Congressional Redistricting: Is At-Large Representation Permitted in the House of Representatives?

CRS Report for Congress
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Congressional Redistricting: Is At-Large
Representation Permitted in t he House o f
Specialist i n American N ational Government
Government and Finance Division
Legislative Attorney
American Law Division
S ect i o n 2c of Title 2 of t he U.S. Code requires m em bers of the House of
R epresent at i v es t o be el ect ed from s i n gl e -m em b er di st ri ct s, however, S ect i o n 2 a(c)
requi res R epresent at i v es t o be el ect ed at l arge i f a st at e fai l s t o creat e n ew di st ri ct s aft er
the reapportionment o f s eats following a d ecennial census. These apparently
contradictory p rovisions raise questions about whether and under what circ u mstances
federal l aw permits at -large repres en tation i n t he Hou s e o f R epresentatives . The
l e gislative h istory of 2 U.S .C. § 2 c i s s parse b ecause it was adopted as a S ena t e f l o o r
amendment t o a House-passed p rivate bill. In 1967, the s ame year that Section 2 c was
adopted, C ongress had contemplated, but failed t o p ass, a m ore comprehensive bill that
woul d h ave repeal ed S e c t i o n 2 a(c), t hereby removing the apparent statutory
i n consi s t enci es. Addressi ng t h e t ensi on bet ween S e ct i o n 2 a(c) and S ect i o n 2 c, as
applied t o a Mississippi redistri cting p lan, the S upreme C ourt i n Branchv.Smith1 held
that a federal district court was required t o c raft single-member d istricts. Although t he
issue rem ai ns unsettled, it appears t hat S ection 2a(c) could provide options to the Houseth
of R epresent a t i v es t o seat an at -l arge del egat i on. H.R . 415 (108 Cong.), would
es tablish a commission to make recommendations on the m et hod by which M em bers
of the House are elected, i ncluding ex aminin g alternatives to the current method. Such
recommendations, i f ultimately enact ed, could affect current federal s tatutory provisions
governing s ingl e-member and at-large representation i n t he House of R epresentatives .
Background. C ongressional efforts t o establish s tandards for House d istricts have
a l ong history. Co n g r e s s f i rst p assed feder al redistricting s tandards i n 1842, when it

1 123 S. Ct. 1429 (2003).
Congressional Research Service ˜ The Library of Congress

added a requirement to the apportionment act of t h a t ye a r that Representatives “ should
be elected by districts composed of conti guous territory equal in number t o t he number
of Representatives to which each said state shall be entitled, no one district el ecting more
than one Representative.” (5 Stat. 491.) 2 The Apportionment Act of 1872 added another
requirement to those first set out in 1842, stating t hat districts should contain “as nearly
as practicable an equal number of i nhabitants.” (17 Stat. 492.)3 A further requirement
of “compact territory” was added when t he Apport i onm ent Act of 1901 was adopted
s t at i n g t hat districts must be made up of “contiguous and compact t erritory a n d
containing as nearly as practicable an equal number of i nhabi t a nts.” (26 Stat. 736.)
A l t hough t hese standards were n ever enforced if the s tates failed t o m eet them, t hi s
language was repeated in the 1911 Apportionment Act and remained i n effect until 1929,
with the adoption o f t he Permanent Apportionment Act, w hich did not include any
districting s tandards. (46 S tat. 21.) After 1929, there were n o congressionally imposed
standards governing congressional d istricting; in 1941, however, C ongress enacted a l aw
providing for various districting contingencies i f s tates failed t o redistrict after a census—
including at-large representation. (5 5 S tat 761.) In 1967, Congress reimpos e d the
requirement that Repres entatives must run from s ingl e-member district s , rat h er than
running at large. 4 (81 S tat. 581.)
Bo th the 1941 and 1967 laws are s till in effect. The 1967 law, codified at 2 U.S.C.
§ 2c, requiring single-member districts, appears to conflict with the 1941 law, codified
a 2 U.S.C § 2a(c), which p rovides options for a t - l a rge representation i f a stat e fails to
create n ew districts after th e reapportionment o f s eats following a census. The apparent
contradictions may b e ex p lained by the s omew hat confusing l egislative history of P.L. 90-

196 (2 U.S.C. § 2c), prohibiting at-large elections.

