Friday, September 21, 2012

Third Circuit Rejects Broad Side Challenge to Congressional Reapportionment Process

Here's one we don't see everyday:

Citizen Eugene Martin Lavergne sued a who's-who of federal officers, arguing that the federal law saying how to reapportion congressional representatives in the wake of the census violated "Article the First," or the Congressional Apportionment Amendment, among other actual constitutional claims.

Not surprisingly, the Third Circuit rejected the claims.

Recall that Article the First was the first of twelve proposed amendments coming out of the First Congress and submitted to state legislatures for ratification.  Article the First never got enough states on board, though, even as Articles the Third through Twelfth became the Bill of Rights.  (Article the Second became the Twenty-Seventh Amendment, ratified 203 years after its introduction, on May 7, 1992.)  Article the First says,

After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Was Article the First actually ratified?  Here's Lavergne's math, from paragraph 59 of his complaint:

Article V of the United States Constitution is silent on the issue of fractional numbers and how they affect--or do not affect--the "three-fourths" language regarding ratification of proposed amendments by the States.  [It] is also silent on the issue of whether the "three-fourths" of the States referred to in Article V refers to the 3/4 of the States admitted at the time that the amendment was originally proposed, or whether that number changes as additional States are admitted to the Union before a given ratification process is concluded.  Even if the Law is that the 3/4 requirement changes and increases whenever a State joins the Union, when Kentucky became the 15th State and ratified "Article the First", the "pure numerical ratio" of "three-fourths" was 11.25 States, and Kentucky was the 11th State to ratify.  If fractional numbers are disregarded, or fractional numbers less than .49 are "rounded down" to the last whole number, then "Article the First" actually was ratified in 1792.  If any fractional number requires advancing to the next whole number, then "Article the First" was not ratified.  . . .  This Court is now being asked to answer these questions.

Weighty stuff, but the Third Circuit didn't bite: "Putting aside the considerable factual and historical problems with [Lavergne's] argument, '[t]he issue of whether a constitutional amendment has been properly ratified is a political question.'"  Op. at 5-6 (quoting United States v. McDonald, 919 F.2d 146 (9th Cir. 1990).)  

The Third Circuit also rejected Lavergne's handful of other, actual constitutional arguments (separation-of-powers and nondelegation doctrine claims based on the process of reapportionment, and a one-person-one-vote claim), ruling as a threshold matter that he lacked standing, and then rejecting the claims on their merits.


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Reading LaVergnes brief, it appears Connecticut ratified in 1790 (According to the Archivist of Connecticut) and with Kentucky in 1792 voting yes, you don't need to round up since you are at 80%. A ratified amendment. That's not much of a political issue. It's simple math.

Posted by: Scott Neuman | Mar 17, 2013 3:57:58 PM

Also, denying the claim because he doesn't have standing and denying them on their merits is different, don't you think? It's pretty simple to see the current apportionment methods violate the Constitution with one Representative in the House representing 500,000 people and another Representative representing 1,000,000. The CAA fixes this issue with a reasonable solution once you allow for the Senate version of the bill that doesn't have the Scribners error. None the less, the Archivist of the USA was served with court papers in this suit and does understand that with Connecticuts yes vote, we have 80% of the states voting for the amendment. If you didn't like 78.5%, then 80% must be good enough, isn't it?

Posted by: Scott Neuman | May 24, 2013 11:45:36 PM

One more thing I noticed about your article and it isn't mentioned is that Eugene Martin LaVergne was described as "A well respected attorney" by the 3rd circuit court and he is one of the few attorneys to have presented and been heard by the Supreme Court twice. His suit was to right a wrong that historically needs to be corrected. The amendment is ratified. It now needs to be dealt with.

Posted by: Scott Neuman | Aug 4, 2013 9:44:30 AM

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