The 1842 Apportionment Act

This chapter will prove that the two fundamental principles of the States' Choice of Voting Systems Act state choice and minority inclusiveness both were extensively endorsed and perilously protected throughout the 1842 Apportionment Act debates. But while the two ideas are comfortably intertwined in the present Act, they were irreconcilable in 1842. On one hand, the proposed district mandate would increase minority representation from the seven states that had used at-large elections in 1840. On the other, such a law would entail a considerable loss of state sovereignty, as states had always been free to decide for themselves how their Congressional delegation would be elected. Unlike today's legislators, the Congressmen of that time period unfortunately did not have the luxury of augmenting minority representation alongside state choice.

The perceived loss of state sovereignty provided a resounding sticking point to these debates. Nearly every Congressman preferred single-member district elections in principle, as the inherent improprieties of at-large elections were widely recognized. But while the end enhanced representativeness was agreeable, it was the means to that end which stirred fervent opposition. This law was justifiably viewed as a federal encroachment on the states' historic right to select their own electoral system. In an era still fearful of an omnipotent central government, these concerns much like those dealing with commerce and slavery were important because they hinged on states' rights. In the end, the need to protect minority rights prevailed over the desire to preserve state sovereignty albeit by a mere two votes in the House.[55] Still, the controversy this provision raised, both before and after it was passed, is illuminating to any modern discussion of federal electoral legislation.

Initial Impetuses and Ensuing Roadblocks

Since the Constitution does not require any particular electoral procedure, it should come as no surprise that when the first Congress was established in 1789, the voting methods varied widely among the original thirteen states. Only five states elected all of their Congressmen from districts, while six used the at-large system. Georgia and Maryland used a curious combination of districts and at-large voting; each state was separated into subdivisions, yet citizens were able to vote on every Representative.[56]

But the second Congress marked the beginnings of a trend that would hold until 1842: while large states opted for district elections, the small states, in terms of population, consistently chose the at-large system.[57] (see Appendix I) The reasons for this dynamic were simple. The larger states tended to have wide attitudinal variations within their boundaries due to the differences between city and rural interests, so many were compelled to hold district elections. This way, their Representatives could be familiar with the broader range of issues contained within the state. But smaller states lacked the expansive territory as well as the plethora of interests characteristic of the larger states. As a result, they opted for at-large elections since their Congressmen could know and adequately represent the entire state.[58]

Yet as detailed above, at-large elections can cause glaring representational deficiencies due to their sweep effect. The Congressional record from 1789 to 1839 proves the persistence of an unmistakable pattern,[59] in which one party would consistently win a disproportionate share of the state's political power. Any party that could garner a bare statewide majority would usually win all of the seats in the state's Congressional delegation. At the same time, a significant portion of the state's population, consisting of partisan and geographic minorities, would be left without representation in Congress.

These electoral misgivings were not necessarily accidents though. Smaller states remained partial to this unfair voting procedure because its sweep effect enabled these states to send more politically unified delegations to Congress. Although the larger states held a much higher number of seats in the House, their district elections caused their delegations to be divided along party lines. Conversely, at-large elections fostered partisan cohesion that helped the small states overcome their numerical disadvantage. Bloc voting amongst these states was made even easier with the common party affiliation, thereby allowing them to exercise a greater influence within the House of Representatives.[60]

Politicians were hardly unaware of the implications of the at-large system. Rep. Edward Everett of Massachusetts noted the intent of the smaller states when he said that "The general ticket system was adopted by [them], because it gave them political power over the larger."[61] Others were more concerned about the large number of citizens who cast losing votes, and sought a constitutional amendment. The first proposal was introduced in Congress as early as 1800, with twenty-two states adopting districting resolutions from 1816 to 1826.[62] Then there was Sen. Mahlon Dickerson of New Jersey, who proposed this sort of amendment almost regularly from 1817 to 1826, with it winning Senate approval three times.[63]

All of these efforts were unsuccessful, however, for three reasons.[64] First, the majority of Congress continued to assume that it was each state's constitutional authority to determine how they would elect their federal Representatives. Second, many felt that the state legislators would have a greater understanding of their state's political condition. The third and final reason was that as much as thirty-one percent of the total House membership between 1789 and 1842 came from states that elected those Representatives by the at-large method.

