The Reapportionment Act of 2021

How the 117th U.S. Congress Can Preserve American Democracy

U.S. House Apportionment 2010

America has maintained a nucleus of 435 elected seats in the U.S. House of Representatives since 1913. It does not have to be this way. In fact, if decided by James Madison, luminary Father of the U.S. Constitution, we might have closer to 6,000 seated members today.

While 6,000 may be a bit of overkill, expanding the number of U.S. House Representatives is one of the most impactful changes to preserving American democracy over the next century. To understand the importance of this paradigm shift we should start with the 1st United States Congress in 1789, when it nearly became the First Amendment to the U.S. Constitution.

On September 25, 1789, U.S. Representative James Madison of Virginia proposed an ambitious draft of 17 Amendments to the U.S. Constitution. The 1st U.S. Congress working from New York was an ornery bunch, and his list was whittled down to 12 after a week of debate from grumpy Federalists who found any edits to the recently ratified Constitution as wholly unnecessary, and Antifederalists using the Amendments as leverage to lobby for greater protections for States Rights.

James Madison, Father of the U.S. Constitution

Of the 12 Amendments passed by the U.S. House and Senate the first listed was not the famous protector Free Expression that we know today. Instead it was a curious Amendment establishing how apportionment for seats within the U.S. House of Representatives should grow over time:

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Madison wanted to resolve an issue in the original Constitutional Article establishing the U.S. House of Representatives. As written it was notably unclear on how U.S. House seats should grow over time. While the U.S. Senate expressly set 2 Senators for each U.S. state, the seats for the U.S. House were tied to proportional populations within a state to provide greater representation for local concerns.

The issue was that while the U.S. population of 1789 was just under 4 million persons, Madison fully expected the 65 original seats in the U.S. House would need to increase as the size of the nation did. To resolve this his proposed Amendment would have allowed for proportional growth of seats with a cap off at 50,000 persons per represented seat. With an estimated 2020 U.S. population of 331 Million persons that have catapulted the modern number of U.S. Representatives into the thousands.

Alas, the Amendment was not meant to be. While 10 of the Congressionally passed Amendments were ratified by the requisite number of states, and are known today as the Bill of Rights, Madison’s Apportionment Amendment was one of two that were scuttled due to disputes in state legislatures.

With the Amendment tabled and no clear Constitutional guidance the U.S. Congress took matters into their own hands over the next two centuries by adding a loose proportionality of seats after every U.S. Census as the population of the young nation expanded westward.

Finally the 62nd U.S. Congress passed the Apportionment Act of 1911 which capped the number of U.S. House seats at 435 starting in 1913 (with some temporary additions when new states were added). This was further codified with the Apportionment Act of 1929, which has stood as the law of the land nearly 100 years later.

Before going further it is notable that the 435 seats the U.S. House of Representatives has maintained over the last century is largely arbitrary. There is nothing in the Constitution mandating it, no specific political or mathematically principle advocating its maintenance other than its status arising from the Apportionment Act of 1911. This is a critical because creating a cap on the number of U.S. House seats rather than on the number of persons represented by each seat is directly contradictory to Madison and other Founder’s original Constitutional intent.

U.S. House of Representatives 1910

In Federalist Paper №55 Madison made his most impassioned argument why there should not be any limitations on proportional apportionment of U.S. House Seats:

...first, that so small a number of representatives will be an unsafe depositary of the public interests; secondly, that they will not possess a proper knowledge of the local circumstances of their numerous constituents; thirdly, that they will be taken from that class of citizens which will sympathize least with the feelings of the mass of the people, and be most likely to aim at a permanent elevation of the few on the depression of the many;..

The U.S. House was always designed to be “The People’s House”, the counterbalance in Congress to the more aristocratic U.S. Senate. As such, Madison found it critical that elected Representatives maintain close ties to the local communities they arose from. Such tight bonds could only be established with a larger number of Representatives representing a smaller number of constituents. That same thought process was evident in his proposed Apportionment Amendment where he listed out growth patterns over time with a cap on the minimum number of U.S. House seats, not maximum number, and that “nor more than one Representative for every fifty thousand persons.”

While the originally proposed “fifty thousand persons” might lead to an unwieldy seating of 6,000 U.S. Representatives, that would still be closer to Madison’s ideal than the current state. The average size of a congressional district based on the 2010 Census apportionment population was 710,767, more than triple the average district size of 210,328 based on the 1910 Census apportionment, when the 1911 Reapportionment Act passed, and 63,815 more than the average size based on Census 2000 of 646,952.

In other words, due to the cap on 435 U.S. House seats the average U.S. House seat now represents over 500,000 more constituents then they would have when the law was created in 1911. And this dilution of representation continues to grow, with the U.S. population projected to increase by 8 percent between 2010 and 2020 Census, from 309 million to 331 million.

