House of Representatives

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States....

Article I, Section 2, Clause 1

Three issues—length of terms, equal versus proportional representation of states, and method of selection—dominated the Constitutional Convention's debate over the makeup of the House of Representatives. They each were resolved in the language of Article I, Section 2.

The two-year term of office for the House was a straightforward compromise between those who preferred annual elections and those who favored a longer, three-year term. The original Virginia Plan envisaged that both branches of the federal legislature would be directly or indirectly accountable to "the People." In the end, however, the Convention determined that the states would be represented in the Senate and the people in the House of Representatives. During the debate over equal or proportional state representation in the House, several delegates, notably James Wilson, James Madison, and George Mason, argued for population as the just basis of apportionment. That later became conflated with the related but distinct question on the manner of selection.

What the Framers intended in providing for election "by the People" can be better understood in terms of the alternatives that they rejected. The Committee of the Whole vigorously debated and discarded a counter resolution that the House be selected by "the State Legislatures, and not the People." Elbridge Gerry suggested that Members be selected by state legislatures from among candidates "nominated by the people." Another compromise, proposed by Charles Cotesworth Pinckney, provided for the House to be selected "in such manner as the legislature of each state shall direct." Against these proposals, Madison and Wilson argued that selection by the people was necessary to link citizens directly to the national government and to prevent the states from overpowering the central authority. Article I, Section 2, secured direct popular election of the House.

The scope of the phrase "by the People," however, was neither debated nor defined at the Convention. It appears to have meant the direct popular election with a relatively broad right of suffrage as determined by the states' own practices. Madison described electoral accountability to the people as "the republican principle." The Federalist No. 10. Responding to charges that the House would not represent "the mass of the people," Madison argued in The Federalist No. 57 that "the electors are to be the great body of people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State." Leading Anti-Federalists, such as Melancton Smith and the anonymous Brutus, used the term in a similar fashion, affirming the broadly accepted meaning. Thomas Jefferson defined "the People" as no particular class but, rather, "the mass of individuals composing the society."

Comments at both the Convention and at state ratifying conventions indicate substantial support for the general proposition that Representatives should be apportioned in a manner roughly equal to population. Nevertheless, it seems evident that the delegates did not intend to place any particular principle, such as "one person, one vote," into the Constitution. "One person, one vote" was not the norm in the states at the time of the Convention. Although most states established districts roughly according to population, none came close to the "one person, one vote" standard. Geography, history, and local political boundaries cut against equally populated districts. Similarly, in the Northwest Ordinance of 1787, Congress provided for up to one Representative per 500 persons, but based on townships and counties. Furthermore, besides the celebrated compromise providing each state with equal representation in the Senate, the Constitution specifically grants each state, no matter how small its population, one Representative in the House.

The Constitution, however, does not require Representatives to be elected by districts. In the beginning, many states had their Representatives elected at large. If a state chose its Representatives at large, then they were more likely to speak with one voice, thus increasing the influence of the state in the House of Representatives. Congress then responded by requiring states to elect its Representatives by district. For a brief time, some states required their Representatives to reside in the district from which they were elected, but that requirement no longer exists.

There was a limit, however, to what the states could do in fashioning congressional districts. The Framers did, in fact, disapprove of "rotten boroughs" in Great Britain, districts with no more than a few inhabitants that nevertheless held seats in Parliament equal, in some cases, to large cities. But they decided to address inequities in representation by leaving it to Congress's discretion to "alter" the "Times, Places, and Manner" of choosing Members. (See Article I, Section 4.) Madison argued that this clause was a necessary safeguard against state-created inequalities in federal representation.

For most of the nation's history, Section 4 was indeed held to be the sole remedy to malapportionment. However, in the early twentieth century, rural state legislators in many states simply stopped redistricting in order to avoid transferring power to more populous urban areas. In 1962, the Supreme Court held in Baker v. Carr that such questions were justiciable in the courts. In Wesberry v. Sanders, decided in 1964, the Court held that Article I, Section 2, mandated that congressional districts be equal in population "as nearly as is practicable." In doing so, the Court relied heavily on statements made at the Convention in favor of representation according to population. These comments, however, were made during debate over the proportional representation of the states in Congress, not the manner in which Representatives would be selected according to the first paragraph of Article I, Section 2. Nevertheless, later that year, in Reynolds v. Sims, the Court extended the doctrine of "one person, one vote" to state legislatures, based on the Equal Protection Clause of the Fourteenth Amendment. In Lucas v. 44th General Assembly of Colorado, decided the same day as Reynolds, the Court applied the equal population rule to a state districting plan the state's voters had specifically approved, including a majority of voters in those parts of the state underrepresented by the plan.

The Court has since held to the principle of precise mathematical equality when congressional districting is at issue. Most notably, Karcher v. Daggett (1983) struck down a New Jersey plan in which the average district population variation was 726 people, or 0.1384 percent, a difference well within the believed margin of error in the census count. State redistricting plans, scrutinized under the Fourteenth Amendment rather than Article I, have been granted more leeway. The Court has upheld state legislative districts with population variances up to ten percent with no state justification at all, Gaffney v. Cummings (1973), and variations to nearly twenty percent are permissible where the state demonstrates a rational basis for its plan, such as drawing districts to follow municipal lines. Mahan v. Howell (1973). Consideration of group or economic interests is not, however, an accepted justification. Swann v. Adams (1967).

The Court has also applied the "one person, one vote" rule to local governments. Avery v. Midland County (1968). In a few limited circumstances, however, where the entity in question does not exercise "a traditional element of governmental sovereignty," as in the case of a water storage district, the Court has not required the "one person, one vote" rule. Ball v. James (1981).

In recent years, the reapportionment decisions have drawn renewed scholarly attention. Critics claim that they have inhibited the formation of regional government consortiums to deal with metropolitan-wide problems; removed traditional constraints on gerrymandering, such as adherence to political jurisdictions or geographic regions; and imposed a particular theory of representation on the states and Congress that is not grounded in the Constitution. Critics also note that equal population does not correspond to an equal number of voters, due to differing numbers of children, immigrants, and other nonvoters in a district. Thus votes are still not weighted equally. Nonetheless, the standard of "one person, one vote" remains Supreme Court doctrine, and there is little evidence that the Court is prepared to reassess its jurisprudence in the area.

Bradley Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School