This push for nationwide single-member district elections would gain considerable momentum in 1842 though, precipitated by events that took place in the small state of Alabama. This state's Democrat-controlled legislature switched from district to at-large elections, and as a result, the Democrats won all five of the delegation's seats in 1841.[65] The losing Whig party argued that this was the first step in a national movement towards at-large elections.[66] Other Representatives began to worry that the large states might begin utilizing this electoral system in an effort to form their own bloc within the House. Several Representatives advocated a districting mandate due to the fear that if the large states did elect by general ticket, they would overwhelm their smaller counterparts.[67] Rep. Garrett Davis of Kentucky even put together a hypothetical situation when he remarked that "Under the proposed ratio, Massachusetts, New York, Pennsylvania, Ohio, and Indiana, by adopting the general ticket system, would have the majority of the house, and would be able to control the legislative power of the Government."[68]

Only 7 out of the 26 states in the Union still elected their Representatives at-large in 1842,[69] but Congressmen from several of these states were swayed by the Whigs' arguments.[70] Given that most Congressmen still believed districts to be the most fair electoral procedure,[71] an important amendment was thereby tacked on to the Apportionment Act of 1842. Following the introduction of this districting provision were several months of extensive testimony and heated debate about the principles of federalism and minority representation.

Tremendous Implications?

The Apportionment Act of 1842 started out as a simple reapportionment plan that Congress routinely enacted after every decennial census. But given the widespread controversy surrounding at-large elections, Rep. John Campbell of South Carolina soon introduced the following amendment:

At first glance, the Amendment seems relatively minor. After all, it would not even affect a majority of the states. Furthermore, the benefits of single-member districts were openly accepted by nearly everyone in both the House and Senate. This fact prompted Rep. Nathaniel Pendleton of Ohio to remark that "there exists in this House a singular unanimity in favor of electing members of Congress by districts, in preference to a general ticket."[73] Echoing this feeling was Sen. Jacob Miller of New Jersey, who stated that "Every Senator here is in favor of [district elections] in the abstract."[74]

Yet this bill was anything but trivial, as many Congressmen considered it to be a bill with tremendous implications on the struggle for power between the states and the federal government. Several legislators thought it was one of the most important questions that had ever been discussed since they took office.[75] Then there were others who voiced their displeasure in dramatic terms. They argued that no proposition had been introduced which was "so odious as this,"[76] declaring that it would "lead to the most disastrous consequences."[77] Illinois Sen. Samuel McRoberts' speech provided the most clear manifestation of this opposition when he said "I do not believe there has been a question agitated in my day, nor since the establishment of this Government, that forebodes consequences so evil, and so utterly destructive of all State power and State sovereignty, as this proposition."[78]

Thus, the districting amendment may not have affected a majority of the states. Nor was the end seriously contested, as most members of Congress were in favor of uniform single-member district elections. In this context, the aforementioned statements seem nothing more than rhetorical embellishments. But this uniform electoral system would come at a heavy cost, for it would require the federal government to intrude upon what had traditionally been the states' exclusive decision. As a result, this measure was destined to encounter vehement opposition from the numerous states' rights advocates in Congress.

The Federalism Debate

The fear of an omnipotent federal government remained quite pervasive throughout the nation in 1842. This worry may seem somewhat foreign today, yet many states continued to strongly protect their relative autonomy vis-�-vis federal encroachment. Consequently, to borrow the words of Rep. John G. Floyd of New York, the districting amendment was "not a question between the district system and election by general ticket; but it is a question between the General Government and the State Governments."[79]

The comments made on this manner ranged from descriptive to predictive, from well-mannered to incendiary. Sen. Arthur Bagby of Alabama used some amusing metaphors, at one point arguing that if this amended bill was passed, "you plant a thorn in the bosom of many of these States that will rankle and fester there until it gangrenes the body politic."[80] Rep. Nathan Clifford of Maine forecast that "One encroachment will follow another, until the local governments will be stripped of every vestige of authority over all branches of the subject."[81] In addition, Rep. George Houston of Alabama asked rhetorically, "are we not increasing, and at a rapid and unprecedented ratio, the prospect of collisions between this and the State government?"[82]

