Order Code RS22628
Updated March 4, 2008
Congressional Redistricting:
The Constitutionality of Creating an
At-Large District
L. Paige Whitaker
Legislative Attorney
American Law Division
Summary
The District of Columbia House Voting Rights Act of 2007, H.R. 1905 (110th
Congress), contains provisions that would expand the U.S. House of Representatives by
two Members to a total of 437 Members. The first of these two new seats would be
allocated to create a voting Member representing the District of Columbia. The second
seat would be assigned in accordance with 2000 census data and existing federal law,
resulting in the addition of a fourth congressional seat in the state of Utah, which would
be a temporary at-large district. This report discusses only the constitutionality of the
creation of an at-large congressional district. While it is not without doubt, based on the
authority granted to Congress under the Constitution to regulate congressional elections
and relevant Supreme Court precedent, it appears that federal law establishing a
temporary at-large congressional district would likely be upheld as constitutional.
In April 2007, the House passed H.R. 1905 (110th Congress) by a vote of 241 to
177. A similar bill, S. 1257 (110th Congress), was considered by the Senate in
September 2007, but a motion to invoke cloture failed by a vote of 57 to 42.
H.R. 1905 (110th Congress), the District of Columbia
House Voting Rights Act of 2007
The District of Columbia House Voting Rights Act of 2007, H.R. 1905 (110th
Congress), contains provisions that would expand the U.S. House of Representatives by
two Members to a total of 437 Members.1 H.R. 1905 specifies that the first of these two
new seats would be allocated to create a voting Member representing the District of
Columbia, and that the second seat would be assigned in accordance with 2000 census
1 H.R. 1905 (110th Cong.) § 3(a).

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data and existing federal law,2 which would currently result in the addition of a fourth
congressional seat in the state of Utah.3 This report considers the issue of the
constitutionality of the creation of an at-large congressional district.4
The House passed H.R. 1905 in April 2007 by a vote of 241 to 177. A similar bill,
S. 1257, was considered by the Senate in September 2007, but a motion to invoke cloture
failed by a vote of 57 to 42.
Brief Constitutional Analysis
The U.S. Constitution provides the states with primary authority over congressional
elections, but grants Congress the final authority over most aspects of such elections.
This congressional power is at its most broad in the case of House elections, which have
historically been decided by a system of popular voting.5 Article I, § 4, cl. 1 provides that:
The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at
any time by Law make or alter such Regulations, except as to the Places of chusing
Senators.6
The Supreme Court and lower courts have interpreted this language to mean that
Congress has extensive power to regulate most elements of congressional elections,7
including a broad authority to protect the integrity of those elections.8
2 Id. at § 4(c)).
3 See CRS Report RS22579, District of Columbia Representation: Effect on House
Apportionment, by Royce Crocker.
4 For further discussion of H.R. 1905 (110th Cong.), see CRS Report RL33824, The
Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of
Representatives or the Committee of the Whole, by Kenneth R. Thomas, and CRS Report
RL33830, District of Columbia Voting Representation in Congress: An Analysis of Legislative
Proposals, by Eugene Boyd.
5 U.S. CONST. Art. I, §2, cl. 1 states “[t]he House of Representatives shall be composed of
Members chosen every second Year by the People of the several States.”
6 U.S. CONST. Art. I, §4, cl. 1.
7 285 U.S. at 366. See United States v. Gradwell, 243 U.S. 476, 483 (1917)(finding that
Congress has full authority over the federal election process, from registration to certification of
results); United States v. Mosley, 238 U.S. 383, 386 (1915)(holding that Congress has the
authority to enforce the right to cast a ballot and have a ballot counted); In re Coy, 127 U.S. 731,
752 (1888)(determining that Congress has authority to regulate conduct at any election coinciding
with a federal contest); Ex parte Yarbrough, 110 U.S. 651, 662 (1884)(holding that Congress has
the authority to make additional laws for free, pure, and safe exercise of the right to vote).
