Annotation 8 - Article I


Clause 3. Apportionment of Seats in the House

The Census Requirement

While Sec. 2 expressly provides for an enumeration of persons, Congress has repeatedly directed an enumeration not only of the free persons in the States, but also of those in the territories, and has required all persons over eighteen years of age to answer an ever- lengthening list of inquiries concerning their personal and economic affairs. This extended scope of the census has received the implied approval of the Supreme Court; 314 it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. 315 It failed to make such a reapportionment after the census of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, by the act of June 18, 1929, 316 it provided that the membership of the House of Representatives should henceforth be restricted to 435 members, to be distributed among the States by the so-called ''method of major fractions,'' which had been earlier employed in the apportionment of 1911 and which has now been replaced with the ''method of equal proportions.'' Following the 1990 census, a State that had lost a House seat as a result of the use of this formula sued, alleging a violation of the ''one person, one vote'' rule. Exhibiting considerable deference to Congress and a stated appreciation of the difficulties in achieving interstate equalities, the Supreme Court upheld the formula and the resultant apportionment. 317  

While requiring the election of Representatives by districts, Congress has left it to the States to define the areas from which members should be chosen. This has occasioned a number of disputes concerning the validity of action taken by the States. In Ohio ex rel. Davis v. Hildebrant, 318 a requirement that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States produced a series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other duties committed to state legislatures by the Constitution, the Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under the terms of the state constitution. 319  


[Footnote 314] Knox v. Lee (Legal Tender Cases). 79 U.S. (12 Wall.) 457, 536 (1871).

[Footnote 315] For an extensive history of the subject, see L. Schmeckebier, Congressional Apportionment (Washington: 1941).

[Footnote 316] 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. Sec. 2a.

[Footnote 317] U.S. Department of Commerce v. Montana, 112 S.Ct. 1415 (1992). The practice of the Secretary of Commerce in allocating overseas federal employees and military personnel to the States of last residence was attacked but upheld in Franklin v. Massachusetts, 112 S.Ct. 2767 (1992). The mandate of the clause of an enumeration of ''their respective numbers'' was complied with, it having been the practice since the first enumeration to allocate persons to the place of their ''usual residence,'' and to construe both this term and the word ''inhabitant'' broadly to include people temporarily absent. Another census controversy was resolved in Wisconsin v. City of New York, 116 S. Ct. 1091 (1996), in which the Court held that the decision of the Secretary of Commerce not to conduct a post-enumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute.

[Footnote 318]   241 U.S. 565 (1916).

[Footnote 319] Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); Carroll v. Becker, 285 U.S. 380 (1932).

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