Yet without a doubt, the most outspoken critic of the districting clause was Rep. Andrew Kennedy of Indiana. Although his state already elected by districts, he repeatedly vilified the bill in dramatic and even hostile terms. He begged Congress "not to superinduce a struggle for existence between this Government and the States," reasoning that "If that struggle ever comes, it will be fierce and deadly, and will only end in the destruction of one or the other."[83] He went on to argue that this sort of Congressional interference would turn "the harmonious action of our States into perfect anarchy leaving all our glory to set in a sea of blood."[84] And in his most obnoxious quote, he warned:

Many Congressmen even took the cynical view that the districting mandate was a sly way of subordinating the state governments to Congress, since the federal government was in effect issuing a command to the state legislatures. Rep. Floyd declared that "The States are sovereign and independent in their action and you cannot bring them under a humiliating subjection to the General Governments, by directing them how they shall exercise their sovereign powers."[86] Similarly, Sen. Leonard Wilcox of New Hampshire stated that "There is nothing in the Constitution which authorizes Congress to assume any such right, or confers upon her any power to prescribe to the State Legislatures what their legislation shall be."[87]

While some of this commentary could have been overzealous and sensationalistic, many of these arguments were still justified. Since the country's inception, the states had always decided how they would elect their Representatives exclusive of any federal intervention. Further, this was the original intent of the Framers of the Constitution. So it should not be surprising that in the days when many politicians were suspicious of an aggrandizing federal government, states' rights advocates were angered by the proposed amendment.

Of course Article I, Section 4 explicitly gave Congress power over electoral regulations.[88] Try as they might, many Congressmen could not overlook this fact. Pointing to that provision of the Constitution, Rep. William Butler of South Carolina posed the question "what plain, unsophisticated man, reading this clause, would for a moment doubt the power of Congress to control the whole subject, whenever, in its discretion, it shall see fit to do so? Could language be more direct, full, and explicit?"[89] Sen. Jabez Huntington of Connecticut felt much the same way, asserting that Congress' power over the matter "is ample, full, and plenary; and so far as it is exercised, it is supreme, overriding State legislation, and is the paramount law, to be obeyed and enforced."[90]

These arguments conclusively determined that Congress did indeed have some power over Congressional elections. But in an effort to thwart the usage of this power, Rep. Floyd rightfully argued that "it was only intended to be an ultimate power, for self-preservation, in case the states neglected to exercise it".[91] Both he and Rep. Clifford revealed proposed amendments from a solid majority of the original thirteen states' ratification conventions to convincingly prove this point.[92] Virginia, North Carolina and Rhode Island all suggested the same revision before the Constitution was signed:

Five other states made similar sounding propositions, all of which held that Congress should only use this power as a last resort. This led Sen. Silas Wright of New York to make the valid claim that a majority of the Republic

These concerns about Congressional authority were combined with the notion, firmly rooted in the Constitution's history, that the proper mode of election was a matter best left for the states to decide. Rep. John Pope of Kentucky articulated this sentiment when he maintained that "without hesitation, the [Constitutional] Convention decided that the power should be reserved to the States, as more competent to judge and regulate the elections in their respective States, than Congress could be over this extensive country."[95] Several other Representatives pointed toward a statement from James Madison in an effort to reaffirm their argument about state choice.[96] While giving his explanation of Article I, Section 4 to the Virginia Convention in 1778, he said

This statement was momentous, for it was referred to repeatedly by both sides of the debate. It undoubtedly endorsed state choice, not to mention confirmed the aforementioned arguments about the self-preserving nature of Congress' power. Yet much like Section 4 itself, this quote carries two messages. For the power to "produce uniformity" clearly provided those in favor of the districting clause with a republican onus, straight from one of the Framers himself. Madison's explanation was arguably more of a justification for the districting bill rather than some sort of necessary catalyst, though. After all, this statement was over fifty years old, thus making it difficult to believe that the sudden calls for uniformity were rooted in some sort of overwhelming democratic exigency.