Legislative History of Current Law . T h e l egislative h istory of the 1967 law,
mandating s ingl e-member districts (P.L. 90- 196), i s unusual. The portion o f t he bill that
became 2 U.S.C. § 2 c was a S enate amendmen t t o a House-passed p rivate immigration
act—H.R. 2275, 90th Congress, “an act for t he relief of Dr. Ricardo Vallejo Samala, and
to provide for congressional redistricting.” No h e a r i n gs were held or reports issued on

2 In 1843, three s tates elected their delegations at large. At the beginning of the 28 th Congress,
the Clerk of the House declined to entertain a motion t o exclude them and t he Representatives
were sworn i n. Af ter t he delegations were seated, t he House directed t he Committee of Elections
“to examine and report upon the certificates of elections, or the credentials of the Members
returned to serve i n t his House.” T he committee’s r eport f ound the 1842 law “not a l aw made
in pursuance of the Constitution of t he United States, and valid, operative, a n d [ t h e r e f o r e not]
binding on the s tates.” Later the House adopted a r es olution declaring t he Representatives of the
f o u r s t a t es “duly e lected,” but omitted a ny me ntion of t he apportionment l aw. See: As her C .
Hinds, Hi nds’ Precedents o f the House of Representatives of the United States (Washington:
GPO, 1907), pp. 170-173. In 1861, Californ i a e lected th ree Representatives at large, and t hey
too were s eated. Hinds, p. 182.
3 Section 6 of 17 S t a t . 2 8 provided for a reduction of Representatives to states that “deny or
abridge t he right of any male inhabitants” gr anted t he right t o vote by t he 14 th Amendment. This
provision of t he law has never been enforced.
4 “At-large” representation means Representatives run stat e wi d e ( a s Senators do), i nstead of
representing districts.

the at-large election p rohibition t hat b ecame 2 U.S.C. § 2 c, “N u m ber o f C ongressional
Di st ri ct s; num ber o f R epresent at i v es from each Di st ri ct ”:
In each State entitled i n t he Ni nety-f irst Congress o r i n a n y s ubsequent Congress
thereafter t o more t han one Representative under a n a pportionment made pursuant t o
the provi sions of section 2a(a) of this title, t here shall be established by l aw a number
of districts equal t o t he number of Representatives to which such State is so entitled,
and Representatives shall be elected only from districts so established, no district to
elect more than one Representative ( except t hat a St ate which is entitled t o more t han
one Representative and which has in all previ ous elections elected its Representatives5
at large may elect its Representatives at large t o t he Ni nety-f irst Congress).
H . R. 2275 was enacted after another b ill (H.R. 2508, also 90th Congress) th a t
incl uded s imilar l anguage pertaining t o at-large representation failed final passage after
two conferences —the first was recommitted i n t he H o u s e a n d the s econd was defeat ed
in the S enat e.6 H.R. 2508 also included additional provisions regarding population
equality plus geographi cal compactness and contiguousness. H.R. 2508 would have
deleted s ubsection (c) of section 2 2 o f t he Apportionment A ct of 1929, as amended,
(codified as 2 U.S.C. §2a(c)) and substituted the bill’s redistricting standards that also
incl uded a ban on at-large elections. S ection 2a(c) of Title 2 currently provides:
Until a State is redistricted in the manner provi ded b y t he law t hereof after any
apportionment, the Representatives to which such State is entitled under s uch
apportionment s hall be elected in the f ollowing manner: (1) If t here is no change in
the number of Representatives, t hey s hall be elected from t he districts t hen prescribed
by the l aw of such State, and i f any of them are elected f r o m t h e S t a t e at l arge they
shall c ontinue to be s o e l e c t ed; ( 2) if there i s a n i ncrease i n t he number of
Representatives, such additional Representative or Representatives shall be elected
from t he State a t l arge and t he other Represent atives from t he districts t hen prescribed
by the l aw of such State; (3) i f t here is a d ecrease i n t he number of Representatives
but the number of districts in such State i s equal t o s uch dec reased number of
Representatives, t hey s hall be elected from t he districts t hen prescribed by t he law of
such State; (4) i f t here is a decrease i n t he number of Representatives but the number
of districts i n s uch State is less than such number of Representatives, t he number of
Representatives by which such number of districts is exceeded shall be elected from
the State at large and the other Representatives from t he districts t hen prescribed by
the l aw of such State; or (5) i f t here is a decrease i n t he number of Representa t ives
and t he number of districts in such State exceeds s uch decrea s e d n u mb e r of7

