Litigating to a Larger House of Representatives Based on a Secretly Ratified Constitutional Amendment?

It is no secret that the size of Congressional districts is dramatically larger now than at the time of the ratification of the Constitution. Many have argued over the years that we would have better representation if we increased the number of House members dramatically. See Bruce Bartlett and Brian Frederick in 2014, and Doug Mataconis collects more arguments in favor of a larger House.

Jonathan Bernstein expressed skepticism, and I’m skeptical too. It may make it easier to contact Representatives if there were more of them, but to make those folks easy to reach and responsive there would have to be a lot more of them. That, in turn, would mean a gigantic House of Representatives, and I suspect we’d have all kinds of problems with governance and corruption with a large, mostly anonymous House.

There have been lawsuits periodically arguing that the size of the House is unconstitutionally small (here’s a NY Times write up of a case from 2009), and now there’s a lawsuit (Lavergne v. U.S. House of Representatives) pending before a three-judge court in Washington D.C., before Judges Kollar-Kotelly, Moss, and Pillard. That’s a really sharp panel and they will give the arguments a fair hearing.

The legal claim is more than a bit nutty, and it does not appear to be litigated very well. But in essence (as noted in this Town Hall piece), depends on the idea that the country ratified a  constitutional amendment but no one knows it.

From this oppositional pleading by DOJ:

Mr. LaVergne and four co-plaintiffs—including Mr. Neuman—brought this case on April 28, 2017. ECF No. 1. They claim that there is a provision in the United States Constitution— known only to them—requiring the House of Representatives to be apportioned such that there be at least one representative for every 50,000 persons in the United States, which, by their math, requires that the House contain at least 6,230 members as of the last census. See Am. Compl. at 19 ¶ 1, ECF No. 4. For a House that size to achieve the quorum necessary to conduct business, 3,116 members would have to be present. Id. at 20 ¶ 1. Because the House of the current 115th Congress contains only 435 members, Plaintiffs say, each and every action taken by that House— and presumably that of every other Congress in recent history—lacked a quorum and must be declared illegal and void ab initio. Id. at 67 ¶ J. This would seemingly invalidate many hundreds of laws and other legislative actions, but Plaintiffs target three specific examples: the election of Paul Ryan to be Speaker of the House on January 3, 2017, 67 ¶ I, the enactment of a joint Case 1:17-cv-00793-CKK-CP-RDM Document 111 Filed 03/05/18 Page 5 of 18 2 resolution disapproving a broadband-privacy regulation on March 28, 2017, id. at 71 ¶ 10, and the passage by the House of the American Health Care Act of 2017 on May 4, 2017, id. at 75 ¶¶ 6–7.

Plaintiffs’ novel apportionment theory arises from a constitutional amendment that was proposed in 1789 but never ratified by the required number of states. That proposed amendment read:

Article the First. 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. Id., Ex. J. If ratified, this amendment would have modified the language in Article I stating that “the number of Representatives shall not exceed one for every thirty Thousand.” Art. I, § 2, cl. 3.

[Footnote: On its face, that language of Article the First does not support Plaintiffs’ position that the House is under-populated. The proposed amendment would have set a high ceiling (which the current House membership would not exceed), whereas Plaintiffs advocate a high floor. Plaintiffs contend, however, that there was a scrivener’s error in the engrossed version of Article the First and that the last instance of the word “more” in the proposed amendment should have read “less”: “. . . nor less than one representative for every fifty thousand persons.” Id. at 37–40 ¶¶ 1–8. Plaintiffs therefore urge the Court to retroactively rewrite the engrossed version of the amendment and the ratification resolutions of all those states that approved it so that they all fit what they contend to have been the “correct” language. Id. at 40 ¶ 8.]