Nevertheless, the record shows that many of those in favor of the districting amendment advocated the need for uniformity in House elections. Rep. George Summers of Virginia remarked "We have seen that, from the beginning, it was considered extremely important and desirable that the manner of holding elections for Representatives should be uniform throughout the States."[98] Rep. Butler said "I take it for granted, that uniformity and permanency in the mode of electing Representatives were the intent and design of the Constitution; and that sound policy requires the reform should be adopted."[99] Finally, Rep. Daniel Barnard of New York reasoned that "A want of uniformity in the manner of conducting the elections in the several States, leading to gross inequality, might and would demand the interposition of this Government."[100]

However, the suddenness of the desire for uniform Congressional elections did not go unnoticed. Rep. Clifford asked rhetorically "When did this want of uniformity commence, which is so alarming to the majority on this floor? What is the sudden emergency that calls for this new course of legislation?"[101] Rep. Charles Atherton of New Hampshire provided the most critical comment, arguing that

In sum, these debates indicate that while the federal government did indeed have some power over House elections, any Congress that enacts a districting mandate may not be using this power in the intended context. Madison's statement regarding the power to "produce uniformity " is insightful and important. But it is no more the word of the Constitution than are the amendments to Section 4 proposed by Massachusetts, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Virginia. If anything these eight conventions one of which, Virginia, claimed Mr. Madison as a member surely contribute more to the understanding of Section 4's intent than one lone quote. Moreover, Madison himself had declared earlier that this power should be used only "whenever extraordinary circumstances might render that interposition necessary to its safety."[103]

The opposition repeatedly argued that Congress was encroaching upon states' rights in a domain where it did not have the recognized power to do so. Supporters of the mandate could hardly disagree with the first half of this position, since Congress was clearly intruding upon a traditionally exclusive state activity. And while Article I gives the federal government authority over Congressional elections, this power was not well-defined and therefore rather suspect. One can only speculate on the influence these numerous speeches had on any undecided Congressmen, though it appears that a compelling case was made for the rejection of this amendment based on principles of federalism alone. The districting clause nonetheless passed in an era still fearful of an expanding federal government, meaning there must have been a very significant reason so many Congressmen acquiesced to this inroad on state sovereignty.

A Mirror of the People

The drawbacks of at-large voting in statewide elections had been recognized for many years. In 1790, after Pennsylvania's general ticket elections led to a Federalist sweep of all eight seats, citizens were already denouncing this system. Most of the eight elected Congressmen hailed from the eastern part of that state, so Pennsylvanians soon pressured their legislature to adopt a voting system that would more adequately reflect the state's regional differentiation.[104] In addition, Congressmen since 1800 had tried to eliminate at-large elections, claiming districts to be more fair and equitable.[105] Much of this criticism stemmed from at-large elections' sweep effect and the numerous people who were left without representation as a result.

The ills of at-large elections were referred to on numerous occasions. Noting the unstable sweep effect, Rep. Barnard asked "What would become of the interests of minorities in the several States, when each state should send an entire delegation of one or other of the two great parties?"[106] Sen. Isaac Bates of Massachusetts pointed out that "The general ticket system disfranchises the minority in a State, however near it may approach a majority, and in however so many districts it would actually constitute a majority, and be entitled to a representation in Congress."[107] Rep. Butler went even further still, describing the general ticket method as "a system so unjust, anti-republican, and so outrageous upon the rights of minorities, that it can never prevail in many States of this Union."[108]

These problems were summarized alongside the well-accepted merits of single-member districts. Rep. John Reynolds of Illinois felt that with districting, "the will and sentiments of the people will be more purely represented than by any other mode."[109] Similarly, Sen. Huntington asserted that the amendment would

It seems that quite a few of these politicians firmly believed that Congress should serve as a mirror of the American population. This idea runs deep in American political thought, dating back to the early days of the Republic.[111] As a matter of fact, John Adams claimed that the federal legislature "should be an exact portrait, in miniature, of the people at large, as it should think, feel, reason, and act like them."[112] The concept was also expressed at the Constitutional Convention by James Wilson, who stated that "the legislature ought to be the most exact transcript of the whole society the faithful echo of the voices of the people."[113]

