Article I, Section 2 of the U.S. Constitution lays out the organization of the House of Representatives, including the time frame for elections and how the number of representatives for each state is established.
Some provisions of Article I, Section 2 are no longer in effect - namely, the characterization of enslaved people as "three-fifths" of a person for the purposes of the population count. It does, however, serve as a reminder that the Constitution was originally written by, and for, white men who owned property. In the years that followed, constitutional amendments and interpretations by the Supreme Court have changed these provisions.
What Does Article I, Section 2 Say?
"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
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. The actual Enumeration 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; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."
How the Constitution Organizes the House of Representatives
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
A major innovation in constitutional law in recent years has been the development of a requirement that election districts in each state be structured so that each elected representative represents substantially equal populations. Although this requirement has generally been gleaned from the Equal Protection Clause of the Fourteenth Amendment,1 in Wesberry v. Sanders,2 the Court held that "construed in its historical context, the command of Art. I, § 2, that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."3
Court involvement in this issue developed slowly. In our early history, state congressional delegations were generally elected at-large instead of by districts, and even when Congress required single-member districting4 and later added a provision for equally populated districts5 the relief sought by voters was action by the House refusing to seat Members-elect selected under systems not in compliance with the federal laws.6
Analysis of Article I, Section 2 By the Supreme Court
The first series of cases did not reach the Supreme Court, in fact, until the states began redistricting through the 1930 Census, and these were resolved without reaching constitutional issues and indeed without resolving the issue whether such voter complaints were justiciable at all.7 In the late 1940s and the early 1950s, the Court used the political question doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr.8
For the Court in Wesberry,9 Justice Black argued that a reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the phrase by the People, to guarantee equality of representation in the election of Members of the House of Representatives.10 Justice Harlan in dissent argued that the statements on which the majority relied had uniformly been in the context of the Great Compromise—Senate representation of the states with Members elected by the state legislatures, House representation according to the population of the states, qualified by the guarantee of at least one Member per state and the counting of slaves as three-fifths of persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally populated districts.11
The most important issue, of course, was how strict a standard of equality the Court would adhere to. At first, the Justices seemed inclined to some form of de minimis rule with a requirement that the State present a principled justification for the deviations from equality which any districting plan presented.12 But in Kirkpatrick v. Preisler,13 a sharply divided Court announced the rule that a state must make a good-faith effort to achieve precise mathematical equality.14 Therefore, [u]nless population variances among congressional districts are shown to have resulted despite such [good-faith] effort [to achieve precise mathematical equality], the state must justify each variance, no matter how small.15 The strictness of the test was revealed not only by the phrasing of the test but by the fact that the majority rejected every proffer of a justification which the state had made and which could likely be made.
Thus, it was not an adequate justification that deviations resulted from:
- An effort to draw districts to maintain intact areas with distinct economic and social interests,16
- The requirements of legislative compromise,17
- A desire to maintain the integrity of political subdivision lines,18
- The exclusion from total population figures of certain military personnel and students not residents of the areas in which they were found,19
- An attempt to compensate for population shifts since the last census,20 or
- An effort to achieve geographical compactness.21
Illustrating the strictness of the standard, the Court upheld a lower court voiding of a Texas congressional districting plan in which the population difference between the most and least populous districts was 19,275 persons and the average deviation from the ideally populated district was 3,421 persons.22 Adhering to the principle of strict population equality in a subsequent case, the Court refused to find a plan valid simply because the variations were smaller than the estimated census undercount. Rejecting the plan, the difference in population between the most and least populous districts being 3,674 people, in a state in which the average district population was 526,059 people, the Court opined that, "given rapid advances in computer technology, it is now relatively simple to draw contiguous districts of equal population and at the same time . . . further whatever secondary goals the State has."23
Although the Supreme Court had suggested for a number of years that claims of unconstitutional partisan gerrymandering might be justiciable,24 it held in Rucho v. Common Cause that such claims were nonjusticiable, saying that there was no constitutional directive nor any legal standards to guide the Court.25 Quoting an earlier plurality opinion on the issue, the Court said that "neither § 2 nor § 4 of Article I 'provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.'"26
How Are U.S. Representatives Elected?
It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections27 solely in the discretion of the states, save only for the express requirement that the states could prescribe no qualifications other than those provided for voters for the more numerous branch of the legislature.28 This language has never been expressly changed, but the discretion of the states—and not only with regard to the qualifications of congressional electors—has long been circumscribed by express constitutional limitations29 and by judicial decisions.30
Further, beyond the limits of discretion on the part of the states, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to some elections.31 Thus, in the Voting Rights Act of 196532 Congress legislated changes of a limited nature in the literacy laws of some of the States,33 and in the Voting Rights Act Amendments of 197034 Congress successfully lowered the minimum voting age in federal elections35 and prescribed residency qualifications for presidential elections,36 the Court striking down an attempt to lower the minimum voting age for all elections.37 These developments greatly limited the discretion granted in Article I, § 2, cl. 1, and are more fully dealt with in the treatment of § 5 of the Fourteenth Amendment.
