Census Bureau's work is done, but some critics take aim at Congressional refusal to grow

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January 3, 2011

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Without a Congressional Act to create new House seats, the U.S. Census Bureau has continued to reapportion the same number of seats for 90 years

By Eileen McGuire-Mahony

Effectively frozen since 1929, the United States House of Representatives will sit for the 112th time this week. Each of its members will be the primary voice in Washington for over half a million Americans. Beginning in 2012, that number will swell nearer to three-quarters of a million.[1] The reason is that the U.S. Census Bureau may only count and report the nation's population. Only Congress may act to grow the number of Representatives, something that means diluting its own power.

Beginning in 1790, it was the norm for Congress to add more members as the American population increased. Then, in 1929, the 71st Congress refused to add to its number, legally fixing the size of Congress' lower chamber at 435. Nine decades, and nine censuses, have intervened. The nation is three times the size it was at the Depression's onset. The Constitutional requirement for each state to have at least one House seat, (U.S. CONST. art. I, § 2, cl. 3), means some of the vast Western states have an enormous single District – over 800,000 in South Dakota and close to one million in Montana. It also means, after accounting for the requirement that each state have at least one seat, the Census properly only has 385 seats to apportion. In all, the smallest Districts are only 55% the size of the largest, a discrepancy that is itself worrying to some.

Recently, the U.S. Supreme Court refused to take up a lawsuit that sought to force Congress to increase its size markedly. Clemmons v. U.S. Department of Commerce argued the size of House Districts and the long-standing refusal of Congress to add seats amounts to a violation of the “one man, one vote” rule.[2] While calls for citizens for adding seats to the “people's house” are increasing, Congress itself is signaling that it likes 435 just fine.

So long as the Census is limited to rearranging a set number of seats, some states may grow and still lose Congressional representation to states that grow faster still. In 2010, only a single state, Michigan, actually lost population. However, ten states will have to divide fewer seats among more people beginning with their 2012 elections. According to the Gallup polling service, as of the 2010 midterms, all ten of those states have Democratic advantages in voter registration.[3] The same study finds the GOP holds a clear lead in five of the eight states picking up seats.

The overall trend of population movement since 1929 had favored more Republican leaning states. Solidly Democratic New York, for example, had 45 seats in 1940. Since then, it has seen its voice in Congress nearly halved, to 27. Some argue this simply means Americans prefer Republican held states, with lower tax rates and smaller state governments.[4] Certainly, data showing the America's expansion since 2000 owes 60% to births and 40% to immigration argues that both foreign nationals arriving in the U.S. and Americans beginning families share some preferences about where they want to live.[5]

At the same time that Republicans are eager to put their midterms wins to work in drawing new Congressional boundaries, Democrats are finding their own silver lining in patterns of where Americans live. Citing the decidedly left-leaning flavor of major urban centers, some progressives expect their own Congressional power would swell if the House added Districts until the average population each Congressman represented dropped to about 100,000.[6] San Francisco, for instance, would have eight members in Congress under such an arrangement.

Democrats also speculate that Republicans, even holding all the key offices in some states, may not be able to draw new GOP friendly districts without jeopardizing or losing others. Too, the Justice Department will be dominated by Dems during redistricting for the first time since 1960, meaning any Republican plans that even appear to violate majority-minority voting laws will be dealt with harshly.[7] Some states, like Mississippi, still must get Justice Department approval for their redistricting plans, the artifact of a history of voting rights violations.

Beginning next month, the Census Bureau will begin delivering detailed results to states, which legislatures will combine with their own data to draw boundaries for state House and Senate seats as well as for Congressional seats. With some states planning to incorporate redistricting into the regular legislative session and others already anticipating special sessions and interim work to handle the task, the nationwide picture won't emerge fully until 2012, when election campaigns will be in full swing.

However, Congress' authority to hold the number of Federal seats at a constant 435 does not extend to the action states may take and some of the Union's most rapidly growing members, such as Nevada and Texas, may see intense contests to sort out the voting boundaries of a markedly larger population. Depending on the flavor of redistricting, Congress may see a renewed push from the states to expand the total number of seats. Even were that to happen, it would not take effect until the results of the 2020 Census are worked out, in 2021.

By then, five Congress' and three Presidential Elections will have come and gone. Whatever America's population does in the next decade, migration and growth are far from the only things that will influence that distant event. One thing that is predictable is that if Congress does add more seats to its number, the first redistricting done with those new numbers will be spectacularly hard fought. Whether such an imagined round of redistricting would be fiercer than the looming 2011 process remains to be seen.