Gerard N. Magliocca
86 Geo. Wash. L. Rev. 774
This Essay argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two provides that the apportionment of representatives must be done based on total population unless a state disenfranchises a sufficient number of people who are defined as presumptively eligible voters, in which case that state’s number of representatives must be reduced. The reapportionment statutes instead say that apportionment must be done based solely on population. By erasing Section Two’s penalty provision, these statutes are unconstitutional. There is still time for Congress to correct this defect before the next census. If that is not done, though, then the federal courts can and should declare the next reapportionment null and void.