Representatives, t hey s hall be elected from t he State at l arge.
5 2U.S.C.§2c.
6 For a history of t he efforts t o pass H.R. 2508 in the 90th Congress, see “Congress Fails to Adopt
House District Standards,” Congressional Q u arterly Almanac, vol. 23, (Washington:
Congressional Quarterly, 1967), pp. 550-557.
7 2 U.S.C. § 2a(c). 2 U.S.C. § 2a(a) specifies t he date and t h e ma t h e ma t i c al formula used t o
apportion s eats i n t he House of Representatives. It a lso s e t s t he size of the House at 435: “the
then existing number of Representatives.” Section 2a(b) a s s i gn s t h e duty t o t he Clerk or t he
Sergeant at Arms of t he House of Representatives to notify states of t heir a l l o c a t i o n o f
Representatives after each Census.

It is cl ear from committee report l anguage8 and bot h t he House- and S enat e-passed
versions of H.R. 25089 that 2 U.S.C. § 2 a(c) would h a v e b een superseded by new
language had i t b een enacted and approved b y t he President. H.R. 2275 ( P .L. 90-196),
which was enacted after t he second confer ence report o n H.R. 2508 was d efeated in the
Senate, d id not amend 2 a(c). Thus, P ublic Law 90-196 was codi fi ed i n a s eparat e p art o f
t h e U .S . C ode (2 U.S . C . § 2 c), rat her t han as repl acem ent l angu age for 2 U .S .C . § 2 a(c).
These apparently contradictory p rovisions raise questions about how Section 2 (a)c,
which p rovides for at-large Hous e elections under certain circumstances, can be
reco n c i l e d with Section 2c, which prohibits them . S ection 2a(c) of Title 2 could b e
invoked i f a state t hat h ad gained or lost Repres entatives after a census failed t o complete
the redistricting p rocess b efore t he first el ection following the reapportionment o f s eats
am ong the states. One could argue, contrarily, t hat since Section 2a(c) was e n act ed in
1941 and S ection 2 c was enacted in 1967, the p rohibition o f at-large and multi-member
districts i n S ection 2 c implicitly repeals t he contingencies for running at large p rovided
in 2a(c), thus making Section 2a(c) a dead letter. Further buttressing the dead letter t heory
is the 40-year history o f active court i nvolvement in redistricting. W h en Section 2 a(c)
was enacted in 1941, courts were constrained b y years o f p recedent limiting t heir entrance
into the “political thicket” of redistricting. After t he Suprem e C ourt established t he “one
person, one vote” principle b eginning with its 1962 landmark d ecision in Baker v. C a rr , 10
and C ongress passed t he Voting R ights Act of 1965,11 courts have intervened numerous
times i n t he stat e redistricting process.
Supreme Court Addresses Tension Betw een Secti ons 2a(c) and 2c:12
Branch v. Smith. In Branchv.Smith, decided o n M arch 31, 2003, the S upreme C ourt
addressed t he issue o f how these t wo s t a t u t o r y p rovisions can be reconciled. In the
reapportionment following the 2000 census, Mississippi’s delegatio n s i z e was reduced
from five R epresentatives to four. W hen i t appeared that the l egislature would not be able
to pass a redistricting plan i n time for candidates t o file to run for office, both t he
Mississippi state court and a t hree-judge feder al court d ra f t e d r e d i stricting p lans. The
federal d istrict court, however, d ecided t hat its plan would only be used i f t he Mississippi
state cour t p l a n w a s not precleared by the U.S . Depart m ent of J u st i ce, pursuant t o t he13
Voting R ights Act , in time for the March 1 filing deadline for state and federal

