Lawsuit Challenges 435-Seat Limit in House

By USA Today, USA Today - December 13, 2010

That's resulted in growing disparities between the largest congressional district and the smallest. When the U.S. Census Bureau releases state-by-state population numbers this month, it's likely that Montana's lone congressional district will have about 450,000 more people in it than that of its Wyoming neighbor.

The U.S. Supreme Court could decide as soon as today if justices will hear a case on whether those disparities violate the principle of "one man, one vote." Justices were scheduled to discuss the case behind closed doors Friday.

The lawsuit, Clemons v. U.S. Department of Commerce, seeks a court order to force Congress to add more members so that the sizes of congressional districts would be more equal.

Last July, in a decision that quoted liberally from the Founding Fathers, a special three-judge panel ruled against changing the current system. "We see no reason to believe that the Constitution as originally understood or long applied imposes the requirements of close equality among districts in different states," it ruled.

The lawsuit was the brainchild of Californian Scott Scharpen, and was brought by Virginia lawyer Michael Farris. Both are self-described small-government conservatives. But it's not about partisan politics, they say.

"Representation was the core tenet of our country," says Scharpen, founder of the group "Representation is everything. And right now, the representation is severely unequal."

Frozen at 435 for past century

Some political scientists see other benefits to a bigger House. It would put members closer to constituents and provide more opportunities for women and minorities to get elected, says Brian Frederick of Bridgewater State University in Massachusetts, author of Congressional Representation and Constituents: The Case for Increasing the House of Representatives.

More members would make it unnecessary for states like Ohio, Michigan and Illinois to lose seats in Congress — which is likely to happen in 2012, he says.

Under the Constitution, the Census Bureau takes a count of the population every 10 years. Those numbers are used first to apportion House seats to states, and then to draw district lines. Because the number of seats is fixed at 435, fast-growing states gain seats at the expense of slower-growing states.

The average congressional district had 646,947 people in 2000 — a number expected to exceed 700,000 next year. The Constitution says no district can have fewer than 30,000 people — so there could theoretically be as many as 10,000 representatives.

A bigger House also would impact the Electoral College, which elects the president. Because each state gets a vote equal to the number of senators and representatives, a smaller House gives small states more clout.

"It throws the Electoral College into a great imbalance, and it's going to get worse and worse," says Ann Lousin of the John Marshall Law School in Chicago.

With her sister, mathematician Leona Mirza, Lousin proposes a system that would use the population of the smallest state as the average district size, resulting in more than 600 seats.

If her proposal had been in effect in 2000, the electoral vote would have mirrored the popular vote. Because he won most of the more populous states, Democrat Al Gore would have won the presidency, even without Florida.

Court case a 'dark horse'

Congress used to have these debates every 10 years.

After every Census from 1790 to 1910, Congress voted to change the size of the House. But in 1920, Congress reached a stalemate as immigration fueled a population boom in northern industrial states.

Congress failed to reapportion seats, and in 1931, effectively de-politicized the process by putting it on autopilot. The last time Congress even held hearings was 50 years ago.

"It's institutional inertia," Frederick says. "It's unlikely to happen anytime soon. The forces against are so powerful."

Surveys he has conducted show more than 60% of Americans favor keeping the House at 435 members. That could change as districts approach a million people later this century, he says.

Rep. Alcee Hastings, D-Fla., has introduced a bill that would create a commission to look at the size of the House and representation for the District of Columbia and U.S. territories. His only co-sponsors are territorial delegates.

In 1995, Rep. Paul McHale, D-Pa., proposed reducing the size of the House to 295 members. That idea also got no support.

"I never expected it to pass," the former congressman says now. "I wanted to get people thinking, not voting."

McHale says he found the quality of legislating better when he was in the Pennsylvania General Assembly, which has 253 members and is the second-largest state legislature in the country.

"It's difficult for members to even know each other, let alone develop the same kind of non-partisan collegiality I found in the Pennsylvania House," he says.

Scharpen admits the court case is a "dark horse." And unless the Supreme Court acts, it's unlikely the new GOP-led House will be the first to increase its size in a century.

"There's been no talk on this at all," says Brendan Buck, a spokesman for the House GOP caucus's transition team.

Districts more populous

Under the Constitution, seats in the House of Representatives are reapportioned to states every 10 years according to their Census population. Because Congress hasn't increased the number of representatives in 100 years, there is now one House member for every 700,000 Americans.

1 – estimate

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