), but contains no special spending provisions. Who is to say which is "equal treatment"?
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

HouseSizeWonk wrote:Who is to say which system is more "democratic"? Who is to say which set of compromises strikes the appropriate balance? Certainly not the Supreme Court of the United States, IMO.
Contrary to your opinion, though, the Supreme Court does indeed have the "say" on this and, barring an amendment to the contrary, one person, one vote is the constitutional law of the land.

Stated simply, one person, one vote requires that electoral districts be drawn to ensure that they are equally sized with respect to their total populations. The purpose of this is to ensure that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" (Wesberry v. Sanders). Prior to this ruling, significant inequities in the allocation of representation were allowed, such as a small district in a metropolitan area having its own Representative while a much more populous rural district would also only have one Representative. When this happens, a citizen living in the smaller electoral district has a greater share of representation than does someone living in the more populous district. For that reason, the one-person-one-vote requirement makes perfect sense relative to the lower house of a bicameral legislature, such as the House of Representatives.

Given that reality, there is no justification for permitting disparities in the congressional district sizes from state to state. Even the Supreme Court has stated: "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race" (Reynolds v. Sims).

Personally, I'm inclined to believe that the upper house of a state legislature should not be subject to the one-person-one-vote requirement for the same reason that the federal Senate is not. That would allow there to be, for example, two senators from each county. Of course, that is a debatable assertion and, in any case, would require a constitutional amendment to enable.
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

JEQuidam wrote:
HouseSizeWonk wrote:Who is to say which system is more "democratic"? Who is to say which set of compromises strikes the appropriate balance? Certainly not the Supreme Court of the United States, IMO.
Contrary to your opinion, though, the Supreme Court does indeed have the "say" on this and, barring an amendment to the contrary, one person, one vote is the constitutional law of the land.

Stated simply, one person, one vote requires that electoral districts be drawn to ensure that they are equally sized with respect to their total populations. The purpose of this is to ensure that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's" (Wesberry v. Sanders). Prior to this ruling, significant inequities in the allocation of representation were allowed, such as a small district in a metropolitan area having its own Representative while a much more populous rural district would also only have one Representative. When this happens, a citizen living in the smaller electoral district has a greater share of representation than does someone living in the more populous district. For that reason, the one-person-one-vote requirement makes perfect sense relative to the lower house of a bicameral legislature, such as the House of Representatives.

Given that reality, there is no justification for permitting disparities in the congressional district sizes from state to state. Even the Supreme Court has stated: "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race" (Reynolds v. Sims).

Personally, I'm inclined to believe that the upper house of a state legislature should not be subject to the one-person-one-vote requirement for the same reason that the federal Senate is not. That would allow there to be, for example, two senators from each county. Of course, that is a debatable assertion and, in any case, would require a constitutional amendment to enable.
A constitutional amendment or a recognition that the Reynolds line of cases was wrongly-decided, which is what I am arguing for. It is not unheard of for the Supreme Court to overrule itself. Reynolds and its ilk were wrongly-decided. Yet another example of Chief Justice Warren deciding that it was his job to "fix" America via judicial fiat.

And it is simply wrong to say that "there is no justification for permitting disparities in the congressional district sizes from state to state" because of the Supreme Court's intrastate districting precedents. The Supreme Court's intrastate districting cases are an application of the Equal Protection Clause of the 14th Amendment. The 14th Amendment, by its own terms, applies only to the States ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") But the inter-State disparities in congressional districts are not caused by the States; they are caused by Congress in setting the size of the chamber. Moreover, the Constitution expressly gives Congress the power to set the size of the chamber and make the value judgment of whether one or more additional seats are worth either their financial cost or the effects on cohesion and an orderly chamber. Thus, there are 2 separate reasons that the congressional decision to fix the chamber at 435 are insulated from judicial review.

I vehemently disagree with the value judgment made by Congress, but there is absolutely no doubt that it is their judgment to make. The solution isn't unwarranted judicial intervention; it is raising awareness of and convincing the electorate to make an issue of this, because if we, the People, demand it, it will happen.
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Re: Apportionment.us: three judge panel to be convened!

Post by Pseudolus »

Correct me if I'm wrong, because I'm sorting out my own logic as I go; but...
HouseSizeWonk wrote:The 14th Amendment, by its own terms, applies only to the States ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") But the inter-State disparities in congressional districts are not caused by the States; they are caused by Congress in setting the size of the chamber.
In my opinion, it doesn't matter that the disparity originates in the Congress and not in the States. According to the wording of the 14th Amendment, "no State shall...enforce any law which shall abridge the privileges or immunities of citizens of the United States"; meaning, even if Congress has the authority to write a federal law that breaks the one-man-one-vote principle, it would be unconstitutional for the States to enforce that federal law. Ergo, it seems it may be unconstitutional for the States to send Representatives to Congress in such numbers as to violate the one-man-one-vote principle in relation to the citizens of the entire (according to the wording of the 14th Amendment) United States.

