David Fredosso, writing at Conservative Intelligence Briefing, makes the case for increasing the size of the US House, citing one of my previous posts advocating the same. He makes two additional and valuable points: (1) “The Wyoming Rule”, by which the standard Representative-to-population ratio would be that of the smallest entitled unit, is misleading as to how representation is currently (mal-)apportioned; (2) Increasing the size of the House would not, as is sometimes assumed, be of benefit to Democrats and liberals.
David quibbles with the Wyoming part of the story, noting that “Wyoming is not the most overrepresented state — by a long way, that distinction goes to Rhode Island, with its two districts, average population 528,000”, whereas Wyoming has a population of 568,000 (and one seat).
I would note that this is a very small quibble indeed, as the Wyoming Rule–which, to be fair, I neither named nor invented–refers to “smallest entitled unit” not to “most over-represented unit”. Of course, every state is a unit entitled to at least one, but sometimes a state with two members indeed will be over-represented to a greater degree than some state with one member. Whichever we base it on–smallest entitled or most over-represented–the principle is the same: expand the House.
David proposes a House of 535, and has a table of how that would change each state’s current representation. I would go higher (600 or so), but the precise degree of increase is an even smaller quibble. I am pleased to see this idea being promoted in conservative (or liberal, or whatever) circles. And it’s always nice to be cited.
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See also:
Reapportionment–a better way?; this includes a discussion of the cube-root rule of assembly size, and a graph of how the US relationship of House size to population compares to that of several other countries, and how it has changed over time as the US population has grown, but the House stopped doing so.
Fruits and Votes 
Quite possibly I’m missing something here but wouldn’t “use the population of the most over-representated unit as the quota” lead to infinite regress?
Many years ago, on Rick Hasen’s electoral law listserv, I got the chance – at last – to ask the US’s most eminent electoral and constitutional law experts a question that’s bugged me for some time:
How does one square the Twenty-Third Amendment stipulation for determining DC’s allocation of Electors – viz, as many as it would have “if it were a State” – with the fact that Electors (well, technically Representatives) are allocated among the 50 States using a highest-average method (Huntingdon/ Equal Proportions), which in effect shifts the goal posts?
In other words, if DC were the 51st State and there were still 435 Representatives, there would be 535 Electors, not 538.
You can only get 538 Electors (or anything other than 535) if you use an allocation method analogous to Australia’s: something like “(1) Divide the US population by 435 to give a quota. (2) Allocate each State N Representatives where it has N whole quotas, or 1 Representative if it has less than a quota. (3) Add one extra seat if and only if its number of quotas (including any fraction) is greater than the square root of (N x [N + 1]).” I gather that something like this is the formula that Congress has actually specified for calculating the number of Electors that DC gets (adding two additional seats, of course, to mirror the Senators it doesn’t have).
Instead, the existing formula replaces step #3 above with “(3) Calculate the average for each State by dividing its population by N plus the square root of (N x N + 1). (4) Add one extra seat to each of the States with the highest averages until the total reaches 435.”
Put yet another way – “if” the District of Columbia were a State, that counterfactual alone wouldn’t be enough to change the size of Congress or the Electoral College. If all that changed were that DC were the 51st State, it would take 1 of 435 House seats off another State (Utah, I think, was last to the wire at the 2000 census), rather than creating a 436th House seat ex nihilo.
All that happened, unfortunately, was that I confused everyone on Rick’s list…
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Back to the Wyoming rule (and its counterpart in other federations [*])… I can see arguments for increasing the size of the US House (same for Australia’s), but I’d be wary of setting the number of seats in such a way that the smallest State’s population sets the quota. This seems to be a recipe for big see-saws in size caused by small absolute changes in population size.
If I were – to pick a random example – a Californian, I’d probably prefer a House fixed fairly stably at (say) 500 seats – even if Wyoming then gets one seat with (say) only 0.1% of the total – than to have the size of the House fixed at 1,000 seats as long as Wyoming has 0.1%, have it jump to 1,200 seats if Wyoming’s share drops to 0.0833% (eg, if other States gain population faster), then drop to 900 seats if Wyoming gains a few thousand more people, and so on.
In other words, distinguo “500 seats (or whatever) is a good size and also means Wyoming is not too over-represented” versus “whatever number of seats means the smallest State has exactly 1.0000 quota”.
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On House size, yes, I prefer Tom’s formulation, or some variant of it, to something as rigid as the Wyoming Rule (or Rhode Island Rule, or whatever).
As for the DC electors, the relevant portion of the 23rd Amendment is:
Thus: (1) DC is effectively limited to three electors, regardless of its population, unless we ever get to a situation in which the smallest state has more than one Representative; (2) the allocation of 435 (or whatever number Congress might set in the future) House seats is constitutionally left independent of DC.
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[*] Curiously, neither federations nor unitary nations seem to often have constitutional rules entrenching electoral equality. (Germany and Ireland are exceptions respectively).
