The act of May 23, 1850 (9 Stat. 428 ch. 11), which provided for the seventh census and for the consequent reapportionment of representation among the States, omitted the requirement that Representatives be elected from districts composed of contiguous territory.

The act of July 14, 1862 (12 Stat. 572, ch. 170) reinstated this provision. The act of February 2, 1872 (17 Stat. 288, ch. 11, sec. 2: R. S. sec. 23) repeated this provision and added the requirement that each district contain "as nearly as practicable an equal number of inhabitants."

This provision was continued until 1901, when by act of January 16, 1901 (31 Stat. 734, ch. 93, sec. 3), Congress added the requirement that the districts be "compact," so that the law now provided that Representatives "shall be elected by districts composed of contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants."

The act of August 8, 1911 (37 Stat. 14, sec. 3) reenacted this entire provision, and it remained in force until 1929.

The Reapportionment Act of 1929 (46 Stat. 26, sec. 22) omitted this provision; nor was it reenacted in the Apportionment Act of 1941 (55 Stat. 761, ch. 470), known as the Equal Proportions Act of 1941, which amends the Reapportionment Act of 1929, and which is the law in effect at present.

PRESENT LAW

The Reapportionment Act of June 18, 1929 (46 Stat. 21); as amended by the Equal Proportions Act of 1941 (55 Stat. 761, ch. 470; 2 U.S.C. 2a, 2b), as it is now in force, established an automatic procedure for the reapportionment of membership in the House of Representatives. The President was directed to submit to the 82d Congress, within a week after its convening, a statement showing the number of Representatives which each State was entitled to have on the basis of the 1950 census of population. This apportionment is to apply to the 83d and to the four succeeding Congresses or until Congress modifies the act. With the convening of the 87th Congress and of each fifth Congress thereafter, this procedure will be repeated, with apportionment to be based on the last preceding decennial census.

Within 15 calendar days after the Congress has received the President's statement, the Clerk of the House of Representatives shall submit to the Governor of each State a certificate stating the number of Representatives to which his State is entitled.

Method of equal proportions.-The method for apportionment which the law provides is "the method known as the method of equal proportions, no State to receive less than one Member."

The equal proportions computation is made by using a table of multipliers set out in Senate Document No. 304, 76th Congress. These multipliers are the reciprocals of the geometric means of consecutive integers. We do not attempt to reproduce this table here, but using this table, the process is as follows: (1) First, assign one Representative to each State, 48 in number [for provisions covering Alaska and Hawaii, see below under, Size of House Membership].

(2) Next, multiply the population of each State by a series of multipliers taken from the table. (The number of multipliers used for each State should be somewhat greater than the number of Representatives expected to be assigned to that State.)

(3) Next, arrange the resulting products in order of magnitude, beginning with the largest, to form what is known as a priority list, which indicates the order in which Representatives in excess of 48 shall be given out to the several States.

(4) Representatives are then assigned in that order, until the required total number (for example, 435) has been given out. (For details and illustrations

see pp. 6 and 7 of this Senate document.)

Size of House membership.—The membership of the House of Representatives was set at 435 by the act of August 8, 1911 (37 Stat. 14, sec. 2), and this number was reaffirmed by the act of June 18, 1929 (46 Stat. 26, sec. 22(a) (1) “the then existing number") as amended by the act of November 15, 1941 (55 Stat. 762, "sec. 22(a)"): On admission of Alaska in 1958 and Hawaii in 1959, this number was temporarily increased by 2 to a total of 437, effective only until the next reapportionment (after the 1960 census), at which time, unless amended in the meantime, the total membership of the House shall revert to the permanent figure of 435 (72 Stat. 345, sec. 9; 73 Stat., sec. 8; Public Law 85-508, 86-3).

Manner of election after apportionment.-"Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment, shall be elected in the following manner: (1) If there is no change in the number of Representatives, they shall be elected from the districts then prescribed by the law of such State, and if any of them are elected from the State at large they shall continue to be so elected; (2) if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large, and the other Representatives from the districts then prescribed by the law of such State; (3) if there is a decrease in the number of Representatives but the number of districts in such State is equal to such decreased number of Representatives, they shall be elected from the districts then prescribed by the law of such State; (4) if there is a decrease in the number of Representatives but the number of districts in such State is less than such number of Representatives, the number of Representatives by which such number of districts is exceeded shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State; or (5) if there is a decrease in the number of Representatives and the number of districts in such State exceeds such decreased number of Representatives, they shall be elected from the State at large."

