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United States Government Files Brief in U.S. Supreme Court in Lawsuit over Size of U.S. House

Published on November 21, 2010, by in General.

On November 17, the United States government filed this brief in opposition, in Clemons v U.S. Department of Commerce, 10-291.  This is the case that says that “one person, one vote” principles require that the size of the U.S. House of Representatives be increased.  As things stand, Montana and Wyoming each have one seat, but Montana has twice as many people as Wyoming.  Thanks to Michael Warnken for the brief.  UPDATE:  here is the reply brief, which responds to the government’s arguments.

13 Responses

  1. Demo Rep

    The ratio of populations/seats will NEVER be equal for all States.

    Generally always a State near the 0.5 fraction which does NOT get the last marginal seat — method of equal proportions.


    Uniform positive definition of Elector-Voter in ALL of the U.S.A. – to get rid of the accumulated negative stuff.

    P.R. and App.V.

  2. Here are some interesting excerpts:

    “In their amended complaint, appellants “suggest”
    that the maximum variance that should be allowed between
    the largest and smallest districts should be 10%.”
    . . .
    “As appellants’ own statistics reveal,
    even if the size of the House were increased to 1760
    Members, interstate disparities in the average number
    of persons per Representative would remain at around
    10%.”
    . . .
    “Under each reapportionment, the greatest combined deviation between
    the sizes of the districts in any two States has been as follows:
    1790 64.99% 1860 67.87% 1940 82.67%
    1800 82.05% 1870 80.32% 1950 68.45%
    1810 15.44% 1880 86.93% 1960 62.97%
    1820 81.22% 1890 92.20% 1970 68.24%
    1830 55.67% 1900 121.45% 1980 57.17%
    1840 49.32% 1910 70.24% 1990 60.73%
    1850 64.17% 1930 110.30% 2000 63.38%”

    The brief also says that Congress has always been given discretion and there hasn’t been a requirement determining just how proportional the House had to be to state population. On the bright side, we use the Webster/Saint League divisors method, which is pretty proportional compared to previous methods which benefited either larger or smaller states. Of course, you need a large number of seats (as shown above, quite large) to get it to be more proportional given discrepancies between smaller states.

  3. Deemer from California

    I’ve always regarded this situation as being resolved by the United States Constitution itself. After all, it does state that every state SHALL have at least ONE seat in the House of Representatives so be inference it would seem to be logical that the State with the least population would be the divisor. Currently that is Wyoming and since its population will probably be around 490,000 a proper number of House seats would seem to be between 615 and 620 for this decade. Of course if the District of Columbia or Puerto Rico join the Union in the next 10 years that number would rise.

    As an aside, the reason the ratio is so high in 1900 and 1920 is that Nevada’s population then was WAY below 100,000 people. In 1900, it was even under the 60,000 that a Territory needed to join the Union and Congress had been entertaining discussion on returning Nevada to being a Territory. That ended with the big Tonopah-Goldfield strikes in 1905 I believe.

  4. Demo Rep

    # 3 A lot of the Western States were created by the Elephants during and after the Civil War directly to have Elephant party hack control in the gerrymander U.S.A. Senate and the gerrymander U.S.A. Electoral College.

    Worked pretty well for the Elephants until 1932 during Great Depression I.

    P.R. — Total Votes / Total Seats = Equal votes needed for each winner in legislative bodies. ALL votes count.

    Abolish the gerrymander Senate or elect it via P.R. in odd numbered years for 2 year terms.

  5. Henry Dribble

    the capping of the House was Unconstitutional to start with. It should not have been done with a Congressional law but with a Constitutional Amendment. Since it was obviously counter to the Constitution which clearly provides the formula to calculate how many Reps a state should have.

  6. Jim Riley

    #5 If this were true, why didn’t the 2nd Congress (after the 1790 Census) do it that way?

  7. Jim Riley

    #4 A few states were hurriedly pushed through at the time of the Civil War (Nevada, Kansas, and West Virginia). Colorado statehood was rejected because it did not provide Negro suffrage, and it wasn’t until 1876 that it became a State. Ironically, in 1876 it considered including female suffrage in its constitution, but was concerned that Congress would also reject that constitution. In 1876, the Colorado legislature was the last to appoint its presidential electors, which were of course crucial to the election of Hayes.

