Academic journal article William and Mary Law Review

Reapportionment, Nonapportionment, and Recovering Some Lost History of One Person, One Vote

Academic journal article William and Mary Law Review

Reapportionment, Nonapportionment, and Recovering Some Lost History of One Person, One Vote

Article excerpt

TABLE OF CONTENTS  INTRODUCTION.                                  1922 I. THE EVOLUTION OF APPORTIONMENT BEFORE 1920  1925 II. THE STALEMATE OF THE 1920S.                1935 III. THE IRONY OF 1929.                        1941 CONCLUSION: FROM 1920 TO 2020.                 1956 

INTRODUCTION

I don't know whether it was Yogi Berra or Niels Bohr who first said it--if either of them did--but it's tough to make predictions, especially about the future. (1) That is certainly true about the next round of congressional redistricting--the process of drawing the boundaries of the districts from which members of the House of Representatives will be elected. In most states, control over drawing the lines will depend on the outcome of gubernatorial and state legislative elections in 2018 and 2020. And as has been true since the Supreme Court's decision in Wesberry v. Sanders, (2) the line-drawers will once again be crafting their maps under a set of legal constraints that has changed since the previous round. Mapmakers in the South and Southwest are free from the preclearance requirement and prohibition on racial retrogression that governed the last five redistricting cycles. (!) The Supreme Court has, yet again, refined the contours of its doctrine forbidding excessive reliance on racial considerations/ Depending on the Court's decisions in Gill v. Whit-ford nd Benisek v. Lamone, states may face new limits on the degree of permissible partisanship in the redistricting process. (5) The interactive effects of all these rule changes are hard to predict. And just as in prior decades, there are likely to be some unanticipated changes as well.

But when it comes to congressional reapportionment--that is, the process of allocating seats in the House of Representatives among the states (6)--there seems to be no real uncertainty. Since 1941, that process has been the paradigmatic "machine that would go of itself." (7) Sometime in early 2021, the President will "transmit to the Congress a statement" of each state's population "and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member." (8) And roughly a fortnight thereafter, unless Congress acts to stop him, the Clerk of the House will send each governor "a certificate of the number of Representatives to which such State is entitled." (9) Reapportionment will be over; redistricting will be underway. (10)

It was not always so. In fact, the post-2020 round of reapportionment will mark the centennial of the most striking episode in the history of American reapportionment: Congress's failure, for the entire 1920s, to reallocate seats to reflect the census results. (11) The reasons for this failure, and the consequences of Congress's ultimate response, continue to shape our politics today.

Historians and political scientists have written excellent studies of apportionment that address the nonapportionment post-1920. (12) But none of these studies focuses directly on the doctrinal concerns that informed, and then flowed from, these developments. This Article aims to fill that space. I begin by describing the constitutional structure of apportionment, the questions the Constitution left open, and how those questions were resolved prior to 1920. I then turn to what happened in the 1920s and why. Finally, I explore the aftermath of Congress's ultimate solution, and how that solution set the stage for the Reapportionment Revolution of the 1960s. The story is interesting in its own right, but I also suggest ways in which the upcoming redistricting will present many of the same questions that the nation faced a century before.

I. THE EVOLUTION OF APPORTIONMENT BEFORE 1920

The original Constitution provided for the apportionment of seats in the House of Representatives in Article I, Section 2, Clause 3:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. … 
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