Is the Present House Apportionment Unconstitutional?

I’m going to begin a series of posts about my next project, which will examine the Reapportionment Act of 1929; a critically important statute that fixes the size of the House of Representatives at 435 and delegates the reapportionment power to the Department of Commerce.

My first comment on this deals with the problematic relationship between the 1929 Act and Section Two of the Fourteenth Amendment.  Section Two of the 14th Amendment says:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The idea behind this provision is that a state should lose representation in the House and in the Electoral College to the extent that the state wrongfully excludes people from voting.  There is a school of thought that this provision was implicitly repealed by the Fifteenth Amendment. Let’s assume for purposes of argument that this is not the case (I’ll explain why I think that assumption is warranted in another post).

The current reapportionment statutes, though, do not say anything about conducting a Section 2 review after a census.  The Commerce Department just takes the census data for each state and plugs it into a formula (last revised by Congress in 1941) to decide how many representatives each state gets.  Each state must get at least one (because Article One of the Constitution says so) and the total number must be 435 (because the 1929 Act says so). Meeting these requirements means that every state actually ends up getting some fractional amount of representatives, and the formula tells the Commerce Department when to round a fraction up or down.

Why is the current statutory scheme constitutional?  The Section Two command is not in the specific formula Congress created to apportion representatives among the several states. You might say that these laws can be read as delegating this power to the Commerce Department (I’ll take this issue up in another post), but even if that is true the Department did not conduct such a review after the last census, nor have they ever done one as far as I can tell.

Thus, I submit that the current apportionment of Representatives in the House (and the allocation of votes in the Electoral College) violates Section Two of the Fourteenth Amendment by ignoring it. Congress or the Commerce Department could easily fix this problem, but I’ll get to that separately.

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5 Responses

  1. Mark says:

    Look up 30k1 on YouTube. It’s a silly web series but it has this premise

  2. Brett Bellmore says:

    I’m with you on the not implicitly repealed thing, (Implicitly amended to cover women denied the vote, though.) but my depleted caffeine stream may be missing your larger point.

    Is it that the formula has no provision for inhabitants being denied the vote? I think that’s probably because it is thought inapplicable to the present situation.

  3. Gerard Magliocca says:

    I think I want to say that Section Two imposes some obligation on Congress or its designee to at least look at this issue before doing the reapportionment. But I’m still working through that.

  4. Mike Stern says:

    When we were looking at this act (in connection with the Census case), it seemed to me there was a question about the constitutionality of Congress delegating this function to the executive branch at all. I think that issue was debated in Congress at the time, though I can’t recall any specifics at this point.

  5. Joe says:

    The reach of the section is limited (a penalty, not a general ban) and broad (if the right to vote is denied to barbers, to take a silly example, it kicks in), so do not feel the 15A repealed it. I realize this will be covered more later.

    The clause has had limited interpretation but there was (fwiw really) a lower court case in the 1940s, as I recall, that determined that the provision is not self-executing. Congress has to pass on the point first. But, it is unclear to me this would require a “review” each time a census occurs. How the provision should be enforced is unclear.

    I’m quite open to the idea that provision provides a duty that isn’t being properly enforced especially with the breadth of “in any way abridged” and voting rights too.