During the debates of 1842, several Congressmen borrowed the portrait analogy to advance their own theories of what Congress should look like. Rep. Reynolds thought that the House of Representatives was meant to be a "kind of facsimile and mirror of the [public]" since it was "the direct offspring of the people, and nearer the people than any other assembly of men."[114] Rep. Atherton reasoned that "If there be any thing in the theory of representative government, it seems to follow conclusively that the people should have as thorough and extensive a representation as is possible."[115] Yet it was a senator from New Jersey, a state that elected its House Representatives at-large, that provided the most idealistic commentary about the representativeness of districts. Sen. Miller felt that if this law were passed,

Yet for Congress to be an accurate portrait of the general voting society, political minorities would clearly require some sort of representation. Accordingly, quite a few Congressmen openly advocated minority rights. Rep. Reynolds "always thought that in the administration, as well as the construction of government, regard should be had to the rights of minorities."[117] He went on to assert that the "greatest good which a well-regulated Government bestows on those upon whom it operates is that it secures the rights of the weak against the power of the strong."[118] Likewise, Rep. Pendleton explained that

Most of these Congressmen saw the districting mandate as the only way in which minorities could be adequately represented. Rep. Pendleton went on to argue that "Without this amendment, the minority may be silenced, as it clearly is in all cases of elections by general ticket."[120] Sen. Huntington sensed that

Yet just like today, not every Congressman was necessarily a firm believer in minority representation. To the contrary, some readily questioned the Constitutional concept. Rep. Houston declared that "The right of a minority is not that it shall elect a member: majorities elect the members; and, to be so entitled, it must become a majority."[122] Sen. Bagby, one of the most outspoken critics of the districting clause, contended that "Beyond the ballot box, minorities have no rights They have no right to be represented, either in a popular or political point of view, as is clearly demonstrated by the result of every election, from a constable up to the chief magistrate of the union."[123]

The representational debates make it is obvious that a large majority of the 27^th Congress was compelled to remedy electoral flaws. The undeniable fact was that the at-large method of voting drastically underrepresented political minorities. Therefore, numerous politicians, clearly schooled in historical notions of proper representation, articulated the value of minority rights. They detailed a forgotten goal for the House of Representatives, which was that it should directly mirror America's voting population. They sensed that a fairly organized government required adequate minority representation. Their arguments now are certainly as convincing as they must have been back then, for one should not forget the fears they had to overcome in order to successfully pass this amendment.

The Aftermath

Given the widespread controversy surrounding the 1842 Apportionment Act, several Congressmen frankly alluded to the districting mandate's potential ineffectiveness. Rep. Clifford stated rather bluntly that "The amendment is in the nature of a Constitutional prohibition; and, as such, is clearly nugatory and void, as no one will pretend that Congress can interfere with any of the reserved rights of the States."[124] Rep. Kennedy asked the pointed question, "Suppose that New Jersey who now elects by general ticket treats (as she will be very likely to do) your order with silent contempt, and goes on and elects her members as now provided What will you do?"[125] One Congressman, Rep. William Payne of Alabama, openly predicted state defiance:

Unfortunately, Rep. Payne proved to be an accurate prognosticator. In the elections following passage of the single-member district mandate, New Hampshire, Georgia, Mississippi, and Missouri all continued to elect their Representatives with the at-large system.[127] President John Tyler even played a minor role in this recalcitrance. When he signed the Apportionment Act, he appended a memorandum in which he openly questioned the constitutionality of the districting provisions.[128]

Of course these elections spawned a considerable amount of conflict, which was initially referred to the Committee on Elections. Stephen A. Douglas, then a Representative from Illinois, wrote the majority opinion of this committee, seeking to justify these four states' elections. In this report he offered the following resolution: "That the second section [of the 1842 Apportionment Act]�is not a law made in pursuance of the Constitution of the United States, and valid, operative, and binding upon the States."[129] Douglas added that Congress did not have the "authority to instruct the State Legislatures in respect to the manner in which they shall perform the duties imposed upon them by the Constitution."[130] The minority opinion, written by Garrett Davis, a Whig from Kentucky, contended that these Representatives were not entitled to their seats since they had not been elected according to the Constitution.[131]

The debate soon shifted to the House floor. However, the Democratic Party outnumbered the Whigs by more than 60 members, with 18 of the 21 contested members being Democrats.[132] So despite Douglas' opinion, this Democratic majority conceded the general ticket Representatives their seats[133]�and effectively invalidated the 1842 Apportionment Act. Although each of these four states elected their Representatives by districts in 1848, the districting provision of the 1842 law was quickly dropped after the 1850 census.[134]

