Redistricting Reform: Are We Fighting Over the Right Number of Seats? A Small Math Problem with Huge Implications

by Jacob Hurt, LWV-Fairfax Area

2020 will be a big year for the League. Protecting the Decennial Census and making sure the district lines for the 435 Representatives are drawn fairly will be a key step in reforming our Democracy. But are we fighting the right battle? Is 435 the right number of seats? What if it isn’t?

Here’s the problem: Article 1, Section 2, Clause 3 of the Constitution states that “The Number of Representatives shall not exceed one for every thirty thousand [persons]”¹.  According to the Census Bureau’s ‘Population Clock’ website, there are 327,820,150 people in the US as of May 31st, 2018². So that works out to 10,927 Representatives! But we currently have only 435 Representatives in the House. Why the mismatch? 

The Apportionment Act of 1929 capped the number of Representatives at 435³. This was a law passed by a Congress and signed by a President, however, not an Amendment – but it had the effect of changing the ratio spelled out clearly in the Constitution without amending it. Why would they do such a thing? What can we do about it now that this law – and its effects on Congress and the Electoral College – are so entrenched in our lives? And finally, can we devise a fair system going forward without throwing the whole system into chaos?

The story of how we got here spans over 230 years and touches on numerous social and political factors. In 1787, there was no requirement for single-member, contiguous, compact, equally-populated congressional districts like there is today. The makeup of the population changed significantly between 1787 and 1920 as Emancipation, Immigration, and other social factors challenged the hold on power of the wealthy, rural, white men who adopted the Constitution⁴. The winners of the 1920 elections also saw these trends and worried about their effect on the makeup of Congress. After the 1920 Census confirmed their fears, they refused to surrender to the trends and, citing a lack of room in the Capitol to expand, executed what has been called “The Silent Gerrymander” by simply leaving the House as it was in 1911 and passing laws to keep it that way⁵. 

The effect of this move on our cherished concept of “One Person, One Vote” has been imbalanced, polarization, a death-grip by a 2-party system, and numerous elections where the Electoral College winner was not the popular vote winner. The election of a President without the popular vote has led to further polarization and disenchantment with the process. Movements like the National Popular Vote Compact⁶ seek to remedy parts of this problem, but they may be fighting over the wrong number of electoral votes! Today, the Silent Gerrymander leaves us with 753,609.5 people per Representative (on average), far in excess of the 30,000 required for each Representative by the Constitution. So what can we do?

We could simply repeal this unconstitutional law. It would go a long way towards weakening the 2-party system, as more seats would open up and districts would get smaller. Having smaller districts could help them be drawn more fairly, too. But suddenly shifting to over 10,000 representatives could be chaotic. To parlay the excuse used in 1920, where could we practically fit the 11,037 Senators and Representatives so they could work as “The United States in Congress Assembled”? And how would multiple parties work in America? Could we adopt the Parliamentary system of coalition-building we see in European nations, or do we fracture even further as each new party asserts itself? How do we deal with that many Electoral Votes?

We could amend the Constitution to correct the ratio, but we face the same problems doing this as the Founders did. They actually passed an Amendment along with the Bill of Rights that would have provided for adjustments of the ratio for Apportionment, but it stops at 200 Representatives^7. What is a good ratio for us, and what is a good number of Representatives to re-adjust it at? We only know that the current numbers aren’t working, but what are the right numbers?

We could take it to the courts, but they have been, at their best, inconsistent in helping the people affected by Gerrymandering. The recent VA Supreme Court decision⁸ is just one example – there are many others. How would a legal challenge to the Permanent Apportionment Act of 1929 – on the books now for 89 years – be carried out in 2018? And would we be satisfied with a court-ordered remedy?

I don’t claim to have the answer, but I know what the answer looks like. When our districts are easier to draw and smaller in size, they are drawn more fairly, and communities are kept together. When the results of the Electoral College more closely match the popular vote, people have a reason to participate. With more seats in Congress, more individuals and views are elevated, and the focus shifts from protecting incumbents and party lines to getting work done. 

Whatever the solution (or solutions), it must address this unconstitutional limitation on representation and manage the resulting changes in Redistricting and the Electoral College. If we can overturn the Silent Gerrymander, we would go a long way towards Making Democracy Work Again.

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1. This website has anything and everything you wanted to know about the Constitution and its contents: “The Constitution of the United States of America: Analysis and Interpretation.” https://congress.gov/constitution-annotated from the Library of Congress. Any text from the Constitution I cite here came from this document, available here: “The Constitution of the United States of America: Literal Print”. https://www.congress.gov/content/conan/pdf/GPO-CONAN-2017-6.pdf. Accessed 1 June 2018.

2. The Census Bureau’s Website, as well as its Population Clock, can be found here: https://www.census.gov/popclock/. Accessed 1 June 2018.

3. The National Constitution Center is another great resource for learning more about its contents and history. This article about Apportionment history is a great place to learn how the process evolved: Maltz, Earl. “Power in Numbers: Reapportionment and the Constitution”. https://constitutioncenter.org/media/files/Spotlight_PowerInNumbers.pdf. Accessed 1 June 2018.

4. Ibid.

5. Waldman, Michael. The Fight to Vote. Simon and Schuster, 2016. This is an excellent read about the history of voting rights in America and how we got to where we are today.

6. The National Popular Vote Compact seeks to award Electoral Votes to the winner of the national popular vote. As of June 1st, 2018,12 states, consisting of 172 Electoral Votes, have entered the Compact. It becomes effective when 270 votes are covered by it. https://www.nationalpopularvote.com. Accessed 1 June 2018.

7.“Proposed Amendments Not Ratified by the States”. https://congress.gov/content/conan/pdf/GPO-CONAN-2017-8.pdf. Library of Congress. Accessed 1 June 2018.

8. Wilson, Patrick. “Virginia Supreme Court upholds 11 challenged legislative districts”. Richmond Times-Dispatch. http://www.richmond.com/news/virginia/government-politics/virginia-supreme-court-upholds-challenged-state-legislative-districts/article_d192faf3-455d-572f-8a63-5e2e13b8a71c.html. Accessed 1 June 2018.