Challenge Donald Trump’s Election (Part Two: The Issue Is Just Apportionment)

In Part One of this proposal I argued that the Electoral College of the United States is in default of constitutional requirements, a situation that necessarily allows legal condemnation of the result of the recent presidential election.

I must add that this is not a perfect argument in that it can be argued that the Electoral College is fulfilling its duty per the Constitution; i.e., it has conformed to the number of representatives in respective states as prescribed by Am. 12. However, the apportionment of representatives on which the Electoral College is based is in its current form unconstitutional; therefore, the results of the corollary function of the EC must be condemned.

Before going into the constitutional basis for this claim and its corroboration by at least two chief justices (Story and Warren), it is important to point out that if the EC depends on the lower house’s system of apportionment then it did not fulfill its entire purpose, which is to reflect the notion of apportionment prescribed in the Constitution. It reflected instead a constitutionally abhorrent form of representation derived not from the Constitution, but rather from the Reapportionment Act 1929. The EC when based on constitutionally correct apportionment can and most likely will produce results different from an EC based on a constitutionally incorrect and illegal system of apportionment. In other words, the EC is only as constitutionally effective as the system of legislative representation on which it is based. The Reapportionment Act 1929 is unconstitutional; therefore the EC’s results are also unconstitutional.

The Reapportionment Act 1929 limited the United States House of Representatives to 435 seats. The last change to the number of seats at the time was in 1920 after the 1910 census, which reported a national population of 106 million. Prior to this Act, the House’s system of political representation had been expanding along with the US population. No seats have been added to the House since the US population stood at 106 million, roughly one third the size of the current population. The logistical problem with this limit on representation is states can only add seats by taking away from other states, depending on the vagaries of the population. However, regardless of population shifts between states, there still are not enough seats to go around. And because of certain constitutional rules some states have greater representation per capita than other states. California for example is allocated one House Representative on average per ~710,000 residents. Wyoming has one House Representative for all of its 584,000 residents as of 2014. Senate seats are fixed constitutionally at two per state.

The consequences of this malproportionality are 1) Electoral College electors in the presidential election represent in California approximately 20% more people than in Wyoming (and 10%-20% more than a number of other states), and 2) spending bills, which exclusively originate in the House, are more likely to benefit states with per capita greater representation. We see one example of this disproportionality in the famous “bridge to nowhere” in Alaska. The amount of spending per person is greater because political representation is greater.

The legal consequences of these facts are ultimately the same as first proposed. The election must be condemned. The cause is the unconstitutional Act passed in 1929 under a Republican president and a Republican House and Senate. The Writ against the US Government is still an appropriate measure. The US Government is ultimately responsible for what Chief Justice Warren called “malproportionality” in Reynolds v. Sims in 1964, the word itself indicating the harmful effect of such a practice of unconstitutional apportionment. Further, Chief Justice Story remarks in Commentaries on the Constitution:

Now, this is a plain departure from the terms of the constitution. It is not there said, that any such ratio shall be taken. The language is, that the representatives shall be apportioned among the several states according to their respective numbers, that is, according to the proportion of the whole population of each state to the aggregate of all the states. (§ 680)

This is a case of demanding remedy for multiple civil rights violations, numbering in the millions, which the people have a right to seek under the terms of the Constitution.

There has been a violation of the Constitution, but why exactly is that actionable? We have two broad parameters 1) the oaths of office that elected officials make to protect the Constitution, prescribed in the Constitution, and 2) the warrant in the Constitution itself that permits citizens (the represented) to petition government. It is the constitutional duty of officials to align practice with the terms of the Constitution; in default of this, the people are legally entitled to demand redress. This is unambiguous.

These parameters are a reflection of the contractual significance of the Constitution. Legally speaking, the Constitution is a contract between government and the governed. The key to this contractual relationship is that government is funded through a tax upon its franchisees. That tax is payment for government, and the government that people pay for has specific criteria prescribed by the Constitution. Government offers prima facie a number of entitlements in return for payment through taxation.

What gives warrant to the claim here is — apart from points mentioned above — the principle of equity. Each taxpayer is investing in a certain form of government guaranteed by the Constitution. This payment is the equity that each taxpayer has in the American political system. It is essentially a quid pro quo. It is important to note that Am. 14.2 and Article 1.2. in the Constitution link taxation and equal representation together in the same clause. In fact, early voters were required in the colonies to pay a poll tax when they voted; there were also taxes on commercial and residential property. There presumably was a direct link between taxation and even representation. There is no poll tax today as such; there are however numerous channels by which taxation occurs. Even a person who pays no tax per se, pays taxes indirectly (the taxation on rental real estate, for example, is compensated for in the rent structure).

However, the Reapportionment Act 1929 violates this principle of equity in that it allows states whose populations grow disproportionately in relation to other states to receive less political representation per capita. Therefore, the 2016 election is not equivalent to the intrinsic offer contained in the constitution. The offer appears to be that government intends to supply practicably equal political representation in return for payment of taxes.