That brings us to today, when the next U.S. Congress has a generational opportunity to turn the tide of history in a modern way.

The 117th U.S. Congress decided by the election this November and seated in January of 2021 should pass a new Reapportionment Act in 2021 that:

1) Removes any limitations to adding U.S. House Seats

2) Caps sizes of U.S. House Districts to 500,000 persons

3) Designates how the proportional growth of seats should be added to the U.S. House after every Constitutionally mandated Census Report

“500,000 persons” may seem as arbitrary as Madison’s proposed 50,000, but it has many modern day advantages.

The first is that it brings the U.S. House back inline with Madison and his concerns about representatives losing touch with their local districts. While 500,000 persons is still large it would whittle down the average district size by around 200,000 persons, leveling the playing field and allowing for greater focus on the concerns of a smaller number of constituents.

With the expected U.S. population in 2020 to be around 331 million persons that would expand the overall number U.S House Seats from 435 to around 662 seats in time for the 2022 Midterm election. That is more reasonable than the 6,000 seats under Madison’s original Amendment, while allowing for up to 230 new elected voices representing a greater diversity of Americans.

The change would also create more overall representation, allowing additional opportunities for sub-communities on both ends of the political spectrum to have their voice heard in the U.S. Congress and for a new generation of leaders to emerge outside the full-time politician class who might traditionally run for such roles.

One key note here of course is that U.S. House seats are proportioned by the States, not at-large, and the U.S. House districts are drawn by sitting State Legislatures every ten years after the U.S. Census is completed. This proposed Reapportionment Act would also address another unusual issue in our current system — States are literally stealing seats from each other.

Below is the last U.S. House Reappointment map from 2010.

U.S. House Apportionment 2010

And the next map is the projected changes in apportionment for 2020.

2020 Reapportionment Projection

As you can see, because of the hard cap on 435 seats that means as State populations fluctuate the only way to gain a new seat is to take it from someone else. Under the map above as Arizona, Florida, Colorado, and other states in green add seats the big losers are California and states in the Rust Belt and Northeast in red who lose them. While that make some basic machiavellian sense, looking deeper at the actual numbers distinctly makes this feel unequal.

Let’s start with California. While there will likely be some conservative glee at them likely losing a House seat in the next decade, the numbers show the state actually grew over the last decade, from roughly 37 million people to 39.5. Texas conversely could be awarded up to three additional U.S. House seats for growing from 25 million to 29.

While the two largest states in the Union might be able to weather this other smaller states might feel the hurt far more acutely. Minnesota, set to lose around 300,000 people over the decade, could drop 1 out of the 8 U.S. House seats they have, while West Virginia is set to add nearly 100,000 people yet still lose a House seat from 3 to 2. This dramatically decreases the representation in such states and increases the risk of larger states poaching seats from smaller ones in the future.

By passing a new Reappointment Act that with a 500,000 persons per district cap all states that are growing will be rewarded for that growth with additional seats, without them having to be pulled from another sister State. States could lose seats, but only if they are severely bleeding population. Under this new formula overall representation would actually spike across the country. Examples based on projected 2020 population numbers:

California — 39.5 million = 79 U.S House seats

Texas — 29 million = 58 U.S. House seats

Minnesota — 5.3 million = 10 U.S. House seats

West Virginia — 1.8 million = 3 U.S. House seats

Many midsize and smaller states such as Minnesota will actual gain seats, not lose them (including my own home state of New Mexico which at 2 million people would add an additional U.S. House seat for 4 total). And while West Virginia will not gain a seat it will at least maintain the 3 it has and have potential to add a 4th if they continue to grow toward 2 million people.

Conversely, larger states will greatly expand their seat count in the U.S. House for better representation within such states. While some may huff at that prospect, it also better reflects the original Constitutional compromise that created both the U.S. House and U.S. Senate. While small states like West Virginia and New Mexico are equal to California and Texas in the Senate with two elected Senators for each state, the larger populations of the latter states were intended to be proportionally represented in the U.S. House.

In short, America should think big its future and not to be locked into the traditional orders it found itself during the 20th century. While there are many ideas on how to change the current process, there is nothing to fear in creating greater representation in our federal government or by creating smaller communities within the great U.S. House. While the 116th Congress was the most diverse in history, from gender to race to political perspective, we can still do better.

And to start we must first remove one of the most arbitrary and unnecessary shackles in our system.

Democratic Reps. Terri Sewell of Alabama, Sheila Jackson-Lee of Texas, Carolyn Maloney of New York and other members of the 116th Congress pose for a selfie with House Speaker Nancy Pelosi at the U.S. Capitol in Washington on Jan. 4. (Melina Mara/The Washington Post via Getty Images)

Tech Attorney, Author

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store