National Journal



Scharpened Point

Monday, Sept. 21, 2009
by Mike Magner

Last Thursday was Constitution Day, and Scott Scharpen could think of no better way to celebrate than by filing a federal lawsuit challenging the apportionment of representatives in Congress.

The former healthcare consultant who lives in Wildomar, Calif., southeast of Los Angeles, has been troubled by the population imbalance among congressional districts since early last year, when he was researching the Constitution to prepare lessons for his kids.

"In the course of reading Article 1, Section 2 ["Representatives shall be apportioned among the several States according to their respective numbers..."], I was struck by how disproportionate the districts have become," Scharpen said.

With the nation's "apportionment population" at 281.4 million in 2000, the "ideal" population for each of the 435 congressional districts would be 646,952, according to the lawsuit filed Thursday by Apportionment.US Inc., a nonprofit founded by Scharpen last year. (Of course, with population growth since the 2000 Census, that average number has only increased in size.)

Yet the districts range in size from approximately 500,000 residents in the Wyoming at-large district to nearly 950,000 in Montana's at-large district, the suit contends. Five states with the least populated districts -- Wyoming, Rhode Island, Nebraska, Iowa and West Virginia -- have "significant over-representation," while the five with the most populated districts -- Montana, Delaware, South Dakota, Utah and Mississippi -- have "significant under-representation," it argues.

The suit says the disparities are caused by a law limiting the House to 435 members, and argues that the provision "is unconstitutional, egregiously violating the well-established principle of 'one person, one vote' affirmed in multiple Supreme Court decisions."

And the plaintiffs in the case, registered voters from each of the five most under-represented states, say the solution is simple: Make the districts smaller and increase the number of lawmakers. If each district averaged 159,809 people, for instance, there would be 1,761 representatives. Or if each district had an average population of 301,957, there would be 932 members in the House.

The suit was filed in the U.S. District Court for the Northern District of Mississippi, where plaintiff John Tyler Clemons lives in Oxford, and it names Commerce Secretary Locke, Census Bureau Director Robert Groves and Clerk of the House Lorraine Miller as defendants.

Michael Farris, the lead attorney for the plaintiffs who is also chancellor of Patrick Henry College in Purcellville, Va., said there have been previous lawsuits over apportionment, including a case in Montana that went to the Supreme Court. But unlike this suit, other plaintiffs have lost because they failed to offer solutions, he said.

"If the case is decided on the law, and the law alone, we win," Farris said.