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Lavergne v. United States House of Representatives

United States District Court, District of Columbia

June 11, 2019

EUGENE MARTIN LAVERGNE, et al., Plaintiffs,
v.
UNITED STATES HOUSE OF REPRESENTATIVES, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

         Plaintiffs have a bold theory. For more than two centuries, our nation has been operating under the following upper and lower bounds on the number of seats Congress may constitutionally authorize in the House of Representatives: "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." U.S. Const, art. I, § 2, cl. 3. Acting within that range, Congress a century ago settled on 435 House seats. But plaintiffs say that we have overlooked a valid constitutional amendment that requires something different. They urge this court to recognize that the Constitution mandates "not. . . less than two hundred representatives, nor less than one representative for every fifty thousand persons"-a framework that would by now mandate well over six thousand House seats. They date the wrong turn to a failure to recognize that an amendment to the Constitution proposed in 1789 as "Article the First" was, they believe, validly ratified by 1792 at the latest.

         In 1789, Congress proposed twelve amendments to the Constitution. Ten of them were promptly ratified by the states and are now known as the Bill of Rights. Much later, in 1992, the states completed their ratification of one more of those proposed amendments, "Article the Second," and the Archivist of the United States so certified. But the states never ratified the first proposed amendment, Article the First-at least, neither Congress nor the Archivist ever thought they did. Plaintiffs now claim that the states in fact did validly ratify Article the First in the eighteenth century. They accordingly ask this court to order that Congress is constitutionally required to add at least 5, 795 seats to the House of Representatives and apportion them among the states, and to invalidate legislation Congress enacted without the requisite 3, 116-member quorum.

         Defendants have moved to dismiss, raising several defenses. We reach only two: We hold that plaintiffs' Article-the-First challenge depends on a nonjusticiable political question, and that the one plaintiff who additionally attacks the federal apportionment statute, 2 U.S.C. § 2a, has failed to establish his standing.

         BACKGROUND

         A. Article the First and the Apportionment Statute

         In 1789, Congress approved and sent to the states for ratification a constitutional amendment-Article the First-that, according to historical consensus, was never ratified by three quarters of the states. In plaintiffs' view, that consensus is mistaken. They contend that Article the First was ratified in 1790 and thus binds us today. They further claim that the version of Article the First that Congress sent to the states for ratification included a scrivener's error that we must now correct. If Article the First were ratified, and if it were also "corrected" to require "no[t] less"-as opposed to more-"than one representative for every fifty thousand persons," plaintiffs assert, the current House of Representatives would need to have at least 6, 230 members to represent the United States population of more than three hundred million. If the "corrected" Article the First had been ratified when plaintiffs contend it was, countless congressional actions long accepted as binding would have lacked the requisite quorum.

         Plaintiff Neuman filed a supplemental challenge to the apportionment statute, 2 U.S.C. § 2a. Section 2a addresses how representatives are to be divided among the states and, if the number of Representatives changes, how they are to be assigned to the existing congressional districts until redistricting occurs. Section 2a, Neuman asserts, violates the separation of powers and the principle of "one person, one vote."

         Without Article the First, the Constitution provides that seats in the House of Representatives "shall be apportioned among the several States . . . according to their respective Numbers," and that "[t]he Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative." U.S. Const, art. I, § 2, cl. 3; see also U.S. Const, amend. XIV, § 2. Before the 1920s, Congress determined the precise number and apportionment of representatives after each decennial census, in accordance with Article I, section 2 of the Constitution. Following the 1920 census, however, Congress deadlocked and failed to pass a new apportionment. To avert future deadlock, Congress enacted a formula to automatically apportion representatives after each census. See 2 U.S.C. § 2a. The apportionment statute provides that, based on the census results, "the President shall transmit to the Congress a statement showing the whole number of persons in each State . . . and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions, no State to receive less than one Member." Id. The "then existing number" of representatives was and is 435, see Apportionment Act of 1911, Pub. L. 62-5, 37 Stat. 13; Reapportionment Act of 1929, 46 Stat. 21, § 22, and the method of equal proportions divides the representatives amongst the states according to their relative populations, see United States v. Montana, 503 U.S. 442, 455-56 (1992). As a result, the House of Representatives currently has 435 members, apportioned based on the relative populations of the states, with at least one representative from each state.

         Article the First would have set different benchmarks for the ratio between the national population and the number of representatives in Congress, as follows:

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.

Am. Compl. 156 (Ex. J) (Acts Passed at a Congress of the United States of America (Francis Childs and John Swaine, publishers)). That is the text that Congress proposed to the states for ratification. See Appendix, Proposed Amendments to the Constitution, in A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, at 96 (copy of proposed amendments from appendix to Senate Journal).[1] Plaintiffs, however, believe that Article the First should say something slightly-but significantly-different. As they would have it, the Article's final clause was meant to require no "less than one representative for every fifty thousand persons," rather than no "more'' Am. Compl. 37-39, ECF No. 4.

         Some context is needed to understand that contention. Before Congress proposed the twelve draft amendments to the states for their ratification, it debated them and made some alterations. The version of the amendment memorialized in an August 24, 1789, House resolution did say "less" in one place where the version sent out for ratification ultimately said "more"-in the very last clause, shown below as the fourth to last word in the penultimate line (printed with the following line breaks in the engrossed version):

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 less than one Representative for every fifty thousand persons.

Am. Compl. 145 (Ex. G) (emphasis added); see also Journal of the Senate (September 9, 1789), in A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, at 76-77 (concurring in the House's resolution). The next month, the Conference Committee, in its report to the House and Senate, stated that "it would be proper for both Houses to agree to amend the first Article, by striking out the word 'less' in the last line but one and inserting in its place, the word 'more,' and accordingly recommend that the said Article be reconsidered for that purpose." Am. Compl. 150 (Ex. H). That same day, the House resolved "that the first article be amended by striking out the word 'less,' in the last place of the said article, and inserting, in lieu thereof, 'more.'" Of Debates in Congress, in A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, at 948; accord Am. Compl. 153 (Ex. I). The Senate concurred in the amendments the following day. See Journal of the Senate (September 25, 1789), in A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875, at 88. The change was thus made, and Congress sent the version of Article the First so amended-the first version we quote in full above, on page 4-to the states for ratification.

         According to plaintiffs, however, the "lines" Congress referred to were not the lines of text on the page; rather, they say, Article the First comprised only three "lines," each of which corresponded to a phase of apportionment, like so:

[Line 1] After the fi[r]st 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, [Line 2] 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; [Line 3] after which the proportion shall be so regulated by Congress, that ...

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