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GPSolo September/October 2024: Election Law

Apportionment and Reapportionment Issues in U.S. Politics

Matthew Spolsky

Summary

  • The apportionment and reapportionment of the members of the U.S. House of Representatives has been a political issue in this country since it was founded.
  • Disputes have involved such issues as partisan gerrymandering, restrictions based on race, and who will be counted in the census.
  • The two most recent presidential administrations have staked out very different approaches to apportionment in two opposing executive orders.
Apportionment and Reapportionment Issues in U.S. Politics
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The apportionment and reapportionment of the members of the U.S. House of Representatives has been a political issue in this country since it was founded. Some of the issues related to apportionment include partisan gerrymandering, redistricting based on race, and who will be counted in the census, on which apportionment is based.

The Apportionment Process

Apportionment among the states is based on the census. Article 1, Section 2 of the U.S. Constitution requires a census be taken: “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.” Outside of the 1920 census, seats in the U.S. House of Representatives have been apportioned on the results of each census.

The Congressional Research Service informs the U.S. House of Representatives on how the then-current census data is processed to determine reapportionment of representatives among the states:

Apportionment (or reapportionment) refers to the process of dividing seats in the U.S. House of Representatives among the states. Article 1, Section 2, of the U.S. Constitution, as amended by Section 2 of the Fourteenth Amendment, requires that seats for Representatives are divided among states, based on the population size of each state. House seats today are reallocated due to changes in state populations, since the number of U.S. states (50) has remained constant since 1959; in earlier eras, the addition of new states would also affect the reapportionment process, as each state is constitutionally required to receive at least one House seat.

In total, there are 435 seats in the U.S. House of Representatives. Each state automatically gets one seat, so 50 of the seats are predetermined based on the 50 states. The remaining 385 seats are determined based on the census data, which is reported every ten years through the census. The criteria used to determine which states get more seats in the House include population equality and protections for racial and language minorities. Other reapportionment considerations include political subdivisions, communities of interest, compactness and continuity in a district, promotion of political competition, and considerations for the existing district or the incumbent candidate.

The American Redistricting Project already has a 2030 apportionment forecast as of December 2022. This forecast predicts which states will lose representatives and which states will gain representatives based on population changes. They currently predict California will lose five seats while Texas and Florida will each gain four seats. Other state predictions are available as well. These estimates are based on the U.S. Census Bureau forecast of population changes.

Political Issues Surrounding Apportionment

Redistricting and Race

Redistricting is an issue caused by apportionment based on the census data, which can sometimes be inherently race-based. Rebecca Green, a professor at William and Mary School of Law, gave a December 3, 2021, presentation on the issues caused by redistricting. Professor Green points out the flaws in redistricting decisions based on reapportionment of U.S. House of Representatives seats. One of the most difficult things to determine when redistricting a jurisdiction is the impact on racial minorities. Professor Green states:

There’s also a federal statute, the 1965 Voting Rights Act, that requires line drawers to not dilute minorities’ ability to elect their candidates of choice. This is incredibly complex, this area of the law . . . but essentially, if there is a minority group that is sufficiently large and geographically compact, and if the voting in that area is highly racially polarized where the minorities vote differently than the majority population, then the 1965 Voting Rights Act creates protections for that group of minority voters from being sort of intentionally divided or packed into districts or cracked into multiple districts. . . . [L]ine drawers are told that they must ensure that minorities are able to maintain their ability to elect their candidates of choice, but line drawers can’t take race too much into account—that is, there have been several court cases that have held that, for example, when legislatures set specific targets, like if they set a minority district has to have 55 percent minority voters or 60 percent minority voters, the U.S. Supreme Court has said that that’s a racial gerrymander because it’s an arbitrary sort of target and it doesn’t take the needs of the minority communities into account. . . .

Partisan Gerrymandering

An important apportionment issue stemming from redistricting based on census-reported data is partisan gerrymandering, the drawing of political districts to favor one party over the other. The persons responsible for drawing the political lines can change which candidates can be voted for in which areas. Partisan gerrymandering can potentially remove candidates from being voted for by their target voting pool simply by redrawing the districts. This can lead to inherently race-based redistricting that dilutes the voting strength of political minorities in specific areas.

Lawsuits aimed at preventing partisan gerrymandering have been filed yearly in various states across the country. For years after it was passed, the 1965 Voting Rights Act itself was challenged in the U.S. Supreme Court (see, for example, South Carolina v. Katzenbach, 383 U.S. 301 (1966), and Allen v. State Board of Elections, 393 U.S. 544 (1969)). In 2024, cases such as League of Women Voters of Utah v. The Utah State LegislatureSimpson v. ThurstonBlack Voters Matter Capacity Building Inst., Inc. v. Byrdand Wygant v. Lee are all being litigated based on the issue of partisan gerrymandering.

Executive Orders, the Census, and Apportionment

The executive branch decides how census data is used to apportion seats in the House of Representatives. The two most recent presidential administrations have staked out very different approaches to apportionment—and, as a result, the census—in two opposing executive orders.