The act of August 31, 1954 (68 Stat. 1012, ch. 1158) revised and codified the census provisions. Section 143(b) of this act provides for "the tabulation of total population by States as required for the apportionment of Representatives. *** However, no new provision for such apportionment has been

enacted since 1941.

Summary. In short: (1) A census shall be taken every 10 years; (2) The Department of Commerce, through the Bureau of the Census, apportions the 435 House seats (assuming no change in size of House) among the various States on the basis of the "equal proportions" method; (3) The Bureau of the Census submits these figures to the President; (4) The President submits a statement to Congress showing how many Representatives each State is entitled to have; (5) The Clerk of the House sends a certificate to the Governor of each State, stating the number of Representatives which have been allocated to his State. Since a reapportionment will probably result in a loss of House seats for some States and a gain in representation for other States, a State may then either (1) redistrict in accordance with the new number of seats allotted to her, or (2) in case of loss of certain number, elect all, and in case of gain, elect the additional Representatives at large.

CONGRESSIONAL INTENT AS TO ELECTION DISTRICTS

Congress has never attempted to district or redistrict a State. Neither has it attempted to enforce the districting provisions in the reapportionment laws which it has from time to time enacted. This has been left to the several States to accomplish.

It would appear that in the Equal Proportions Act of 1941 (55 Stat. 761, ch. 470), now in effect, Congress has evidenced its intention to leave redistricting to the States. Thus, in subparagraph "(c)" of this act (55 Stat. 762) the provision reads: "Until a State is redistricted in the manner provided by the law thereof after any apportionment ***." And further in the same subsection, the word "districts," wherever it appears, is always followed by the phrase, "then prescribed by the law of such State."

The question of redistricting has twice come before the House of Representatives in the form of contested election cases. In Davison v. Gilbert (1901), Rowell, Digest of Contested Election Cases in the House of Representatives, 17891901, p. 627, the House held it to be "not politic" to deny a seat to a candidate on the ground that the district which elected him was illegally constituted. In Persons v. Saunders (1910), Moores, Digest of Contested Election Cases in the House of Representatives, 1901-17, p. 43, the House took no action, despite the recommendation of its committee that a Virginia redistricting act be held void as violating the reapportionment law.

INTERPRETATION BY THE COURTS

The provisions of the Reapportionment Act of August 8, 1911 (37 Stat. 13 ch. 5), requiring that congressional election districts be of contiguous and compact territory, and, as nearly as practicable, of equal population, related only to districts to be formed under that act. They fell with the apportionment to which they

expressly related. The act of 1929 as amended by the act of 1941 contains no provisions to that effect. It was manifestly the intention of the Congress not to reenact these provisions as to compactness, contiguity, and equality in population with respect to the districts to be created pursuant to the reapportionment under the act of 1929, as amended. Wood v. Broom (1932), 287 U.S. 1, 7; Colegrove v. Green (1946), 328 U.S. 549, 551.

The Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular House and left to that House determination whether States have fulfilled their responsibility. Colegrove v. Green, supra, p. 554. If a State selects its Representatives by a mode that defies the direction of Congress for selection by districts, the House many not acquiesce. In the exercise of its power to judge the qualifications of its own Members, the House may reject a delegation of Representatives at large. Id., p. 553.

Suits to enforce a fair apportionment of representation, based on the equal protection and due process clauses of the 14th amendment, have generally been dismissed by the Supreme Court on the ground that the peculiarly political nature of the cases rendered them not appropriate cases for judicial determination. South v. Peters (1950), 339 U.S. 276; MacDougall v. Green (1948), 335 U.S. 281; Colegrove v. Green (1946), 328 U.S. 549; and others.

Lower Federal courts appear to follow Supreme Court rulings and refuse to adjudicate apportionment cases. Remney v. Smith, 102 F. Supp. 708 (E. D. Pa., 1951), appeal dismissed (1952), 342 U.S. 916; Turman v. Duckworth, 68 F. Supp. 744 (N. D. Ga.), appeal dismissed (1946), 329 U.S. 675; and others.

