11/20/16: Time to increase representation

This article appeared in The Virginian-Pilot on the date shown.

FOR THE FIFTH TIME since its founding, the United States will have a president who won the Electoral College while losing the popular vote. That it has happened twice in fewer than 20 years is troublesome, and the primary motivation behind the calls to eliminate it. There is another way to solve the problem, one which can be traced to the sole constitutional amendment of the original 12 that was not ratified.

Ours is not a direct (or pure) democracy, in that we do not vote on policy. You think Washington has gridlock now: Imagine what it would be like to have 248 million people (roughly the size of the U.S. population 18 or older) trying to come to a consensus.

Instead, while the power is vested in the people, it is exercised by electing representatives. The Electoral College is part of that representation. When you cast your ballots on Nov. 8, you were not really voting for president; you were voting for representatives – electors – to vote on your behalf. Except for Maine and Nebraska, states allocate all their Electoral College votes to the winner of the state’s popular vote. Virginia’s 13 electors, of which I am one, will be casting ballots Dec. 19 for Hillary Clinton.

Each state is allocated electoral votes based on their congressional representation — one for each member of the House of Representatives and one for each senator. Each state has two senators but the number of representatives varies based on population, with a minimum of one. Small population states, like Alaska, Delaware, Montana, Rhode Island and Wyoming each have three votes. States with larger populations have more. California has 55, Texas has 38, and New York and Florida each have 29. (Washington, D.C., while not a state, is allocated three as the result of the 23rd Amendment.)

And this is where the problem lies. California has nearly 67 times the population of Wyoming but only 18 times the number of electoral votes. Virginia’s population is more than 14 times that of Wyoming but has only four times as many electoral votes.

The reason the numbers are so far out of whack is because the last time Congress changed the number of representatives was in 1911, when it was fixed at 435. Subsequent passage of another law in 1929 made this number permanent. This is exactly what the founders were attempting to avoid with the Congressional Apportionment Amendment, the as-yet unratified original first amendment.

The founders intended the House of Representatives to be the people’s chamber, and its members to be close to them. Limiting the size of the represented population, and therefore, increasing the number of members in the House as the population increased, was a concern. The Federalists, such as James Madison in Federalist No. 55, argued in favor of large districts. Our commonwealth was on the other side, in favor of smaller districts. At Virginia’s ratification convention, a resolution was adopted that proposed an amendment to restrict the population of districts.

The First Congress approved the Congressional Apportionment Amendment, which allowed for the increase in the number of members to “no more than one Representative for every fifty thousand persons.”

Based on our current population, that would be more than 6,400 representatives, certainly an unwieldy number. Despite the lack of ratification of the amendment, Congress did increase the size of the House. Set at 65 at the time the Constitution was ratified, the number of members in the House was gradually increased to 435, via legislation generally after each Census.

Since 1911, the population of the U.S. has more than tripled, yet the House has remained the same size. Its members are no longer close to the people nor of the people. Congress can – and should – increase its size.

The benefits to doing so are many, including the reduction in the possibility of yet another split between the popular vote and the Electoral College. If we believe that every vote counts the same, it is difficult to justify the disparity between the value of a vote cast in Virginia and one in Wyoming.

Another benefit is one near and dear to my heart: minimizing the impact of gerrymandering. With more districts, it would be more difficult – although not impossible – to draw lines that benefit one party over another.

Eliminating the Electoral College requires a constitutional amendment, while increasing the size of the House of Representatives just requires legislation. The formula in the Congressional Apportionment Amendment may have been flawed, but its intent was not. I urge Congress to follow the lead of the First Congress and increase the number of members.