    The 1872 reapportionment bill, besides setting the uniform election date for representatives, also had a provision that would have required a state to have population equal to the divisor for one representative in order to be admitted. This was ignored in the 1889-90 expansion to include SD, ND, MT, WY, ID, and WA in the Union. Washington and the Dakotas would have qualified.

  8. Jim Riley

    #3 It is just a reasonable to interpret that as providing an exception for small-population States. Why else is the provision introduced with “but” if not to be exceptional.

    Using the population of the smallest state would not really do much for relative equality, and could result in large fluctuation in the side of the House.

  9. Jim Riley

    #2 The USA doesn’t use the arithmetic mean (Sainte Lague) divisors, but rather the geometric mean. Further if it were seeking the type of equality sought by the plaintiffs it would use the harmonic means (Dean’s method).

    With the harmonic mean, Montana’s population for one seat would rise to 50% above the average, before dropping to only 25% below for each of its two representatives. With the geometric mean it goes from +41% to -29%, and with the harmonic mean it goes from +33% to -33%. If Dean’s method were currently used, Montana would be happy, and we’d then only have to put up with the South Dakotans whining about Wyoming.

    But since the Supreme Court has already upheld the use of the geometric mean as being within the limits of Congressional discretion, the plaintiffs can’t raise the issue again. However, if the court dumped the decision back into the laps of Congress, then the plaintiffs could suggest that Congress make the change voluntarily.

    The suggested standard of 10%, does not mean that the population of each district be within the range of plus or minus 5%, but rather that the range from the largest to smallest be 10% (plus 8% to -2% would be OK).

    As it turns out, the plaintiffs example does have an unbalanced range, where most of the very smallest states are slightly overrepresented. By the time around 2000 representative are apportioned, California with around 1/8 of the population will have about 250 representatives, and its population per representative will fluctuate between about 1/5 of 1% above or below the average, so really doesn’t matter. There could even be a quota violation where California got too many or too few representatives but its districts would be well within the 1% range.

    But Wyoming with around 4 representatives is going to vary over a range a bit more than 10% above and below the ideal population (a total range over 20%). So you have to choose a range of sizes that gets Wyoming close, and then find a range where the same happens for Vermont, and North Dakota, etc., and get these all to be nearly coincident or in phase. The plaintiffs example finally gets in the overall range, when Nevada, the 16th smallest state gains its 13th representative. This shifts Nevada from 12 overpopulated districts to 13 underpopulated districts, and gets them within the 10% range for the other small states with underpopulated districts.

    But in the attempt to get more equality among the small states, you have to keep dumping more and more representatives into the large states causing the House to mushroom in size.

    And 2000 may be an anomaly in which the 10% overall deviation may be reached with so few representatives.

    But the plaintiffs simply want the Supreme Court to order Congress to actively set the size of the House after each census, so they can then spin the idea that it is somehow the growth of the population since 1910 that causes the inequality.

  10. Dave Gillespie

    The Constitution declares there is to be no more than one rep. per 30,000 people. I propose (tongue in cheek) that each district be drawn up as close to the 30,000 figure as possible. Oh, that’s right; we would then have 10,000 of those people Mark Twain loved so much serving in the U.S. House.

    Or (for real) we might, as Demo Rep suggests, really find a way of solving the problem by adopting PR.

  11. Demo Rep

    How about about 250 million U.S.A. Reps — i.e. everybody who has the Art. I, Sec. 2 qualifications but who is not a Fed/State/local officer / employee ???

    Order in the House. The chair recognizes Rep No. 200 million for a 24 hour speech.

    How many of the 435 mob even recognize each other on the D.C. streets / in bars, etc. ???

    P.R. and App.V. — each legislative body having more than about 50 folks becomes more and more mobish.

    100 percent / 50 = 2 percent of votes needed for each seat winner.

    Low tech math even for the SCOTUS math MORONS to understand ???

  12. Jim Riley

    #10 The Constitution limits the size of the House to between 50 (one per State) and about 10,000 (one per 30,000 people).

  13. Dave Gillespie

    Jim,
    I am sure it would take a constitutional amendment to provide for “equal suffrage” for states in the House, such as exists in the Senate. Therefore, your figure of 50 members or anything close to it would be unworkable, don’t your think?
    Dave

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