Federations usually have rigid constitutions that entrench electoral inequality – equal numbers of seats per State in the upper house, minimum (and sometimes, as in Brazil and the EU, maximum numbers) of seats per State in the lower house.
Unitary states, on the other hand, have flexible constitutions that tend not to entrench equality. In Britain, France and Japan, for example, three of the most populous unitary democracies, remote and rural areas are over-represented in accordance with statute, and there is no constitutional court that’s both willing and able to compel the legislature to reapportion seats (more) equally.
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Japan, a unitary state, actually has an extremely rigid constitution. It also has a Supreme Court that has forced politician to act a few times over the decades to reduce malapportionment, including a small adjustment just passed.
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One of those combox statements that starts off accurate as a generalization about one or two instances but them becomes inaccurate as one eggs the cake with additional examples. To be more precise: UK has no entrenched constitution. France has one but it doesn’t say much specific about electoral equality. (Albeit across the border in Germany, similar vague wording about direct and equal universal suffrage did get invoked by the constitutional tribunal). Japan, too, has vague wording but the normal pattern (outside the US) is that unless the Constitution is quite specific (“maximum variation 10%”, say, or “one seat per whole N thousand population or remainder over 0.N”), courts will bend over backwards to avoid striking down electoral boundaries. Not least because doing so might bring the validity of the current and previous legislatures into doubt. Confirming this is that the rate cases where judges in Canada and Australia did intervene usually involve new amendments that haven’t yet been applied in an election, thus avoiding this conundrum. Japan’s court has tried to empty the sea of malapportionment one spoonful at a time.
(Ironically, one rare case of constitutional wording that would have set a definite maximum variation – specific enough that it might well have emboldened the constitutional tribunal to even stare down the legislature – was Fianna Fail’s failed proposal to replace STV with FPTP. Either the 1957 or the 1969 proposal would have set a maximum variation of 16.667% from the average).
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Newer constitutions like South Africa tend to be very specific about voting rights and procedures. I respectfully disagree with Tom about the willingness of courts to intervene in Australia and Canada where the courts have actually become quite interventionist on issues like prisoner disfranchisement and the timing of roll closures.
The proposal for a national quota with a state minimum was endorsed for Australia by the Royal Commission on the Constitution in the 1950s but the government did not pursue the issue.
I think the Taagepera number is a far better basis for setting the size of the house than arbitrary numbers like 435 or 500 or indeed twice the number of state senators.
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“Japan’s court has tried to empty the sea of malapportionment one spoonful at a time.”
Good one, Tom!
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Yes, but Alan, note that in both the Australian cases where GetUp! recently persuaded the High Court to intervene involved new amendments – restricting more prisoners from voting and closing the rolls immediately after the issue of writs – the High Court could simply continue the status quo.
Even though the prisoner disenfranchisement provision in Haig v Canada had been on the statute books for years previously, excising it was a straightforward matter of the Supreme Court “blue-pencilling”.
(Having said that, the HCA did not flinch from upholding the Constitutional right to a House exactly 2.0 times the size of the Senate even though it meant casting doubt on the validity of the composition of Parliament from 1961 to 1977. Sometimes courts just have to draw a line…)
On the other hand, in both Canada and Australia the courts have shied away from redrawing electoral boundaries to make them more equal. US experience since Sims and Carr suggests that this is a battle courts cannot win. I understand that even when courts (eg, Germany and Japan) do hold an existing districting to be unequal to an unconstitutional extent, their remedy is usually to wag the finger at legislators and say “Please fix this when convenient” rather than to directly intervene.
Courts drawing the boundaries themselves (or appointing a special master to do it for them) draws them into the “thicket” (Robert Bork has some mordant reminiscences about his own experiences in the latter role). Self-executing remedies would be simpler – the Alaskan solution of re-allocating seats among existing multi-member districts, the 1977-83 Australian solution of voiding all the boundaries and having the whole State vote as one constituency (actually used in Illinois in 1966) – but these would play havoc with the normal desiderata for district magnitudes, whether “all single-seaters” or “5 or 7 seats per district”. Only when district magnitudes are of a Swiss or Finnish size (and the boundaries are fixed either by the Constitution or by rarely-amended statute) would reapportionment (in the strict sense, without redistricting) be painless.
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Re DC: In practice, DC is only ever going to have one notional House seat (and thus three actual Electors) unless every State jumps to two or more Congressreps, which is unlikely although not impossible.
My query (which I’m really not explaining very clearly here, I know) is: the 23rd Amdt says, in effect, “If DC were the 51st State, how many Representatives would it have? Right, now add two.”
If the only change assumed in this counterfactual universe is that DC was a State – and that nothing else changes – then DC would not have three Electors out of five hundred and thirty-eight. Instead it would have three Electors out of five hundred and thirty-five, because the US House is apportioned using a highest-averages method, not a remainders-over-certain-size method. The former aims to allocate (under current conditions) exactly 435 seats. It is not trying to allocate 438 seats.
Since this conceptual anomaly does not appear to be bothering any actual Americans, including professors of law and political science, I should probably stop fretting about it.
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