JACKSON, Miss. – A federal lawsuit that seeks to double or even quadruple the size of the U.S. House argues that citizens in Mississippi and four other states don’t have enough representatives while Wyoming, Rhode Island and a few others get too many.
Three federal judges in Oxford, Miss., will hear arguments Friday in the lawsuit by a homeschooling activist and conservative attorney that challenges the way the 435 House seats are divided among the 50 states.
The suit, considered a long-shot by some experts, was filed against U.S. Commerce Secretary Gary Locke, whose department oversees the Census; Census Bureau director Robert Groves and others.
It claims the principle of one-person, one-vote is violated because congressional districts vary widely in population from state to state. It cites 2000 Census figures showing 905,316 people in Montana’s single House district and 495,304 people in Wyoming’s only district.
“It takes 183 voters in Montana to equal 100 voters in Wyoming,” the suit says.
The Justice Department says it’s the duty of Congress, not the courts, to decide how many seats are in the House. A similar suit was tossed out in federal court in New York in 1983, and experts think this one’s chances are not good either.
“I don’t think it’s going anywhere. I’m surprised that they’re hearing it,” James Thurber, founder and director of the Center for Congressional and Presidential Studies at American University in Washington, said Wednesday.
Plaintiffs say adding House seats would make it easier to create districts roughly balanced by the number of residents. The lawsuit suggests expanding the House to either 1,761 seats or 932 — an expensive, time-consuming and politically contentious proposal.
Attorney Michael Farris filed the suit on behalf of people in states with high-population congressional districts and said he’d like to see Congress expanded soon after the 2010 Census is completed. He said he recruited friends and friends of friends to be plaintiffs, and the lawsuit is not an academic exercise.
“We’re very serious and we think that we’ve got a good chance,” Farris said this week.
Farris is a Washington, D.C., lawyer active in the homeschool movement and chairman and chancellor of Patrick Henry College, a Christian college founded 10 years ago in Purcellville, Va. He said many of the plaintiffs are former homeschooled students, now in college, who live in states he believes are underrepresented in Congress.
Farris said he filed the suit in Mississippi because it is one of the underrepresented states. The lead plaintiff is John Tyler Clemons, who was a University of Mississippi student when the suit was filed last fall.
The Census Bureau counts the U.S. population every 10 years, and congressional districts are readjusted. Some states gain or lose seats, depending on how population has shifted.
The number of House seats has increased since 1787, when the Constitution set the original number at 65. For most of the past century, there have been 435 seats divided among the 50 states.
Justice Department attorneys wrote in court papers that the Constitution requires each state to have at least one representative, and Congress has the power to determine how many seats are in the House.
Assistant Attorney General Tony West and others representing the government wrote that a similar challenge was dismissed in 1983, and that this lawsuit seeks “to restructure an entire branch of the federal government at its most fundamental level. Courts lack the power to do so.”
Matt Steffey, a constitutional law professor at Mississippi College School of Law in Jackson, said the lawsuit is a long shot and “all the stars would have to align” for the plaintiffs to persuade judges to expand the House.
“A federal judge, even a panel of federal judges, is going to be very reluctant to get involved in what would be reapportionment with nationwide implications,” Steffey said.
Steffey said there also could be separation-of-powers issues, with courts perhaps being unwilling to tell Congress to expand the House.
The lawsuit claims the system of dividing House seats has left Mississippi, Utah, South Dakota, Delaware and Montana with too many people in each of its districts. The plaintiffs are from those states.
The suit also claims Wyoming, Rhode Island, Nebraska, Iowa and West Virginia have too few people in each congressional district.
Thurber, at American University, said there might be significant differences in House districts’ populations from state to state.
“I think the way to solve the significant differences might be not to create more districts but to do a better job in reapportioning,” Thurber said. “But I’m old-fashioned.”
Arguments will be heard by U.S. District Judges Michael Mills and W. Allen Pepper and 5th U.S. Circuit Court of Appeals Judge Leslie Southwick.
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