The following is presented as part of The Columbian’s Opinion content, which offers a point of view in order to provoke thought and debate of civic issues. Opinions represent the viewpoint of the author. Unsigned editorials represent the consensus opinion of The Columbian’s editorial board, which operates independently of the news department.
Avoter in Washington may have better representation in Congress and the Electoral College than a voter in Idaho but worse representation than a voter in Montana.
The problem is built into the system that has worsened over the last century.
At least, that’s the argument Spokane attorney William C. Schroeder hopes to make to the U.S. Supreme Court.
After losing the argument in the U.S. District Court in Spokane last September and the 9th U.S. Circuit Court in Seattle last month, this might seem like a large windmill at which to tilt.
But Schroeder last week finished his petition for certiorari – a request for the nation’s highest court to take up an issue that has its roots in the founding of the republic: How does the country fairly divide seats in the U.S. House of Representatives among states with huge differences in population?
Schroeder said he came across the problem when talking to his son about some basics in American government.
When the Constitution was ratified in 1788, the House had 65 members, with each state having at least one, and the text of the Article I spelling out which of the original 13 states would have more so that each member would represent about 30,000 people.
The Founding Fathers clearly anticipated the number of House members and the number of people they represented would both have to grow, and included a formula for making the changes in the proposed Bill of Rights. It was one of the amendments that was not ratified by the states.
After the 1790 Census, as Schroeder lays out in his lawsuit, the number of representatives went to 105 and the number represented went to 33,000. Every 10 years after that, as the nation’s population grew and states were added, Congress would adjust the number of representatives and, after the 1810 Census, the number of people represented by each member.
In 1929, Congress passed a law that capped the number of representatives at 435. After the 1930 Census, the formula that divided a set number of House seats among a growing population – after subtracting for the requirement that each state have at least one member – meant the average number of people represented would always go up, and the gap between the states with the most and least people represented would grow.
After the 2020 Census, the average number of people represented by a House member was about 761,000. Washington is close to that, with 10 districts that average about 771,000 people. But Montana, which just barely qualified for two House members, averages about 543,000 per district; Idaho, which didn’t quite qualify for a third representative, averages about 921,000 per district.
Schroeder is not the first person to file a claim challenging disparities among the size of House districts. States and individuals have raised objections over the decades, and the U.S. Supreme Court generally has refused to intervene.
But Schroeder’s case raises an issue that he hasn’t seen in any previous dismissal. It involves the intersection of the apportionment of House seats and the selection of the president by the Electoral College.
Each state’s House representative seat provides one vote in the Electoral College. Schroeder is arguing that the wide variation in the number of people that make up a House district also means that some people in some states have more say in the Electoral College than others. Comparing the three Northwest states, an elector from Idaho represents about 150,000 more people than Washington, who represents about 228,000 more people than an elector from Montana.
“I’m hoping that is new enough that maybe the Supreme Court will be interested,” he said. “If you don’t have a relatively similar population between districts, the Electoral College is more like a lottery.”
If the court agrees with his arguments, Congress could be required to expand the number of representatives, which would also expand the Electoral College to make it more representative of the country as a whole.
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