As Peter Baker reported in today’s New York Times, a lawsuit is set to be filed in federal court in Mississippi, charging that the federal government has disenfranchised many of its citizens because they are underrepresented in the House of Representatives. The math behind the lawsuit is simple and unassailable.
In Montana, there is one at-large member of the house for the state’s population of roughly 958,000. By contrast, in Rhode Island, there are two districts of 527,000 and 531,000 persons each. That means that Rhode Island’s representatives carry about twice as much weight as Montana’s lone representative. That is inherently unfair.
As the article goes on to point out, it has been nearly a century since House membership was increased to its current level of 435. In that time, the population of the country has tripled. In effect, population growth and shifting patterns of residency have left the current model of representation not only obsolete, but also unconstitutional, as it has created a situation where some people have more of a voice in Congress than others. The lawsuit argues that the only way the House can fix the disparity in representation among the districts is to increase the membership of the House, to as much as 1,761.
The idea of a House that large can create a visceral sensation of distaste, and that is understandable. The thought of expanding a chamber of Congress that is loathed almost uniformly throughout the nation is difficult to comprehend, but, as lined out in the Constitution, this would appear to be the only way to more fairly apportion members of the House.
But there is one other way.
The current disparity isn’t the result of population growth or distribution. Rather, it is the result of state borders. Because a Congressional district by law has to stop at the borders of a state, there is a limit to how much districts can be reshaped based on population. If that restriction were lifted, if House membership were no longer pegged to a particular state, then districts with roughly equal proportional representation could be drawn up without having to increase the size of the House. It would take a Constitutional Amendment to do this, but the current disparity in representation is only going to continue to increase. If increasing the size of the House is untenable, then this is a fine alternative solution.
However, of the two, changing the Constitution so that Congressional districts can cross state lines would be the truly difficult solution to implement. The apportionment of representatives affects not just the composition of the House, but also the election of the president, due to the distribution of electors. An Amendment would have to change parts of Article I, Section II, which deals with the composition of the House; Amendment Fourteen, which altered Section II; Article I, Section IV, which delegates the manner of holding elections to the state the representative is coming from (since in this new system districts cross state lines, the manner of the election would most likely have to be dictated by the federal government unless the state governments involved can figure out a way to hold a joint election); and Article II, Section I, which details how the electors are apportioned. Also, legislation in all the states would be required to implement the new Amendment on the local level.
That would be quite a far-reaching Amendment, and would fundamentally alter government. The arguments for pursuing it are strong. After all, the concept of equal representation under the law has been affirmed by the courts multiple times, and the House would appear to be in violation.
Tradition and precedent would be the major barriers for passage of such an Amendment in Congress, most likely fatal barriers. Additionally, if such an Amendment did somehow make its way through Congress, it would take a miracle for the states to pass it. Representation in the House across state lines is not something the states would consent to, although members of the House do not represent the interests of the states, but the interests of the people of that state. The distinction is important. We are a national people, but our Congress is still organized along lines that predate that national identity. A lower body that reflects our national identity, by representing peoples across state borders, would more accurately reflect the nation we have become.
These new rules of apportionment would still allow for increasing the size of the House at some point. With the border restrictions removed, that increase would be much simpler to accomplish in a way that furthers the ideal of equal representation.
The choices are stark. On one hand, you have a House that increases in size, becoming more unwieldy as it does so. Continuous increases in membership are the only way to ensure proportional representation, since districts would still stop at state lines.
On the other hand, you have a House that stays constant in size, with representatives adding more and more constituents as the population grows, but with equal representation across state lines. Furthermore, there remains the possibility of future increases in membership.
Neither solution is perfect. Both are better than current conditions. For the sake of more accurate representation in Congress, the cross-border solution, while the more difficult of the two to implement, would in the long run result in more fair representation, and one that is more in tune with the realities of our growing and shifting population.