8 U.S. Congress, Senate Committee on t he J udiciary, Congressional Redis t r i c t i n g , r eport t o
accompany H.R. 2508, 90th Cong., 1st sess., S.Rept. 90-291, (Washington: GPO, 1967), pp. 6,7.
U.S. Congress, House Committee on t he J udiciary, Federal Standards for Congressionalth st
Redistricting, r eport t o a ccompany H.R. 2508, 90 Cong., 1 sess., H.Rept. 90-191, (Washington:
GPO, 1967), pp. 5,6.
9 T he r elevant t ext of H.R. 2508 reads a s f ollows: “subsection ( c) is amended by s triking out all
of the l anguage i n t hat s ubsection a nd inserting i n place thereof t he following ....”
10 396 U.S. 186 (1962).
11 79 Stat. 437, codified as amended a t 42 U.S.C. §§ 1971, 1973-1973bb-1.
12 123 S. Ct. 1429 (2003).
13 Section 5 of t he V oting Rights Act requires preclearance by t he Department of J ustice or t he
U.S. Di strict Court f or the Distr ict of Columbia when a covered j urisdiction s eeks t o administer
a c hange i n voting procedures. 42 U.S.C. §1973c.

candidates. A s t h e J ustice Department did not preclear the s tate court p lan b y t he
deadline, the d istrict court p lan was used for t he 2002 elections.
Aft er fi ndi ng t h at t h e federal di st ri ct court h ad properly enjoined t he enforcement o f
the s tate court plan,14 the S upreme C ourt t urned t o t he issue o f wh e t h e r S e c t ion 2 a(c)
requires courts to order at-large elections if a s tate redistricting plan i s not in place prior
to court action. The origi nal s tate plai ntiffs and t he United S tates as amicus curiae, had
argu ed that the d istrict court was required t o d raw s ingl e-member district s i n c rafting a
congressi o n a l p l a n , whi l e t h e o ri gi nal federal plaintiffs had contended t hat t he district
court w as requi red t o o rder at -l arge el ect i ons. R ej ect i n g t he ori gi n a l f e d e r al p l ai n t i ffs’
argument, a majority of the S uprem e C ourt held t hat t he lo w e r c o u rt was required t o
fashion a plan with single-mem ber districts. However, writing t wo separate concurring
opinions, a majority of the C ourt did not rea c h consensus as t o t he rationale behind its
holding, t hereby leaving t he reconciliation of S ections 2a(c) and 2c unsettled.
In the first concurrence (wr itten by J ustice Scali a , j oined by the Chief J ustice, J ustices
K e nnedy and Ginsburg) , a plurality of the C ourt i nterpret ed the at-large option i n S ection
2a(c)(5) as m erel y a “l as t-resort remedy,” being applicab le only i n t hose cas es where time
cons t r ai n t s prevent a s ingl e-member plan from bei ng drawn i n time for an election.15
Accordi n g t o t he S cal i a concurrence:
§2a(c) i s i napplicable unless the state legi slature and state and federal courts, have all
failed t o r edistrict pursuant t o §2c. H o w l o ng is a court t o await that redistricting
before determining t hat §2a(c) governs a f orthcomi ng election? Until, we think, the
election i s s o i mmi nent that no entity competent t o complete r edistricting pursuant t o
state l aw (including the mandate of §2c) i s able t o do s o without d i s r u p t i n g t he
election process. Only then may §2a(c)’s stopgap provisions be invoked. T hus, §2a(c)
cannot be properly applied—neith e r by a l egislature nor a court—as long as it is
feasible for f ederal courts to effect the r edistricting mandated by §2c. So i nterpreted
§2a(c) co n t i n u e s t o f unction as i t always has, as a last-r esort r emedy t o be applied
when, on t he eve of a congressional election, no constitutional r edistricting plan exists16
and t here is no time f or either the State’s legi slature or t he courts to develop one.
On the o ther hand, in a s econd concurrence (written by J ustice Stevens, j oined by
J ustices Souter and Breyer) , a separate plurality of the C ourt, while agreei ng that the district
cour t p roperly enjoined enforcement o f t he state court’s p lan and drew its own s ingl e-
member plan under 2 U.S.C. § 2 c, concluded t hat S ection 2 c “impliedly repealed” S ection17
2a(c). In a dissent, J ustice O’C onnor, ( j o i ned by J u stice Thomas ), found that when
federal court s are asked t o r e d i s t r i c t st at es t h at have l o st represent at i o n aft er a
reapportionment, and t he ex isting p lan h as mo re districts t han t he new allocation p ermits