Donald Trump’s Executive Order

President Donald Trump’s executive order is titled Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census. It is based on the Constitution and excludes persons who were not U.S. citizens or legal residents from being included in the reapportionment of representatives following the 2020 census. It states in part,

The President, by law, makes the final determination regarding the “whole number of persons in each State,” which determines the number of Representatives to be apportioned to each State, and transmits these determinations and accompanying census data to the Congress (2 U.S.C. 2a(a)). . . . For the purpose of the reapportionment of Representatives following the 2020 census, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.), to the maximum extent feasible and consistent with the discretion delegated to the executive branch.

Joe Biden’s Executive Order

President Joe Biden’s executive order is titled Executive Order on Ensuring a Lawful and Accurate Enumeration and Apportionment Pursuant to the Decennial Census. Section 1 begins,

We have long guaranteed all of the Nation’s inhabitants representation in the House of Representatives. This tradition is foundational to our representative democracy, for our elected representatives have a responsibility to represent the interests of all people residing in the United States and affected by our laws. This tradition also respects the dignity and humanity of every person. Accordingly, the executive branch has always determined the population of each State, for purposes of congressional representation, without regard to whether its residents are in lawful immigration status.

President Biden’s executive order says there is a long tradition of accounting for persons who are not citizens during the census, dating back to the Civil War and abolition of slavery. This executive order is based on the 14th Amendment to the U.S. Constitution and Section 2a(a) of Title 2, United States Code. This executive order also revoked Executive Order 13880 of July 11, 2019 (Collecting Information about Citizenship Status in Connection with the Decennial Census), and the above-mentioned presidential memorandum of July 21, 2020 (Memorandum on Excluding Illegal Aliens from the Apportionment Base Following the 2020 Census).

It is unclear at this time whether the Democratic candidate, Vice President Kamala Harris, will change the party’s stance on apportionment-related issues if she were to win the election. It may be safe to assume that the party will maintain its opinion on these issues in order to preserve some of President Biden’s political platforms. It seems unlikely that Harris would change the current executive order relating to apportionment should the Democrats win the 2024 presidential election.

Apportionment Litigation Based on Executive Orders

Neither of these executive orders is safe from litigation. Two cases being litigated in 2024 deal with presidential executive orders relating to apportionment and reapportion issues: Common Cause Florida v. Byrd and Citizens for Constitutional Integrity v. Census Bureau.

Common Cause Florida v. Byrd was filed in Florida by Common Cause Florida, Fair Districts Now, the Florida State Conference of the NAACP, and individual voters. The case alleges that “the Florida Legislature and Governor DeSantis engaged in intentional racial discrimination in violation of the 14th and 15th Amendments of the U.S. Constitution in crafting the state’s current congressional map.” After a bench trial held in September and October 2023, the U.S. District Court for the Northern District of Florida found there was not a racially discriminatory purpose in enacting the redistricting plan.

Citizens for Constitutional Integrity v. Census Bureau is a federal lawsuit filed

against the U.S. Census Bureau, its Director, and the Secretary of the Department of Commerce challenging the Bureau’s apportionment of congressional representatives following the 2020 Decennial Census as violating the 14th Amendment and the Administrative Procedure Act (the “APA”). . . . [The plaintiffs] are seeking a judicial declaration that the defendants violated the 14th Amendment and the APA, and that the congressional reapportionment report based off the 2020 Census is void, an order vacating and remanding the report to the Census Bureau, and an injunction mandating the Bureau reapportion and reissue the report in accordance with the 14th Amendment’s requirements using the Census Bureau’s data of citizens and voter registration rates.

The case was dismissed for lack of standing on April 18, 2023; however, it is still on appeal in the U.S. Court of Appeals for the District of Columbia Circuit (case number 23-5140).

While apportionment may be an issue constantly ripe for litigation, plaintiffs in these cases must meet their constitutional burden to change the proposed apportionment plan.

A Choice for Voters

During the 2024 election season, it is important to note that the way census data is interpreted may not ultimately be dictated by either candidate on the ballot. The upcoming presidential term will end on January 20, 2029, but census data will not be calculated until 2030. Although the next president may issue another executive order relating to apportionment, it may not be controlling on how the 2030 census is decided. Litigation will likely continue to arise as executive orders are implemented. However, we may not know how census data will be used to apportion representatives until the presidential term that starts in 2029.

As a result, the question of who should be included in census-based reapportionment will factor into the political discussions surrounding both of the next two election cycles. In 2024, two candidates with different viewpoints on this issue will be on the ballot. One candidate holds the position that only U.S. citizens and legal residents should be counted, while the other candidate backs the proposition that all people living in the United States should be counted. These opposing positions are likely to be held by the candidates of the Republican and Democratic parties in the 2028 election as well. The decision is ultimately up to those voting in the 2024 and 2028 election cycles, as they will determine the president who will answer this question.

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