What do we think of that logic?
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

HouseSizeWonk wrote:A constitutional amendment or a recognition that the Reynolds line of cases was wrongly-decided, which is what I am arguing for. It is not unheard of for the Supreme Court to overrule itself. Reynolds and its ilk were wrongly-decided. Yet another example of Chief Justice Warren deciding that it was his job to "fix" America via judicial fiat.
OK. That's not a cause that I'm interested in, primarily because I believe that they reached the correct conclusion (though perhaps not using the correct reasoning). The explanation for my belief is too long for today, but it relies upon the intent of the apportionment clause of Section 2 of the Constitution with respect to how representation and taxation were to be apportioned. Another reason is the Founders' concern about "rotten boroughs". I respect your point of view on this matter, but I accept that "one person, one vote" is a constitutional principle.
HouseSizeWonk wrote:And it is simply wrong to say that "there is no justification for permitting disparities in the congressional district sizes from state to state" because of the Supreme Court's intrastate districting precedents.
There are arguments beyond those, and as I quoted previously, "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race" (Reynolds v. Sims). There is no reason why that principle should not apply interstate as well as intrastate. There is no plausible rationale to grant citizens in some states much greater political power than the citizens of other states. Of course, we could debate this forever. As it turns out, this will likely be decided by the Supreme Court, probably later this year, as the plaintiffs are repealing Clemons et al. v. U.S. Department of Commerce et al.
HouseSizeWonk wrote:Moreover, the Constitution expressly gives Congress the power to set the size of the chamber and make the value judgment of whether one or more additional seats are worth either their financial cost or the effects on cohesion and an orderly chamber.
Really? So based on whatever their "value judgment" may be, could Congress set the total number of Representatives at 200? At 100? At 51? If not, then why not?
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

Pseudolus wrote:Correct me if I'm wrong, because I'm sorting out my own logic as I go; but...
HouseSizeWonk wrote:The 14th Amendment, by its own terms, applies only to the States ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") But the inter-State disparities in congressional districts are not caused by the States; they are caused by Congress in setting the size of the chamber.
In my opinion, it doesn't matter that the disparity originates in the Congress and not in the States. According to the wording of the 14th Amendment, "no State shall...enforce any law which shall abridge the privileges or immunities of citizens of the United States"; meaning, even if Congress has the authority to write a federal law that breaks the one-man-one-vote principle, it would be unconstitutional for the States to enforce that federal law. Ergo, it seems it may be unconstitutional for the States to send Representatives to Congress in such numbers as to violate the one-man-one-vote principle in relation to the citizens of the entire (according to the wording of the 14th Amendment) United States.

What do we think of that logic?
Actually, I think that is extraordinarily clever, but ultimately I think it would be a losing argument, both practically and doctrinally. My doctrinal argument would be that the Constitution prior to the 14th Amendment allowed government at all levels to discriminate in various ways. As the Supreme Court has said many times in struggling with implementing the Equal Protection Clause, government classifies people all the time; it's what the government is in the business of doing. Thus they struggle with interpreting the EPC in a way that accomplishes its apparent end without preventing the government from operating. But I digress: the point is, the pre-14th Constitution didn't comment on this and apparently considered it unremarkable. However, after slavery reached the political crisis status and eventually sparked a civil war, it was the consensus of Congress (and the States, sort-of) that the States had done a poor job of exercising this discretion, and so their ability to do so would be substantially narrowed (the 14th Amendment). But the 14th Amendment does not necessarily call into question the general notion of government discrimination, and apparently reflects a national consensus that the federal government could be trusted with that discretion in a way that the possibly more narrow-minded State governments could not. Thus, in a sense, when the federal government discriminates between people, we're just going to say that by definition it isn't, or it isn't in a way that is actionable, because it is trusted to discriminate wisely; only the States are not, and the EPC is then no obstacle to States conforming with the apportionment they've been assigned.

There's also an argument that, when the States draw up districts and so forth, they aren't enforcing the federal law so much as complying with it. Moreover, whether you could characterize it as enforcing or complying with the federal law, such an interpretation would put the States in a position to be independent arbiters of the constitutionality of congressional action, which has (rightly) been repeatedly and routinely denied by the Supreme Court and in this case would pretty clearly be in violation of the Supremacy Clause.

