Constitution Daily

Smart conversation from the National Constitution Center

Will your state gain or lose seats on December 21st?

December 14, 2010 by Dr. Steve Frank


To the mathematically disinclined, myself included, there are few constitutional issues more important and less inviting than congressional reapportionment. The good news: the Constitution requires us to think about it only once every 10 years. The bad news: that time has arrived. Or at least, it will on December 21st.

For the uninitiated, reapportionment is the process by which seats in the House of Representatives are redistributed among the states every 10 years, following each constitutionally mandated census. By law, all 50 states will be notified of their new allotments next month, no later than January 25. Inevitably, there will be winners and losers.

Here’s what the Constitution requires when reapportionment takes place:

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.

(You’ll find that language in the 14th Amendment, which is where it migrated after the Civil War to eliminate from Article I the notorious clause counting slaves as three-fifths of a person for purposes of apportionment. But that’s a story for another day.)

What’s the right size of Congress? The Constitution doesn’t say.

Article I, which concerns Congress, also says:

The actual Enumeration [census] shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.

OK. Sounds simple: Count the number of people in each state every 10 years. Allocate congressional seats to each state according to its population count. Make sure that the number of seats doesn’t exceed one for every 30,000 people and that each state has at least one seat.

What’s there to argue about?

Plenty, as it turns out.

A House of 65

For one thing, what’s the right size of Congress? The Constitution doesn’t say, and from the beginning Americans have disagreed about it.

The Constitution set the initial number of representatives in the House at 65. Opponents of the Constitution argued that that number was too small, placing too much power in the hands of too few, with too little knowledge of their constituents wants and needs.

James Madison, who assumed that the number of representatives would be increased from time to time, suggested (presciently) that 400 would be a number large enough to quiet the controversy. But he said it was a fallacy to base representation on strict “arithmetical principles” and cautioned, in Federalist 55, that more is not necessarily better:

Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the reasoning ought to be reversed…. In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.

Winners and Losers

So with the number of representatives in Congress set at 435 for the past 100 years, has the dust finally settled? Not entirely. Critics complain that because of mathematical rounding errors limiting the size of the House to 435 seats results in the under- and over-representation of some states when seats are reapportioned. But assuming that Congress shrugs off the complaints and that a lawsuit challenging the constitutionality of the 435 number is unsuccessful (a safe bet so far), which states will be the winners and losers come January, when the House is reapportioned to reflect the 2010 census?

The predicted losers: Illinois, Iowa, Louisiana, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio and Pennsylvania.

The winners will come from the South and West: Arizona, Florida, Georgia, Nevada, South Carolina, Utah and Washington.

And the biggest winner of all? Texas, with as many as four new seats.


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