Deschler's Precedents, Volume 2, Chapters 7 - 9 - § 1. In General; Functions of Congress and the States

[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[A. Apportionment; Voting Districts]
[§ 1. In General; Functions of Congress and the States]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 833-839]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 1. In General; Functions of Congress and the States


    The compromise reached at the original Constitutional Convention 
and approved by the ratifying conventions in the 18th century provided 
for one House of the national legislature to equally represent the 
states and for the other House to equally represent the people of the 
several states.⁽¹⁾ While the drafters of the Constitution 
provided for a periodic enumeration of the national population to be 
used in computing representation in the House of 
Representatives,⁽²⁾ and provided for both state and federal 
regulation over elections,⁽³⁾ the specific mechanism by 
which Representatives would be allocated to states and by which they 
would be elected by the people were not described in the Constitution. 
The procedures for determining the size of the House, allocating seats 
to states, and equally distributing the right to vote for 
Representatives have gained form through congressional and state 
practice, federal statute, and judicial interpretations of the 
Constitution.⁽⁴⁾
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 1. See Wesberry v Sanders, 376 U.S. 1, 14 (1964) for a discussion of 
        the ``Great Compromise.'' The composition of the House is 
        dictated by U.S. Const. art. I, Sec. 2, clause 1, and the 
        composition of the Senate is dictated by U.S. Const., 17th 
        amendment. For a general discussion of the intention of the 
        drafters of the Constitution as to House apportionment and 
        districting, see Hacker, Congressional Districting, Brookings 
        Institution (Washington, rev. ed., 1964).
 2. U.S. Const. art. I, Sec. 2, clause 3.
 3. U.S. Const. art. I, Sec. 4, clause 1.
 4. Collateral matters relating to districts are not described in this 
        chapter. For example, the allowances the Representative may use 
        within his district and his power to send franked material 
        outside his district are discussed in Ch. 7, supra.
            For coverage of elections and election procedures prior to 
        1936, see 1 Hinds' Precedents Sec. Sec. 756 et seq. and 6 
        Cannon's Precedents Sec.  Sec.  121 et seq.
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    Due to the recent proliferation of judicial decisions and 
collateral materials on the general subject of equality of political 
representation, important terms relating to

[[Page 834]]

the subject have become ill-defined and interchangeable. Therefore, 
such terms as ``apportionment,'' ``reapportionment,'' ``census,'' 
``district,'' and ``districting,'' are defined and used herein in their 
strict constitutional meaning.
    The taking of the census is the first step in the process of 
effecting equal representation in the House of 
Representatives.⁽⁵⁾ The U.S. Constitution (art. I, Sec. 2, 
clause 3) provided for the allocation of Representatives among the 
states in accordance with an enumeration to be made of the national 
population every 10 years. The 14th amendment altered that clause in 
requiring the enumeration of all persons including former slaves, and 
in requiring reduction in a state's allocation of seats for denial of 
voting rights.⁽⁶⁾ Congress has sole authority under the 
Constitution to direct the manner in which the enumeration or census 
shall be taken and compiled.⁽⁷⁾ Although the taking of the 
census and its uses have broadened in scope, its primary purpose 
remains to enumerate the people as the basis for the equal allocation 
of Representatives in the House.
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 5. Taking the census, see Sec. 2, infra.
 6. See Sec. 2, infra.
 7. U.S. Const. art. I, Sec. 2, clause 3 states that the enumeration 
        shall be made in such manner as Congress shall direct.
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    Apportionment is the method by which seats in the House are 
distributed among the states in accordance with the results of the 
decennial census.⁽⁸⁾ The term has been used interchangeably 
in recent years to refer to the districting within a state for the 
election of the allotted number of Representatives.⁽⁹⁾ The 
terms apportionment and reapportionment have also been used to refer to 
the allocation of state legislators and other nonfederal officials 
among state subdivisions; that area of the law is not germane to this 
discussion and must not be confused with apportionment and districting 
for the U.S. House of Representatives.
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 8. The 14th amendment of the U.S. Constitution states: 
        ``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.''
 9. References in U.S. constitutional provisions relating to the House 
        of Representatives and election of Members thereof, and to the 
        enumeration of the population of the various states, have to do 
        with apportionment of Representatives among the states, and not 
        within them. Meeks v Avery, 251 F Supp 245 (D. Kan. 1966).
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    The function of apportioning the seats in the House is vested exclu

