Getting the Math Right: Why California Has Too Many Seats in the House of Representatives

Abstract

Over the last 40 years of one person, one vote jurisprudence, the Supreme Court has distilled a stable and predictable test for resolving the basic numerical issue in equal representation: how much population difference between districts is permissible? Yet there remains one area of representation into which the Court has refused to venture: apportionment of Congress. In its only opinion on the mechanics of the decennial of apportionment, the Court deferred to Congress. It deferred because, unlike districting, it could not find a single workable measure for apportionment. But the reason it could not find such a measure was that it had made a mathematical error.

This Article corrects that mistake and, in the process, shows that the measure of representation for districting should be applied to apportionment. The result is a unified approach to measuring and evaluating disparities in these two types of representation.

This unified approach leads to a method of apportionment unlike any used in United States history. In particular, it would mean three fewer representatives from California and one more from each of South Dakota, Delaware, and Montana, among other changes. In general, it would mean larger states lose representative and smaller states gain. Overall, however, my proposed apportionment method better implements the Court's unwavering adherence to the principle of equal representation.