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Spin Control: Does how much your vote for Congress and president count depend on where you live?

The U.S. Supreme Court on Oct. 22, 2020, in Washington, D.C.  (Samuel Corum/Getty Images North America/TNS)

An individual voter in Washington arguably has 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 arguably 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 first came across the problem when talking to his son about some basics in American government: Presidents are elected to four-year terms; senators are elected to six-year terms, and each state has two. Representatives are elected to two-year terms, and the country has 435.

Why 435, his son asked?

“I realized I didn’t know the answer to that,” he said, and began doing a bit of research. What he discovered turned into a lawsuit that asked the courts to bring more fairness to that system.

“It’s a mildly expensive hobby,” Schroeder said, maybe a few thousand dollars for filing and printing costs because he does his own legal work pro bono.

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.

“I don’t think they knew for certain … how quickly the country would start growing,” Schroeder said.

Fun Fact: A House representation apportionment amendment was actually the first one listed in the proposed Bill of Rights, with restrictions on pay raises for members of Congress placed second. People who suggest the Founders considered freedom of speech, religion, the press and assembly so important they made it first, and the right to bear arms as the second to protect the first, don’t know what they’re talking about.

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.

By 1911, when the country had 46 states and the previous year’s census said the country had more than 92 million people, Congress raised the number of representatives from 386 to 433. The average number of people represented was about 210,000, but the smallest number was about 81,000 by Nevada’s single house member, and the largest number was 228,000 in Washington’s five districts. When New Mexico and Arizona were added as states the next year, each got a single representative – which was standard practice for a new state – until the 1920 Census was conducted.

By then, the nation’s population was up to 106 million. Congress struggled to reapportion the seats and failed at several attempts. The number of representatives remained at 435, and the number of districts for each state remained the same, which meant the number of people represented by a member varied between about 76,000 in Nevada and 360,000 in New Mexico.

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.

That number of 435 seats only changed briefly in 1959 when Alaska and Hawaii became states and each got one House member until the 1960 Census was completed. Then the number returned to 435, and the numbers of districts within the states were readjusted.

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 legal 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. Because of that, he expected the district and 9th Circuit to dismiss the cases based on those rulings.

“You have to take your lumps” and expect dismissals on the way to the high court, he said.

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.”

The request for certiorari requires that the appeal states new questions for the court to resolve. In his appeal, Schroeder asks the court to decide whether the wide range in the numbers in different states’ congressional districts violates that Constitution’s requirement that House members “be elected from constituencies comprised of approximately the same number of residents,” and whether the Constitution’s rules for setting up the Electoral College based on the number of senators and House members requires the number of electors “assigned each state is determined by each state’s respective population.”

If the court agrees, 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. Theoretically, that could be easier than amending the Constitution to allow for direct election of presidents through popular vote or addressing the imbalance between the electors for the two senators from a large state like California, with almost 40 million people, and a small state like Wyoming, with fewer than 580,000 people.

The nation’s highest court only takes a small fraction of the appeals filed, so the request will have to catch the interest of a clerk or a justice who is going through the large pile of requests, Schroeder said. But he’s read some decisions, concurrences and dissents by Justice Clarence Thomas and Chief Justice John Roberts on other cases that suggest they might have an interest for taking up the question that involves Congress and the Executive Branch, which supplies the census data, and the Electoral College.

“The courts explain what the law is,” Schroeder said. “Maybe the Supreme Court would be interested in telling us what the law is here.”

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