[[Page 835]]

sively in Congress,⁽¹⁰⁾ and neither states nor courts may 
direct greater or lesser representation than that allocated by an act 
of Congress.⁽¹¹⁾ Before seats in the House can be 
apportioned, the number of seats in the House must be set at a fixed 
number; this determination is within the province of Congress and has 
been directed by federal statute.⁽¹²⁾
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10. Although the power of Congress to allocate seats to the states is 
        not expressly stated in the Constitution, the power is 
        logically implied from the congressional power to direct the 
        taking of the census. Prigg v Pennsylvania, 41 U.S. (16 Peters) 
        619 (1842).
11. For states' claims to greater representation, see Sec. 2, infra. A 
        court cannot reduce the number of Representatives allotted to a 
        state by Congress pursuant to statute. Saunders v Wilkins, 152 
        F2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870, rehearing 
        denied, 329 U.S. 825 (1946).
12. ``The power to district a state, in accordance with the Federal 
        apportionment, is by this section [art. I, Sec. 4, clause 1] 
        conferred upon the state, subject to the control of Congress, 
        whereas the power to fix or alter the number of Members of the 
        House of Representatives of the United States is vested 
        exclusively in the Federal Government . . . there is no doubt 
        that a state cannot exercise the power to fix the size of the 
        Federal House of Representatives, whether through its ordinary 
        legislature, or its constitutional convention, or in any other 
        way.'' H. Rept. No. 51, Committee on Elections, 41st Cong. 2d 
        Sess. (cited at 1 Hinds' Precedents Sec.  318).
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    Under the Constitution, each state is entitled to at least one 
Representative.⁽¹³⁾ Since the first Congress, a specific 
mathematical method has been used in the allocation of the remaining 
seats in the House to the states.⁽⁴⁾ The first such method, 
devised by Thomas Jefferson, called for a predetermined ratio of 
inhabitants per Representative and a rejection of all remaining 
fractions. Under the second method, beginning about 1840, major 
fractions were accounted for by the assignment of an additional 
Representative.
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13. U.S. Const. art. I, Sec. 2, clause 3.
14. See The Decennial Population Census and Congressional 
        Apportionment, H. Rept. No. 91-1314, 91st Cong. 2d Sess., 
        Subcommittee on Census and Statistics, Committee on Post Office 
        and Civil Service. See also Huntington, Methods of 
        Apportionment in Congress, Government Printing Office 
        (Washington, 1940).
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    The method of major fractions in use until 1940 employed a 
mathematical formula and a list of ``priority values,'' based on the 
size of the population of each state, to allocate seats in the House. 
The priority list is also the principal feature of the present method 
of ``equal proportions,'' which uses a different mathe

[[Page 836]]

