Constitution protects the little ones too

Delegates to the 1787 constitutional convention were divided over how to apportion Congress.

States with larger populations advocated basing representation on population.

States with smaller populations feared this would allow states with larger populations to dominate.

Constitutional-convention delegates acknowledged the valid competing interests, and apportioned the U.S. House of Representatives by population and the U.S. Senate by state, with each state having an equal number of senators.

So now big California and little Wyoming have equal Senate representation.

The Constitution thereby protects not only big players but also little players.

Well, take this one step further. The Supreme Court has held many times — including in Bolling v. Sharpe in 1954 — that the same constitutional principles apply to the federal government and to the states.

So you might think it would be constitutional for states with bicameral legislatures – meaning every state except unicameral Nebraska — to apportion their lower houses by population and their upper houses by county, with each county having an equal number of members.

Along this line, New York state Sen. Joseph Griffo, R-I-C Rome, and state Assemblyman Mark Walczyk, R-C-I Watertown, propose continuing to apportion the state Assembly by population while apportioning the state Senate by county, with each county having one senator.

This proposal could catch on in other states.

Among the issues any such proposal in any state raises are these three:

¯ First, one argument in any such proposal’s favor is that it’s parallel to the federal system: It acknowledges the valid competing interests of counties with larger and smaller populations.

Isn’t this particularly compelling in states, such as New York, where big-player counties have dominated little-player counties?

¯ Second, any such proposal would – particularly in state Senates — shift power from big-player counties to little-player counties.

Such a shift may well, on balance and in effect, benefit Republicans more than Democrats.

That may well hurt any such proposal’s chances in states such as New York — blue states with dominant, blue, big-player counties that aren’t a majority of the state’s counties.

Wouldn’t that help prove the need to protect little-player counties?

¯ Third, are advocates of any such proposal in any state prepared to take it to the Supreme Court?

They may have to, because in Reynolds v. Sims in 1964, the court held that under the Fourteenth Amendment’s Equal Protection Clause, states must apportion both houses of their legislatures by population.

Reynolds says the “federal analogy to state legislative apportionment” is “inapposite and irrelevant”: “The system of representation in the two Houses of the Federal Congress … is based on the consideration that … a group of formerly independent States bound themselves together under one national government. … Political subdivisions of States – counties, cities, or whatever – never were and never have been … sovereign entities.”

Those advocating apportioning state Senates by county will need to address Reynolds but only with respect to state Senates, not any other bodies.

They may need to assert that the same constitutional principles apply to the federal government and to the states, persuade the court that the constitutional balance that the framers struck for the U.S. House of Representatives and the U.S. Senate was based not on states’ independence or state sovereignty but on the valid competing interests of larger and smaller populations, and cite examples of states where counties with larger populations have dominated counties with smaller populations.

Advocates may also need to select their fundamental assertion. Would they assert only that the Constitution – particularly the Equal Protection Clause – permits so apportioning state Senates? Or would they also assert that the Constitution requires it?

Stay tuned. There may be much more on this one.

Dr. Randy Elf explored seeking the Republican and Conservative parties’ nominations for New York attorney general in 2018.

Copyright ç 2020 by Randy Elf.


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