MEMORANDUMS THE LIBRARY OF CONGRESS LEGISLATIVE REFERENCE SERVICE APPORTION MENT OF MEMBERSHIP IN THE HOUSE OF REPRESENTATIVES (A Memorandum on Redistricting) By Mollie Z. Margolin, American Law Division, September 18, 1959, Washington, D.C. POWER OF CONGRESS The power of Congress to control State redistricting stems from article I section 4 of the U.S. Constitution, which provides: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to Places of Chusing Senators." Article I, section 2, clause 3, and amendment XIV, section 2, impose upon Congress the duty to arrange for a census of the population every 10 years, and for an apportionment of representation among the States on the basis of such decennial enumeration. Since the Constitution uses the word "persons" when referring to the population, this has been interpreted as including all persons, noncitizens as well as citizens, and the population figures used for reapportionment today include aliens. Several bills have been introduced in Congress calling for an amendment to the Constitution which would exclude aliens from this enumeration, but they have all failed of passage. HISTORY OF FEDERAL LEGISLATION The first act passed by Congress which called for election of Representatives by districts was the act of June 25, 1842 (5 Stat. 491, ch. 47). At that time, although 17 States were already electing their Representatives by districts, the remaining 9 States elected all their Representatives at large. It was argued that these nine States were in a better position to elect all their Representatives of one political party and thereby to maintain a position of strength in Congress on any partisan matter. It was further claimed that the views of the minority in a State which elected its Representatives at large were unrepresented in Congress, even though their aggregate numbers might be only slightly less than that of the majority. To remedy this, Congress enacted the act of June 25, 1842. This act apportioned Representatives among the several States according to the sixth census, and provided "That in every case where a State is entitled to more than one Representative, the number to which each State shall be entitled under this apportionment shall be elected by districts composed of contiguous territory equal in number to the number of Representatives to which said State may be entitled, no one district electing more than one Representative." This requirement "was recommended by the wisdom and justice of giving, as far as possible, to the local subdivisions of the people of each State, a due influence in the choice of Representatives, so as not to leave the aggregate minority of the people in a State, though approaching perhaps to a majority, to be wholly overpowered by the combined action of the numerical majority, without any voice whatever in the national councils." 1 Kent, Commentaries (12th ed., 1873), 230–31, n (c). 177 |