matical formula to produce more evenly distributed apportionment than 
the major fractions method. ⁽¹⁵⁾
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15. For a technical comparison between the methods of major fractions 
        and equal proportions in relation to apportionment, see Shaw v 
        Adkins, 202 Ark. 856, 153 S.W.2d 415 (1941). The court 
        discussed these and other contemporary formulas, such as the 
        harmonic mean, smallest divisors, and greatest divisors, in 
        order to choose the best method of apportioning state 
        legislators. Federal experience was extensively discussed.
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    Apportionment under the ``equal proportions'' method is complex. 
The problem is to allocate a finite number of seats (385, after each 
state has received one) among 50 states of widely varying population, 
where no seat can be shared between two states, and where the principal 
aim is to allot each seat to as nearly as practicable an equal number 
of constituents. The allotment is accomplished by dividing the 
population of each state by the geometric mean of successive numbers of 
Representatives (n x [n-1] where ``n'' is the number of the seat). For 
example, the population of state A is first divided by 2 x (2-1) to 
establish its priority value for a second seat, then by 3 x (3-1) to 
establish its priority value for a third seat, and so on. Priority 
values are computed for all the states, for successive numbers of 
seats, and then all the values are listed in descending order. If state 
A has a very large population, its claims for a second, third, and more 
seats will be listed ahead of the claim of state B for a second seat, 
if state B is sparsely populated. Thus the 385 seats are allotted to 
the states whose priority values are the first 385 on the priority 
list.⁽¹⁶⁾
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16. For a comprehensive discussion and examples of apportionment under 
        the method of equal proportions, see Guide to Congress, p. 509, 
        Congressional Quarterly Inc. (Wash., 1971).
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    If only one seat is allocated to a state under the method of equal 
proportions, the Representative is elected by and represents the total 
population of the state. If more than one Representative is allocated, 
the state must be divided into subdivisions which elect 
Representatives. Such subdivisions are called congressional districts, 
the formation of which is primarily a matter for the state 
government.⁽¹⁷⁾
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17. Congress ``apportions'' Representatives among the states, while the 
        states ``district'' by actually drawing congressional district 
        lines. ``Apportionment'' in its technical sense refers solely 
        to the process of allocating legislators among political 
        subdivisions, while ``districting'' entails the actual drafting 
        of district lines. Kilgarlin v Martin, 252 F Supp 404 (D. Tex. 
        1966), reversed on other grounds, 386 U.S. 120, rehearing 
        denied, 386 U.S. 999 (1967).
            Congressional districting is a legislative matter for the 
        several states. Smiley v Holm, 285 U.S. 355 (1932); Carroll v 
        Becker, 285 U.S. 380 (1932); Koenig v Flynn, 285 U.S. 375 
        (1932).

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[[Page 837]]

    The function of the state in dividing itself into districts has 
been included within the label of ``reapportionment.'' The decisions of 
the U.S. Supreme Court and of the federal courts since 1964 which have 
dealt with congressional representation and which have been termed 
``reapportionment'' cases are in actuality decisions on the designation 
of congressional districts within a state and not on the apportionment 
of Representatives to states by Congress.⁽¹⁸⁾
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18. For a discussion of those decisions, see Sec. 3, infra (districting 
        requirements) and Sec. 4, infra (failure of states to 
        redistrict).
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    Another term which the reader may encounter in this chapter is 
``at-large'' elections.⁽¹⁹⁾ An at-large Representative was 
elected by and represented all the people of the state rather than a 
specific subdivision thereof. At-large elections and multi-member 
districts are now prohibited by federal statute, ⁽²⁰⁾ 
reflecting the prevailing view that such elections were not 
contemplated by the drafters of the Constitution. ⁽¹⁾
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19. See 2 USC Sec. 2a(c) (superseded by 2 USC Sec. 2c).
20. See Sec. 3, infra.
 1. See Norton v Campbell, 359 F2d 608 (10th Cir.), cert. denied, 385 
        U.S. 839 (1966). See also Hacker, Congressional Districting, 
        Brookings Institution (Washington, rev. ed., 1964).
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    Reapportionment and districting issues do not arise in relation to 
the elections of Delegates and Resident Commissioners, since the 
controlling constitutional provisions relate solely to Representatives 
of the states. Delegates and Resident Commissioners are created by 
statute, and each territory has been entitled to only one Delegate, 
elected by all the people of the territory.⁽²⁾
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 2. For the nature of the office of Delegate and Resident Commissioner, 
        see Ch. 7, supra.
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                         Collateral References
The Decennial Population Census and Congressional Apportionment, H. 
    Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and 
    Statistics, Committee on Post Office and Civil Service.
Hacker, Congressional Districting, Brookings Institution (Wash., rev. 
    ed., 1964).
Keefe and Ogul, The American Legislative Process: Congress and the 
    States, Prentice-Hall (1964).