But that's a pretty clever argument nonetheless. Impressive.
HouseSizeWonk
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

JEQuidam wrote:
HouseSizeWonk wrote:A constitutional amendment or a recognition that the Reynolds line of cases was wrongly-decided, which is what I am arguing for. It is not unheard of for the Supreme Court to overrule itself. Reynolds and its ilk were wrongly-decided. Yet another example of Chief Justice Warren deciding that it was his job to "fix" America via judicial fiat.
OK. That's not a cause that I'm interested in, primarily because I believe that they reached the correct conclusion (though perhaps not using the correct reasoning). The explanation for my belief is too long for today, but it relies upon the intent of the apportionment clause of Section 2 of the Constitution with respect to how representation and taxation were to be apportioned. Another reason is the Founders' concern about "rotten boroughs". I respect your point of view on this matter, but I accept that "one person, one vote" is a constitutional principle.
HouseSizeWonk wrote:And it is simply wrong to say that "there is no justification for permitting disparities in the congressional district sizes from state to state" because of the Supreme Court's intrastate districting precedents.
There are arguments beyond those, and as I quoted previously, "Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race" (Reynolds v. Sims). There is no reason why that principle should not apply interstate as well as intrastate. There is no plausible rationale to grant citizens in some states much greater political power than the citizens of other states. Of course, we could debate this forever. As it turns out, this will likely be decided by the Supreme Court, probably later this year, as the plaintiffs are repealing Clemons et al. v. U.S. Department of Commerce et al.
HouseSizeWonk wrote:Moreover, the Constitution expressly gives Congress the power to set the size of the chamber and make the value judgment of whether one or more additional seats are worth either their financial cost or the effects on cohesion and an orderly chamber.
Really? So based on whatever their "value judgment" may be, could Congress set the total number of Representatives at 200? At 100? At 51? If not, then why not?
I agree that "one man, one vote" is the law of the land, but it is the law of the land because of the Equal Protection Clause, which I am arguing does not properly apply against the federal government. If it does not properly apply against the federal government, then one man, one vote doesn't, either. And even if the EPC did, given that the Constitution specifically commits to Congress the discretion to determine the size of the chamber, there is reason to believe that that decision would be roped off as something that the "equality" mandate did not apply to. (Have we somehow eliminated the Senate via a sub silentio amendment to the Constitution?)

And I would disagree that there's no plausible rationale: the plausible rationale is cost and feasibility. In order to give everybody an equally-sized district, you'd have to substantially increase the size of the chamber. Congress has made a value judgment that the value of the increased representativeness of the chamber is outweighed by the cost of the salaries and cacophony. I disagree, but I don't doubt it's their decision to make.

As for your hypotheticals, yes, I would say that the minimum size of the House would have to be 51, and in fact there is the occasional law review article on this topic. The consensus is clearly that Congress can pick any number it wants above the minimum, but the debate is whether the minimum is 50 or 51. Most of the stuff I've seen written on this seem to take the position that, because the House is to be apportioned "according to their respective Numbers" (or something like that; wording and capitalization may be off, I don't have the text in front of me), there would have to be at least one seat that would be apportioned on a population basis after every State got its 1 minimum.
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JEQuidam
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Re: Apportionment.us: three judge panel to be convened!

Post by JEQuidam »

Adam, I'll reply to some of your last post when time permits. In general, I'm not sure where you are coming from. A few of your arguments strike me as so specious that I don't know if you're opposing representational enlargement, or if you're simply playing devil's advocate. (Forgive me if you already made your position clear elsewhere in a previous post.) Please tell me what you believe is the appropriate number of federal legislators to represent 300,000,000+ Americans in the US House.
HouseSizeWonk
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Re: Apportionment.us: three judge panel to be convened!

Post by HouseSizeWonk »

JEQuidam wrote:Adam, I'll reply to some of your last post when time permits. In general, I'm not sure where you are coming from. A few of your arguments strike me as so specious that I don't know if you're opposing representational enlargement, or if you're simply playing devil's advocate. (Forgive me if you already made your position clear elsewhere in a previous post.) Please tell me what you believe is the appropriate number of federal legislators to represent 300,000,000+ Americans in the US House.
I don't think, without experimentation, we can know. For now, I would like to implement the Wyoming Rule, where the national ratio of seats to population would be equal to the population of the smallest unit entitled to a seat in the chamber. Thus, since the 2000, it would have been 1:495,304 (or the apportionment population of Wyoming, the smallest State). That's 568 (or 569 if you want to round up). I'd give that a try for starters and see how it works for a while. There would be a number of challenges to address. For example, assuming that the chamber as a whole could absorb the additional members (floor debate is not something that they do much of), what about the committee structure? If every member expects to sit on one committee and subcommittee, then we will likely have to pare the jurisdiction of each of the committees and subcommittees down pretty narrowly, or else you'll have committees with dozens of people sitting on them. Perhaps we'll have to dispense with the notion that every member sits on a committee? But that would definitely be a new practice norm that we'd have to experiment with and get people used to the idea of.
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