Congressional Redistricting: The Constitutionality of Creating an At-Large District
Released: 2010-12-28T00:00:00

H.R. 157 (111th Congress), the District of ColumbiaHouse Voting Rights Act of 2009

On March 2, 2009, the House Judiciary Committee reported the District of Columbia House Voting Rights Act of 2009, H.R. 157 (111 th Congress). The bill, as amended ( H.Rept. 111-22 ), among other provisions, would expand the U.S. House of Representatives by two members to a total of 437 members. The first of these two new seats would be allocated to create a voting member representing the District of Columbia. The second seat would be assigned in accordance with 2000 census data and existing federal law, resulting in the addition of a fourth congressional seat in the state of Utah that would be a temporary at-large district.

No further action was taken by the House. On February 26, 2009, the Senate passed a related bill, S. 160 , by a vote of 61-37. During the 110 th Congress, the House passed similar legislation, H.R. 1905 , by a vote of 241 to 177. A similar bill, S. 1257 , was considered by the Senate, but a motion to invoke cloture failed by a vote of 57 to 42.

This report discusses the constitutionality of the aspect of this legislation that would create an at-large congressional district. For discussion of other issues relating to this legislation, see CRS Report RL33824, The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole , by [author name scrubbed]; CRS Report RS22579, District of Columbia Representation: Effect on House Apportionment , by [author name scrubbed]; and CRS Report RL33830, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals , by [author name scrubbed].

Brief Constitutional Analysis

The U.S. Constitution provides the states with primary authority over congressional elections, but grants Congress the final authority over most aspects of such elections. This congressional power is at its most broad in the case of House elections, which have historically been decided by a system of popular voting. Article I, § 4, cl. 1 provides that

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Supreme Court and lower courts have interpreted this language to mean that Congress has extensive power to regulate most elements of congressional elections, including a broad authority to protect the integrity of those elections.

The Constitution does not specify how members of the House are to be elected once they are apportioned to a state. Originally, most states having more than one Representative divided their territory into geographic districts, permitting only one member of Congress to be elected from each district. Other states, however, allowed House candidates to run at-large or from multi-member districts or from some combination of the two. In those states employing single-member districts, however, the problem of gerrymandering, the practice of drawing district lines in order to maximize political party advantage, quickly arose.

Accordingly, Congress began establishing standards for House districts. Congress first passed federal redistricting standards in 1842, when it added a requirement to the apportionment act of that year that Representatives "should be elected by districts composed of contiguous territory equal in number to the number of Representatives to which each said state shall be entitled, no one district electing more than one Representative." (5 Stat. 491.) The Apportionment Act of 1872 added another requirement to those first set out in 1842, stating that districts should contain "as nearly as practicable an equal number of inhabitants." (17 Stat. 492.) A further requirement of "compact territory" was added when the Apportionment Act of 1901 was adopted stating that districts must be made up of "contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants." (26 Stat. 736.) Although these standards were never enforced if the states failed to meet them, this language was repeated in the 1911 Apportionment Act and remained in effect until 1929, with the adoption of the Permanent Apportionment Act, which did not include any districting standards. After 1929, there were no congressionally imposed standards governing congressional redistricting; in 1941, however, Congress enacted a law providing for various contingencies if states failed to redistrict after a census—including at-large representation. (55 Stat 761.) In 1967, Congress reimposed the requirement that Representatives must run from single-member districts, rather than running at-large. (81 Stat. 581.)

Both the 1941 and 1967 laws are still in effect, codified at 2 U.S.C. §§ 2a and 2c. In Branch v. Smith , the Supreme Court considered the operation and inherent tension between these two provisions. The question of congressional authority was not in dispute in this litigation. Rather, the Court noted in passing that the current statutory scheme governing apportionment of the House of Representatives was enacted in 1929 pursuant to congressional authority under the "Times, Places and Manner" provision of the Constitution. Consequently, it seems likely that Congress has broad authority, within specified constitutional parameters, to establish how members' districts will be established, including the creation of at-large districts.

It might be suggested that creating an at-large congressional district in a state could violate the "one person, one vote" standard established by the Supreme Court in Wesberry v. Sanders. In Wesberry , the Supreme Court first applied the one person, one vote standard in the context of evaluating the constitutionality of a Georgia congressional redistricting statute that created a district with two to three times as many residents as the state's other nine districts. In striking down the statute, the Court held that Article I, section 2, clause 1, providing that Representatives be chosen "by the People of the several States" and be "apportioned among the several States ... according to their respective Numbers," requires that "as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's."

While it is not beyond dispute, it does not appear that the creation of an at-large district under the circumstances outlined in H.R. 157 would be interpreted to create a conflict with the "one person, one vote" standard. Under H.R. 157 , each Utah voter would have the opportunity to vote both for a candidate to represent his or her congressional district as well as for a candidate to represent the state at-large. Each person's vote for an at-large candidate would be of equal worth. Further, each person's vote for an at-large candidate would not affect the value of his or her vote for a candidate representing a congressional district. Accordingly, all Utah residents' votes would have equal value, thereby arguably comporting with the one person, one vote principle.

Based on the authority granted to Congress under the Constitution to regulate congressional elections and relevant Supreme Court precedent, it appears that a federal law establishing a temporary at-large congressional district would likely be upheld as constitutional.