[[Page 838]]

 Congressional Power Over Taking the Census

Sec. 1.1 The manner of taking the census is for Congress to decide.

    On Jan. 8, 1941, the results of the 1940 census were laid before 
the House, accompanied by a Presidential message stating that all 
Indians had been included in the enumeration since they had become 
subject to federal taxation.⁽³⁾ The President's message read 
in part as follows:
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 3. 87 Cong. Rec. 70, 77th Cong. 1st Sess. The 14th amendment excludes 
        from the enumeration all Indians not taxed.
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        The effect of this [enumeration of Indians] upon apportionment 
    of Representatives, however, appears to be for determination by the 
    Congress, as concluded in the Attorney General's opinion of 
    November 28, 1940, to the Secretary of Commerce, a copy of which is 
    annexed hereto.

    No objection was made to the inclusion of Indians within the 
enumeration.
    The opinion of the Attorney General referred to by the President 
stated that ``what construction the Congress will now give to the 
phrase `Indians not taxed' is a question for it to decide, and action 
taken by it with respect thereto will be final, subject only to review 
by the courts in proper cases brought before them.''
    Pursuant to Congress' sub silentio ratification of the enumeration, 
Indians have been counted in the census since 1940.

Congressional Power to Allocate House Seats

Sec. 1.2 The House has determined that the constitutional provision 
    requiring Congress to reapportion seats in the House to the states 
    after the taking of the census is directory and not 
    mandatory.⁽⁴⁾
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 4. For a prior elections committee report reaching the same 
        conclusion, see 6 Cannon's Precedents Sec. 54.
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    On Apr. 8, 1926, the House determined by a yea and nay vote a 
question submitted to the House by Speaker Nicholas Longworth, of Ohio, 
pertaining to the constitutional privilege of a motion to consider 
reapportionment legislation.⁽⁵⁾ Preceding the vote on the 
question, there ensued a lengthy debate in the House on the nature of 
the requirement of the Constitution that Congress order a 
reapportionment of seats in the House to the states following each 
decennial census.⁽⁶⁾ By finding that the motion was not 
constitu

[[Page 839]]

tionally privileged, the House overruled prior precedents holding to 
the contrary and determined that the House could not be forced to 
consider reapportionment legislation.⁽⁷⁾
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 5. 67 Cong. Rec. 7148, 7149, 69th Cong. 1st Sess.
 6. Id. at pp. 7138-48. See Sec.  2.4, infra, for more detailed 
        discussion of this precedent.
 7. Congress thereafter provided for an automatic system of 
        reapportionment. See the act of June 18, 1929, Ch. 28, Sec. 22, 
        46 Stat. 26, as amended, 2 USC Sec. 2a.
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Congressional Power Districting

Sec. 1.3 Congress has constitutional authority to establish 
    congressional districting requirements for the states and to compel 
    compliance therewith.

    On Jan. 9, 1951, the results of the 1950 census were transmitted to 
Congress, accompanied by a Presidential message recommending the 
enactment by Congress of congressional districting standards to correct 
wide variances in the size and composition of districts.⁽⁸⁾ 
The message cited Congress' power to preempt state regulation over the 
times, places, and manner of congressional elections in order to 
establish standards for congressional districting and to compel state 
compliance therewith.⁽⁹⁾
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 8. 98 Cong. Rec. 114, 82d Cong. 1st Sess. Prior to 1929, Congress had 
        enacted statutes regulating the size and composition of 
        congressional districts (see Sec. 3.3, infra).
 9. Id. Districting legislation was passed in later years (see 
        Sec. 3.3, infra).
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