Id., Ex. J. If ratified, this amendment would have modified the language in Article I stating that “the number of Representatives shall not exceed one for every thirty Thousand.” Art. I, § 2, cl. 3.1

Contrary to any accepted account of history, Plaintiffs claim that Article the First was fully ratified by the requisite number of states and that it is part of the United States Constitution, a fact that they say was “lost in history for over 220 years” but “will be documented and presented in detail at time of trial.” Id. at 30–31 ¶ 7. Specifically, Plaintiffs claim that they have proof that Connecticut ratified Article the First in 1789 or 1790. Id. at 28 ¶ 6. In reality, as is known, thelower house of the Connecticut legislature voted to ratify Article the First with the other eleven proposed amendments in October 1789, but the upper house did not complete the process. See Thomas H. LeDuc, Connecticut and the First Ten Amendments of the Federal Constitution, S. Doc. No. 75-96 at 2 (1937). A new legislature then took the matter back up in 1790. This time, the lower house voted to ratify only the latter ten amendments (those that are now known as the Bill of Rights) but not Articles the First and Second. Id. at 3. The upper house, however, voted to ratify all twelve amendments. Id. The matter was therefore again deferred for the next legislature. In that legislature, the lower house voted to reject all of the amendments, and the matter appears never to have been taken up again. Id.

Notably, Plaintiffs’ argument on Article the First relies not on any newly discovered documentary evidence, as they imply, but on their novel legal contention that the known actions of the Connecticut legislature as described above resulted in its ratification of Article the First. Specifically, Plaintiffs assert, without much exposition, that Article V (which governs constitutional amendments) somehow silently exempts bicameral state legislatures from acting bicamerally. Am. Compl. at 25–26 ¶¶ 1–2. Consequently, Plaintiffs say, Connecticut should be deemed to have ratified Article the First when its lower house alone voted to do so in 1789. See id. at 28 ¶ 6 (contending that the Connecticut legislature ratified Article the First “by . . . Article V standards” in October 1789). If not, then Article the First should be deemed ratified when only the upper house of a later-constituted legislature voted to do so in 1790. Id. (contending, “alternatively,” that Article the First should be deemed ratified in “May 1790 if the ‘Upper House Council’ is part of the ‘Legislature’ for Article V purposes”). In other words, Plaintiffs insist that “for Article V purposes” Connecticut’s bicameral legislature may act unicamerally when it comesto the ratification of constitutional amendments. Plaintiffs offer no legal support for this unorthodox notion.

Plaintiffs are not shy about the remedies they seek. They ask this Court to, among other things: (1) declare 2 U.S.C. § 22 unconstitutional, id. at 59 ¶ A; (2) order state officials in Connecticut, Kentucky, and Virginia to notify the Archivist of the United States that they have ratified Article the First (using Plaintiffs’ “corrected” language), id. at 36 ¶ A; (3) order the Secretary of Commerce to report to the President of the United States that the House of Representatives must contain 6,230 members according to the 2010 census, id. at 59–60 ¶ C; (4) order the President to report to the Clerk of the House that the House must contain 6,230 members, id. at 61–62 ¶ D; (5) order the Clerk of the House to report the new number of representatives to every state governor, id. at 63–65 ¶ E; (5) order state officials in each of the 50 states to hold new elections for representation in the House, id. at 65–66 ¶ F; and (6) declare each and every action by the House of Representatives of the 115th Congress illegal and void, id. at 67 ¶ J. To effectuate this wide-ranging remedy, Plaintiffs have sued several hundreds of defendants, including numerous federal officials as well as officials in each of the fifty states.

Plaintiffs’ case has lots of procedural problems as well. It does not appear to be handled by lawyers who can litigate properly before the court.

Ultimately, the question whether we should expand the House of Representatives is one for the Constitutional amendment process. Whatever else we can say on the policy question, I’m confident that the remedy is not going to be imposed by the federal courts on the country.

UPDATE. Justin Levitt writes: FWIW, this is not Mr. LaVergne’s first trip through the court system on this issue.  Earlier in this cycle, in LaVergne v. Bryson, he filed suit in federal court in New Jersey, and (before Shapiro v. McManus — or, if you prefer, Benisek I) a three-judge court was not convened.  Documents are here.



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