8 For example, the Supreme Court has noted that the right to vote for Members of Congress is
derived from the Constitution and that Congress may therefore legislate broadly under this
provision to protect the integrity of this right. See Smiley v. Holm, 285 U.S. 355, 366 (1932).
Furthermore, the Court in Smiley found that the authority to regulate the “times, places and
manner” of federal elections:
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The Constitution does not specify how Members of the House are to be elected once
they are apportioned to a state. Originally, most states having more than one
Representative divided their territory into geographic districts, permitting only one
Member of Congress to be elected from each district. Other states, however, allowed
House candidates to run at-large or from multi-member districts or from some
combination of the two. In those states employing single-member districts, however, the
problem of gerrymandering, the practice of drawing district lines in order to maximize
political party advantage, quickly arose.9
Accordingly, Congress began establishing standards for House districts. Congress
first passed federal redistricting standards in 1842, when it added a requirement to the
apportionment act of that year that Representatives “should be elected by districts
composed of contiguous territory equal in number to the number of Representatives to
which each said state shall be entitled, no one district electing more than one
Representative.” (5 Stat. 491.)10 The Apportionment Act of 1872 added another
requirement to those first set out in 1842, stating that districts should contain “as nearly
as practicable an equal number of inhabitants.” (17 Stat. 492.) A further requirement of
“compact territory” was added when the Apportionment Act of 1901 was adopted stating
that districts must be made up of “contiguous and compact territory and containing as
8 (...continued)
embrace[s] [the] authority to provide a complete code for congressional elections, not
only as to times and places, but in relation to notices, registration, supervision of
voting, protection of voters, prevention of fraud and corrupt practices, counting of
votes, duties of inspectors and canvassers, and making and publication of election
returns; in short, to enact the numerous requirements as to procedure and safeguards
which experience shows are necessary in order to enforce the fundamental right
involved.... [Congress] has a general supervisory power over the whole subject. Id.
9 The term “gerrymander” originated in 1812 when an odd shaped congressional district, which
resembled a salamander, was created by the Massachusetts legislature. In a play on words it was
referred to as a gerrymander, named after Elbridge Gerry, then governor of Massachusetts.
CONGRESSIONAL QUARTERLY INC., CONGRESSIONAL DISTRICTS IN THE 1980S 617 (M.V. Gottron,
ed. 1983).
10 In 1843, three states elected their delegations at-large. At the beginning of the 28th Congress,
the Clerk of the House declined to entertain a motion to exclude them and the at-large
Representatives were sworn in. After the delegations were seated, the House directed the
Committee of Elections “to examine and report upon the certificates of elections, or the
credentials of the Members returned to serve in this House.” The Committee report found the
1842 law to be “not a law made in pursuance of the Constitution of the United States, and valid,
operative, and [therefore not] binding on the states.” Later the House adopted a resolution
declaring the Representatives of the states “duly elected,” but omitted any mention of the
apportionment law. See Asher C. Hinds, Hinds’ Precedents of the House of Representatives of
the United States (Washington: GPO, 1907), at 170-173. In 1861, California elected three
Representatives at-large, and they too were seated. See Hinds, supra, at 182. More recently, for
example, during the 89th Congress in 1965, Maryland elected one Representative at-large (in
addition to seven Representatives from districts); Texas elected one Representative at-large (in
addition to 23 Representatives from districts); and Hawaii elected both of its two Representatives
at-large, all of whom were seated. See Biographical Directory of the United States Congress
1774-2005, H.R. DOC. NO. 108-222 at 431-35.

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nearly as practicable an equal number of inhabitants.” (26 Stat. 736.)11 Although these
standards were never enforced if the states failed to meet them, this language was repeated
in the 1911 Apportionment Act and remained in effect until 1929, with the adoption of
the Permanent Apportionment Act, which did not include any districting standards. After
1929, there were no congressionally imposed standards governing congressional
redistricting; in 1941, however, Congress enacted a law providing for various
contingencies if states failed to redistrict after a census — including at-large
representation. (55 Stat 761.) In 1967, Congress reimposed the requirement that
Representatives must run from single-member districts, rather than running at-large. (81
Stat. 581.)
