Delaware voters sue to create 436th House seat – after their state lost one in 1823

The case for another seat

The plaintiffs, Redlawsk and Price, contend that representation should reflect population. Their complaint cites Article I, Section 2 of the Constitution and Section 2 of the Fourteenth Amendment, which says representatives should be apportioned among states according to their numbers.

Delaware currently has one member in the House, Democratic Rep. Sarah McBride. The lawsuit says that arrangement leaves her representing a greater share of the population than lawmakers in other states. Rhode Island, described in the complaint as the next-largest state by population, sends two representatives to Washington.

A proposed remedy

Redlawsk and Price argue that restoring the second seat Delaware lost in 1823 would address the disparity. They say the additional congressional district would create a place for a second representative and raise Delaware’s Electoral College votes from three to four.

How the seat limit took hold

In 1929, Congress passed a law making reapportionment automatic after each census while keeping the number of representatives at the level then in place. That law effectively fixed the House at 435 seats.