Conclusion

There are two important things that one must take away from the history behind the 1842 single-member district mandate. First is that this law encountered strenuous resistance from nearly half of Congress. This opposition was based on three facts: (1) states had always decided for themselves how they would elect their Representatives; (2) this was the intent of the Framers of the Constitution; and (3) Congress' power over Congressional electoral matters was suspect, and not meant to be used in such a context. These Congressmen considered it each state's right to determine its own electoral system, and were thereby appalled at a federal law mandating one particular procedure.

The second important conclusion from this chapter is that nearly all Congressmen were in support of the most inclusive electoral system possible at that time.[135] Minority representation was repeatedly championed throughout these debates, with single-member district elections widely considered to be the only available conduit. Despite the overwhelming tide of well-reasoned, anti-Federalist opposition, it appears that minority rights trumped those of the states'.

Today's States' Choice of Voting Systems Act thus seems to be an ironic resolution to the 1842 debates. Back then, the opposition centered on the need to preserve state sovereignty. The rest of Congress simply endeavored to ensure a fair electoral system that increased minority representation. Both sides made vigorous arguments and presented an abundance of evidence in an attempt to strengthen their respective claims. In so doing, they inadvertently made quite a compelling case for the passage of Mel Watt's bill. For just as his proposal is consistent with the Constitution, it is likewise compatible with the efforts of both sides of the debate which took place over the 1842 district mandate.

Notes

[55] Congressional Globe, 27^th Congress, Second Session, Volume 11, Part I 471 (1842). It passed in the Senate by a vote of 25-19. Ibid, 614.

[56] Districts were used by Massachusetts, New York, North Carolina, South Carolina, and Virginia. At-large elections were used by Connecticut, Delaware, New Hampshire, New Jersey, Pennsylvania, and Rhode Island. See Zagarri 107-114, 154.

[57] Congressional Quarterly's Guide to US Elections 943-974.

[62] Carolyn Goldinger, ed., Jigsaw Politics: Shaping the House After the 1990 Census 17 (Congressional Quarterly, 1991).

[65] Congressional Quarterly's Guide to US Elections 973.

[67] 1842 Congressional Globe 408.

[69] Congressional Quarterly's Guide to US Elections 971-74. They were Alabama, Georgia, Mississippi, Missouri, New Hampshire, New Jersey, and Rhode Island. Arkansas, Delaware and Michigan also held their elections at-large, but given that each state was only entitled to one Representative, they were not able to hold district elections.

[70] Zagarri 131. She states that "the support of senators and representatives from small states such as New Hampshire, Georgia, Missouri, and Mississippi, which still had general ticket elections, was crucial to the passage of the bill."

[71] Infra, notes 73 and 74.

[72] 1842 Congressional Globe 348.

[89] 1842 Congressional Globe 319.

[92] Ibid, 320-322, 348-349. Also see Paschal, supra note 52.

[93] 1842 Congressional Globe 322.

[96] Ibid, 321, 341, 346, and 353.

[97] James Madison, "Power to Regulate Elections," in The Papers of James Madison 139, 140 (ed. Robert Rutland, 1984) [hereinafter Rutland, Papers].

[98] 1842 Congressional Globe 353.

[103] Supra note 50.

[106] 1842 Congressional Globe 382.

[111] Amy, Real Choices 27.

[112] Hannah Pitkin, The Concept of Representation 60 (University of California Press, 1967), taken from ibid.

[113] Pitkin 61, taken from ibid.

[114] 1842 Congressional Globe 345-346.

[127] Congressional Quarterly's Guide to US Elections 975-980.

[128] Emanuel Celler, "Congressional Apportionment Past, Present, and Future," 17 Law and Contemporary Problems 268, 272 (Duke University, 1952); Goldinger 17.

[135] Proportional representation did not even exist in the early 1840s, and was not widely explored until John Stuart Mill explained its merits in Representative Government (1861). See generally John Stuart Mill, Considerations on Representative Government, (ed. Currin V. Shields, 1958).

Flores