PROBLEMS OF REAPPORTIONMENT

Size of House membership.-Every 10 years, after a decennial census, when the time comes for Congress to make a reapportionment of the House representation, the size of the House of Representatives becomes an issue. Unless the House membership is enlarged, it is inevitable, with the continual shifting of our population from State to State, that some States will lose one or more seats. These States, in order to maintain their numerical representation, strenuously advocate an increase in the number of seats. After the 1950 census, nine States lost representation (Arkansas, one; Illinois, one; Kentucky, one; Mississippi, one; Missouri, two; New York, two; Oklahoma, two; Pennsylvania, three; Tennessee, one, and seven States gained (California, seven; Florida, two; Maryland, one; Michigan, one: Texas, one; Virginia, one; Washington, one) (see 97 Congressional Record 115). Representatives of the losing States introduced various proposals to enlarge the House membership.

H.R. 38 (82d Cong.) in order to reduce the individual losses, and yet preserve the gains, sought to enlarge the House to 450 members. Another proposal, although not introduced as a bill, was to save the seats of all present members and reward the faster growing States by adding 74 new seats, making the membership total 509 (97 Congressional Record A1386, col. 3).

Those in favor of enlarging the House membership argue that the ratio under the several apportionments has changed to such a degree that the House is no longer truly representative of the people. Consequently, they claim, the average Member's constituency has grown so large that the Member is rapidly losing personal contact with the people who elected him and is becoming less and less responsive to their needs.

It is therefore of interest to see what this ratio has been under each census and we reproduce a table which appears, in part, at 60 Congressional Record 1627, and in part in the Statistical Abstract of the United States, 1956, table 406, p. 341.

There

Those who oppose enlargement of House membership argue that in order to restore the intimate contact with his constituents which each member enjoyed in the early days of our Republic, the House would have to be expanded beyond all reasonable bounds. Some limitation on size would have to be set. fore it may as well remain as it is at present. Besides, the faster means of travel and our new communication facilities such as the press, radio, and television, not to omit the telephone, make it easier for a Member to keep in touch with his district today than a hundred years ago.

Although there has been much debate on the subject, the membership of the House has not been altered since 1911 and now remains at 435 (for provisions concerning Alaska and Hawaii, see above, under "Size of House Membership). Methods of apportionment.-It has been a source of debate in Congress in every decade, to find a satisfactory method of computation which will put each State as nearly as possible on a par with every other State in the apportionment of Representatives. Using the 1950 ratio as an illustration, if one Representative were to be allocated to each unit of 345,000 people, a State having 900,000 people would be entitled to 2 seats. This would leave 210,000 people still to be represented. How should this be solved?

Many methods have been tried through the years, from the Daniel Webster plan of 1832, through the method used in 1840, the Vinton method used from 1850 to 1900, to the method of "major fractions" devised by Professor Wilcox in 1910. This method selects a ratio, divides this ratio into the population of the State and assigns the additional Representatives according to major fractions, disregarding every minor fraction. Using the same illustration as above, if the "major fractions" method were used after the 1950 census, that same State with a population of 900,000 would be allocated 3 seats, since 210,000 would be a major fraction of 345,000.

In 1920, Congress failed to make a reapportionment. In 1930, both the "major fractions" method and the “equal proportions" method (explained in detail above) were submitted to Congress. Since in that year both methods yielded identical results, no dispute arose over the method used. In 1940, however, a controversy did arise. It was found that the use of "major fractions" gave Michigan 18 seats and Arkansas 6, whereas by the "equal proportions" method Michigan would be alloted 17 seats and Arkansas 7. As a result of this controversy, Congress amended the law in 1941 to direct that only the “equal proportions" method be used. It was decided that this method "leads to an apportionment in which the ratios between the representation and the population of the several States are as nearly alike as is possible. It thus complies with the conditions imposed by a literal interpretation of the Constitution" (67 Congressional Record 7078, col. 2). This method equalizes as far as possible the congressional districts belonging to the several States and also the "individual shares" belonging to the several States, inequalities being measured on the basis of relative differences. In fact, the method of equal proportions may be defined as the only method which will apportion a given number of Representatives among the several States, so that the ratios of population to Representatives, and also the ratios of Representatives to population, shall be as equal as may be among the several States (S. Doc. 304, 76th Cong., p. 6).