Notwithstanding the vesting of discretion to prescribe voting qualifications in the states, conceptually the right to vote for United States Representatives is derived from the Federal Constitution,38 and Congress has had the power under Article I, § 4, to legislate to protect that right against both official39 and private denial.40
- Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College Dist., 397 U.S. 50 (1970) (local governmental units).
- 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964).
- 376 U.S. at 7–8.
- Act of June 25, 1842, 5 Stat. 491.
- Act of February 2, 1872, 17 Stat. 28.
- The House uniformly refused to grant any such relief. 1 A. Hinds' Precedents of the House of Representatives 310 (1907). See L. Schmeckebier, Congressional Apportionment 135–138 (1941).
- Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom, 287 U.S. 1 (1932); Mahan v. Hume, 287 U.S. 575 (1932).
- 369 U.S. 186 (1962).
- Wesberry v. Sanders, 376 U.S. 1 (1964).
- 376 U.S. at 7–18.
- 376 U.S. at 20–49.
- Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and Duddleston v. Grills, 385 U.S. 455 (1967), relying on the rule set out in Swann v. Adams, 385 U.S. 440 (1967), a state legislative case.
- 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969).
- Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).
- 394 U.S. at 531.
- 394 U.S. at 533. People vote as individuals, Justice Brennan said for the Court, and it is the equality of individual voters that is protected.
- Id. Political practicality may not interfere with a rule of practicable equality.
- 394 U.S. at 533–34. The argument is not legally acceptable.
- 394 U.S. at 534–35. Justice Brennan questioned whether anything less than a total population basis was permissible but noted that the legislature in any event had made no consistent application of the rationale.
- 394 U.S. at 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made.
- 394 U.S. at 536. Justifications based upon the unaesthetic appearance of the map will not be accepted.
- White v. Weiser, 412 U.S. 783 (1973). The Court did set aside the district court's own plan for districting, instructing that court to adhere more closely to the legislature's own plan insofar as it reflected permissible goals of the legislators, reflecting an ongoing deference to legislatures in this area to the extent possible. See also North Carolina v. Covington, 585 U.S. ___, No. 17-1364, slip op. at 910 (2018) (per curiam) (The District Court's decision to override the legislature's remedial map . . . was clear error. '[S]tate legislatures have primary jurisdiction over legislative reapportionment,' and a legislature's 'freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands' of federal law. A district court is 'not free . . . to disregard the political program of' a state legislature on other bases. (quoting Weiser, 412 U.S. at 795; Burns v. Richardson, 384 U.S. 73, 85 (1966); Upham v. Seamon, 456 U.S. 37, 43 (1982) (per curiam))).
- Karcher v. Daggett, 462 U.S. 725, 733 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State Bd. of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) (three-judge court), in which the court adopted a congressional-districting plan in which 18 of the 20 districts had 571,530 people each and each of the other two had 571,531 people.
- The Court held in Davis v. Bandemer that partisan or political gerrymandering claims were justiciable, but a majority of Justices failed to agree on a single test for determining whether partisan gerrymanders were unconstitutional. 478 U.S. 109, 125 (1986). See also, e.g., Pope v. Blue, 809 F. Supp. 392 (W.D.N.C. 1992) (adjudicating partisan gerrymandering claim as to congressional districts but deciding against plaintiffs on merits), aff'd, 506 U.S. 801 (1992); Badham v. Eu, 694 F. Supp. 664 (N.D. Cal. 1988) (same), aff'd, 488 U.S. 1024 (1989). In later cases, a majority of the Court continued to suggest that partisan gerrymandering claims might be justiciable, but five Justices could not agree on a test by which to adjudicate such claims. See League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004).
- 588 U.S. ____, Nos. 18–422, 18–726, slip op. at 34 (2019). The issue is discussed in more detail infra, Amend. XIV, § 1, The New Equal Protection.
- Id. at 29–30 (quoting Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (plurality opinion)).
- The clause refers only to elections to the House of Representatives, of course, and, inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide, it was only with the qualifications for these voters with which the Constitution was originally concerned.
- Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1874); Breedlove v. Suttles, 302 U.S. 277, 283 (1937). See 2 J. Story, Commentaries on the Constitution of the United States 576–585 (1833).
- The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments limited the States in the setting of qualifications in terms of race, sex, payment of poll taxes, and age.
- The Supreme Court's interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). The excluded qualifications were in regard to all elections.
- The power has been held to exist under § 5 of the Fourteenth Amendment. Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 (1970); City of Rome v. United States, 446 U.S. 156 (1980).
- § 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended.
- Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966).
- Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.
- Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).
- The right to vote for members of the Congress of the United States is not derived merely from the constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States. Ex parte Yarbrough (The Ku Klux Klan Cases), 110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 (1900); Swafford v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 313 U.S. 299, 315, 321 (1941).
- United States v. Mosley, 238 U.S. 383 (1915).
- United States v. Classic, 313 U.S. 299, 315 (1941).