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By Steve Vladeck, Professor, University of Texas School of Law

The controversial confirmation of Justice Brett Kavanaugh to the U.S. Supreme Court has reinvigorated age-old debates over the representativeness, or lack thereof, of the presidency and the U.S. Senate. After all, a president who lost the popular vote by several million ballots successfully nominated a justice to the Supreme Court who was confirmed by exactly 50 senators — senators who, between them, represent well less than half of the country’s population.

Numerous reforms have been proposed either to prevent this scenario from recurring or at least to dilute its impact. Among other things, suggestions have ranged from expanding the size of the Supreme Court to limiting its jurisdiction to pushing for statehood for the District of Columbia and Puerto Rico (and the four presumably Democratic Senators who would come along with it).

Although it’s not the only way to make our political branches more representative, changing the size of the House of Representatives would make that body far more reflective of the country at large.

Perhaps because it plays no direct role in the judicial confirmation process, these more recent conversations have largely ignored the House of Representatives. That’s a mistake. Although it’s not the only way to make our political branches (and, through them, our judges) more representative, changing the size of the House of Representatives — from its current total of 435 seats to 650 seats, or one for every 500,000 constituents — would make that body far more reflective of the country at large; would dramatically affect presidential elections; and, perhaps alone among all of these proposed reforms, would most be in keeping with the wishes of the Constitution’s drafters.

Other than apportioning seats among the original 13 states, the only thing the Constitution says about the size of the House of Representatives is that “[t]he number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative.” (We’re not exactly close to that floor; if there was one member of the House for every 30,000 people in the United States today, the House would have close to 11,000 members.)

Concerned that this language was insufficient to ensure a truly representative House, the drafters of the Bill of Rights proposed, as the very first amendment to the Constitution (before even the freedom of speech), not just a minimum number of people for every member of the House, but a maximum as well. Such an amendment would have ensured that the size of the House would have to grow in direct proportion to the size of the country.

Although this amendment was the only one proposed in the Bill of Rights that was never ratified, Congress abided by its spirit for over a century, steadily increasing the number of seats in the House until, in response to the 1910 Census, it expanded the House to a total of 435 seats — to represent 92.2 million people.

In the ensuing 107 years, the size of the House has remained unchanged, even as the nation’s population has swelled to well over 300 million — three-and-a-half times what it was in 1910. (Congress added two temporary seats when Alaska and Hawaii became states in 1959, but quickly took them away.) As a result, the average member of the U.S. House of Representatives today “represents” somewhere north of 747,000 people.

There are three major problems with Congress’s refusal to increase the size of the House. First, and most obviously, it is difficult — if not impossible — for any one person adequately to represent the interests of three-quarters of a million people. A member of Congress who somehow finds a way to meet with 1,000 different constituents every single day would still not see everyone they represent over the course of a two-year term.

The average member of the U.S. House of Representatives today “represents” somewhere north of 747,000 people.

Second, the size of contemporary congressional districts leads to massive over-representation of some states and under-representation of others, since each district must be entirely within the same state, and every state must have at least one representative. Under the 2010 Census (the basis for the most recent apportionment of House districts), two states have under 600,000 residents per representative, and two have over 900,000. And for all of the criticism that the Senate receives for giving equal voting power to Wyoming and California, at least the Constitution mandates such inequity. The spirit of the Constitution seems to argue for the opposite result when it comes to the House. But the smaller the overall size of the House, the harder it is to apportion districts with roughly equal populations as across state lines. After all, five different states are now less populous, in total, than the average House district.

Third, and perhaps most importantly, a smaller House undercuts the representativeness of the Electoral College and, with it, presidential elections. Each state’s total number of electors — the number of votes they have in the Electoral College — is simply the size of its congressional delegation i.e. the state’s total number of House districts, plus two for each of the Senators. The smaller the total size of the House, the more the equal representation of the Senate skews the weight of individual Electoral College votes toward smaller states.

Thus, wholly unsurprisingly, the five most populous states in the 2010 Census (California, Texas, New York, Florida and Illinois) have the five highest number of residents per electoral vote, and the five least populous states (Wyoming, Vermont, North Dakota, Alaska and Rhode Island) have the five lowest number of residents per electoral vote. (To illustrate the disparity, based upon the 2010 Census, California has 679,000 residents per electoral vote; Wyoming has 189,000.)

Of course, expanding the size of the House wouldn’t change the fact that every state also gets two electoral votes from its Senate delegation. That couldn’t be changed without a constitutional amendment (which smaller states would have no incentive to ratify). But it would reduce the overall significance of those votes compared to the votes that reflect each House district. In the process, such a reform would not eliminate the disparity between large states and small states in the Electoral College, but it could substantially ameliorate it.

And unlike changing the equal representation of the Senate, changing the size of the House can be done simply by statute; the change to the Electoral College would follow automatically. As for how many seats to add without creating an unmanageable legislative body, a good starting point might be to reduce the average size of House districts by one-third — to 500,000 residents per representative.

Given estimates that the U.S. population today is roughly 325 million, that would mean expanding the House to roughly 650 seats — coincidentally, the exact size of Britain’s House of Commons. (Another proposal is the so-called “Wyoming rule,” which would peg the average size of House districts to the total population of the least-populous state, i.e., 563,626, under the 2010 Census.) We’d still be way behind the ratio of members to constituents from when Congress settled on a total of 435 (which would require more than 1500 seats today), but it would be a vast improvement over the status quo — for the democratic representativeness of the House itself, of the presidency, and as a result, of the judiciary.