The gerrymander.-Since the present law establishes no standards for districting, leaving it to the States to set the geographic boundaries of their congressional districts by local law it has become possible for a State to divide into districts with such a geographical arrangement as to accomplish what is claimed by some to be an unlawful purpose, as for instance, to secure a majority for a given political party in districts where the result would be otherwise if divided according to obvious natural lines. Thus, after a redistricting shortly before election, a Congressman may find one day that his State legislature has thrown him into a new constituency, much of which is new territory to him, and that this was done so close to the ensuing election that insufficient time remains for a proper campaign for reelection either from this new district or from the old district in which he no longer resides. A Member thus becomes dependent upon his political party to aid him in his reelection, a situation which may subject him to the control of the party leaders whose aid he might thus need. This may hamper his freedom of action in the House. The gerrymander, as this process of redistricting is known, would naturally result, over the years, in a widespread discrepancy between the populations of the various congressional districts. The President, in his message of January 9, 1951 (97 Congressional Record 114) transmitting his reapportionment figures to Congress after the 1950 census, pointed out that this wide discrepancy already exists, and that in many States there are

differences of 200,000 or 300,000 people between the smallest and largest districts, and that in one State the smallest district showed a population of 175,000 as against a population of 900,000 in the largest district.

Proposals for improvement.-The President, in this message of January 9, 1951, advocated legislation, supplemental to the permanent legislation on this subject, which would provide the States with standards for establishing congressional districts. He further suggested that Congress indicate its interest in the compliance with such standards.

H.R. 2648 (82d Cong.) proposed that each State establish a congressional district for each Representative, to be composed of contiguous and compact territory, allowing for a difference of not more than 15 percent between the populations of the various districts. The House would enforce this bill by denying a seat to any Representative elected from a district not conforming to the bill's requirements. This bill was again introduced in the 83d Congress as H.R. 6428. H.R. 2799 (82d Cong.) proposed that it be unlawful to design any congressional district in any State in any other geographical form than a rectangle or as nearly thereto as possible, and that those responsible for the continuance of gerrymandering be made liable to individual fines of up to $100,000.

None of these proposals were enacted into law and as of this date, Congress has as yet established no standards by which a State must guide itself in redistricting.

CONCLUSION

Although Congress appears to have the power to redistrict the States to meet changes in apportionment of Representatives, it has never exercised this power. The Federal law in effect at present does not require a State to redistrict following each reapportionment which changes the number of Representatives to which such State is entitled. While the law indicates that Congress contemplated that election of Represenatives shall be by districts to be prescribed by State laws, Congress has set no standards which the States must follow in prescribing such districts.

The Supreme Court and the lower Federal courts appear disinclined to grant relief in cases where it is charged that a State's redistricting laws do not achieve the fair representation of its population in Congress and flout the congressional intent thereon. However, as the Supreme Court has pointed out, should Congress decide that a State has elected Representatives to Congress in a manner which violates Federal law, the House may refuse to seat such Representatives.

U.S. DEPARTMENT OF COMMERCE,

BUREAU OF THE CENSUS, Washington, D.C., June 30, 1960.

BACKGROUND FOR CONGRESSIONAL APPORTION MENT-THE ROLE OF THE BUREAU OF THE CENSUS

When the 88th Congress convenes in January 1963, the number of Representatives from about half of the States will have changed from the number in the previous Congress. In this report, the manner of determining these changes will be described. The changes are made by following a clear and precise procedure resting on the determination of

(a) The total size of the House of Representatives; and

(b) The method of assignment of Representatives among the States. Both of these determinations have been made by previous Congresses. If the 87th Congress does not change the law after receiving from the President a report with calculations based on these determinations, it makes, in principle, the basic decision to accept the determinations made by previous Congresses.

THE APPORTIONMENT PROCEDURE

The steps in determining the number of Members to be seated in the House of Representatives from each State has been specifically outlined by act of Congress. The steps and timing start with the enumeration of the inhabitants provided for in article 1, section 2 of the Constitution. The enumeration, the decennial census of population, determines the number of persons in each of the States on the basis of which the apportionment calculations are made.