Both the 1941 and 1967 laws are still in effect, codified at 2 U.S.C. §§ 2a and 2c.
In Branch v. Smith,12 the Supreme Court considered the operation and inherent tension
between these two provisions.13 The question of congressional authority was not in
dispute in this litigation. Rather, the Court noted in passing that the current statutory
scheme governing apportionment of the House of Representatives was enacted in 1929
pursuant to congressional authority under the “Times, Places and Manner” provision of
the Constitution. Consequently, it seems likely that Congress has broad authority, within
specified constitutional parameters, to establish how Members’ districts will be
established, including the creation of at-large districts.
It might be suggested that creating an at-large congressional district in a state could
violate the “one person, one vote” standard established by the Supreme Court in Wesberry
v. Sanders.14 In Wesberry, the Supreme Court first applied the one person, one vote
standard in the context of evaluating the constitutionality of a Georgia congressional
redistricting statute that created a district with two to three times as many residents as the
state’s other nine districts. In striking down the statute, the Court held that Article I,
section 2, clause 1, providing that Representatives be chosen “by the People of the several
States” and be “apportioned among the several States ... according to their respective
Numbers,” requires that “as nearly as is practicable, one man’s vote in a congressional
election is to be worth as much as another’s.”15
11 46 Stat. 21.
12 538 U.S. 254 (2003).
13 The 1967 law, codified at 2 U.S.C. § 2c, requiring single-member districts, appears to conflict
with the 1941 law, codified a 2 U.S.C § 2a(c), which provides options for at-large representation
if a state fails to create new districts after the reapportionment of seats following a census. The
apparent contradictions may be explained by the somewhat confusing legislative history of P.L.
90-196 (1967) (2 U.S.C. § 2c), prohibiting at-large elections. In 1941 and 1967, Congress
enacted modifications to the apportionment statute at 2 U.S.C. §§ 2a(c) and 2c, respectively. The
Branch Court reconciled the inherent tension between the two provisions by holding that the
provision requiring at-large elections under § 2a(c) was subject to the requirement under § 2c that
single-member districts must be drawn whenever possible. Id. at 266-71. For further discussion,
see CRS Report RS21585, Congressional Redistricting: Is At-Large Representation Permitted
in the House of Representatives? by David C. Huckabee and L. Paige Whitaker.
14 376 U.S. 1 (1964).
15 Id. at 7-8. Therefore, the Court held that, due to such substantial population deviations among
the congressional districts, the statute “grossly” discriminated against certain voters by
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While it is not beyond dispute, it does not appear that the creation of an at-large
district under the circumstances outlined in H.R. 1905 would be interpreted to create a
conflict with the “one person, one vote” standard. Under H.R. 1905, each Utah voter
would have the opportunity to vote both for a candidate to represent his or her
congressional district as well as for a candidate to represent the state at-large. Each
person’s vote for an at-large candidate would be of equal worth. Further, each person’s
vote for an at-large candidate would not affect the value of his or her vote for a candidate
representing a congressional district. Accordingly, all Utah residents’ votes would have
equal value, thereby arguably comporting with the one person, one vote principle.
Based on the authority granted to Congress under the Constitution to regulate
congressional elections and relevant Supreme Court precedent, it appears that a federal
law establishing a temporary at-large congressional district would likely be upheld as
constitutional.
15 (...continued)
contracting the value of some votes and expanding that of others. Id. at 7. While it may be
impossible to draw congressional district lines with precise mathematical equality, the Court
determined that a maximum variance of 30.26% is unconstitutional. Under Article I, section 2,
the Court announced, congressional districts must be “equal in population as nearly as
practicable.” Id. at 18.

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