14 T he Court affirmed the i nj unction on t he basis of t he district court’s principal stat e d gr ound
that the s tate-court plan had not been precleared under t he V oting Rights Act and had no prospect
of being precleared in time f or the 2002 election. Id. at 1437.
15 Id. at 1442.
16 Id. (Scalia, J ., concurring).
17 Id. at 1447-51 (Steve ns, J ., concurring).

and n o n ew plan has b een promulgated with the c orrect number o f d istricts, t he courts are
requi red t o o rder at -l arge el ect i ons i n accordance wi t h 2 U .S .C . § 2 a(c).18
Seating a n At-Large De legati on Elected In Contrave ntion of S ection 2c.
It could b e argued t hat at-large elections will not be needed in the post-1960s era b ecause
t h e court s now i n t ervene when t he st at es reach i m p asse and fai l t o redi s t ri ct fol l o wi ng t h e
decennial census. Nevertheless, since t he issue o f whether federal l aw perm its at-large
co n gressional representation appears unsettled, if a House del egation were elect ed at
large, it appears t hat t heir seating could be challenged in the House o f R epresentatives on
the grounds that their election v iolates S ectio n 2 c, which p rohibits at-large elections.
A challenged delegation might raise t h e d efense t hat s ince Congress did not
ex pressl y repeal t h e cont i n genci es enum erat ed i n S ect i o n 2 a(c) when i t enact ed S ect i o n
2c, i t h as therefore recogn ized the possib ility of an at-large delegation, which s hould b e
seat ed, d espi t e havi ng been el ect ed i n vi ol at i o n o f S ect i o n 2 c. P erhaps t he best argu m ent
that the s ingl e-member district requirement might be ignored by the House i n certainth
ci rcum st ances st em s from 1 9 cent u ry House p recedent . As not ed i n foot not e 2 supra,
at-large delegat i o n s w e r e seated after t hey were p rohibited i n 1842. Moreover, a
challenged delegation could argue that refusing to seat them would deprive an entire s tate
o f representation i n t he House. Thus, one would ex p ect that the 1 9 th century precedent
would b e followed t oday, although s uch p recedent might be less compelling i f t h e
organiz ation o f t he House were at s take.
One could also argue that the contingencies s et forth i n 2 U.S.C. § 2a(c) still serve
as a u seful i nsurance policy t o p rovide repres entation for a s tate that cannot, following the
releas e of census numbers, complet e t he post-census redistricting proces s i n time for t he
first congressi o n a l e l e c t ion. In 1967 Congress could h ave repealed Section 2 a(c), as
provided i n t he more far-reaching redistricting s tandards b ill (H.R. 2508). Instead,
Congress adopted P.L. 90-196, codified at 2 U .S.C. § 2 c, which p rohibits multi-member
districts, leaving S ection 2 a(c) in place, which p ermits them.
Legislation. On J anuary 28, 2003, Representative Hastings introduced H.R. 415
(108 th Cong.), a bill to establish a commission to make recommendations on the
appropriate siz e of membership of the House o f R epresentatives and t he method by which
Mem b e r s a r e el ect ed. S ect i o n 3 (2) o f H.R . 415 requi res t he com m i ssi on t o “ex am i n e
alternatives to the current method by which R epresentatives are elect ed (including
cumulative voting a n d proportional represent ation) to determine i f s uch alternatives
would m ake t he House o f R epresentatives a m o r e r epresentative body.” Such
recommendations, i f ultimately enact ed, could affect current federal s tatutory provisions
governing s ingl e-m e mber and at-large representation i n t he House of R epresentatives .
H.R. 415 was referred t o t he House C ommittee on t he J udici ary and no further action has
been t aken t o d at e.

18 Id. a t 1461 (O’Connor, J ., dissenting) .