Indiana Law Journal Volume 42 Issue 1 Article 2 Fall 1966 Legislative Apportionment in Indiana: a Case History Leon H. Wallace Indiana University School of Law Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Constitutional Law Commons, Legislation Commons, and the State and Local Government Law Commons Recommended Citation Wallace, Leon H. (1966) "Legislative Apportionment in Indiana: a Case History," Indiana Law Journal: Vol. 42 : Iss. 1 , Article 2. Available at: https://www.repository.law.indiana.edu/ilj/vol42/iss1/2 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. LEGISLATIVE APPORTIONMENT IN INDIANA: A CASE HISTORY LEON H. WALLACEt I It may be prophetic of the impermanent solubility of the problem of apportionment in representative government that the first presidential veto by the first President of the United States was that of the first con- gressional apportionment act. As the two-thirds majority necessary to pass the bill over the President's veto could not be obtained, the bill failed.' While the problems of congressional apportionment are distinct and the federal analogy may not be apt to state legislative apportionment, the fact remains that the federal history has had its impact, and that congres- sional reasoning has influenced the judgments of state constitution makers, state legislatures, and state courts in dealing with state legislative apportionment, long before "equal protection" became a factor, and has even furnished the bases for state courts' interpretation and declaration of the requirements of their respective state constitutions. Washington's objection to the constitutional interpretation embodied in the vetoed bill impelled him to his action.2 The bill, after giving each state its constitutional one representative, would have allotted an addi- tional representative for each additional unit of 33,000 population and any major fraction thereof left over. After Washington's veto, the Congress passed a bill which rejected, in each state, any remainders which did not equal 33,000 persons.' Thus, the first method of congressional apportionment was that of "rejected fractions," which gave an advan- tage to the citizens of states with larger populations, because the rejected fraction represented a smaller percentage of the total population in the larger states than in the smaller. t Charles McGuffey Hepburn Professor of Law, Indiana University School of Law. I wish to acknowledge the invaluable assistance of my wife in the preparation of this article; she prepared all the mathematical computations in the analyses of the various apportionment acts included in the appendixes, researched newspaper files, legis- lative journals, reports of state officers, and generally assisted in the preparation and organization of the materials. I wish also to recognize the work of my secretary, Mrs. Marie J. Mills, for much of the typing and correcting of the appendixes, and the work of Mrs. Ute Jansen in the preparation of the maps. 1. 3 ANNALS OF CONG. 540-41 (1792). 2. U S. CONST. art. I, § 2(3) provides that "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Repre- sentative .. " 3. 1 Stat. 253 (1792). LEGISLATIVE APPORTIONMENT Forty years later, after the census of 1830, Daniel Webster renewed the fight to give a state an extra seat for a major fraction, but was un- successful both in his efforts and his arithmetic. The population base, however, was increased to 47,770." In 1842, the base was increased to 70,680, and the act specified "one additional representative for each State having a fraction greater than one moiety of said ratio,"' as it was then called. This adopted in prin- ciple the method of the vetoed bill of 1792, and of Webster's efforts ten years earlier. A refinement of this method was enacted in 1850 which has come to be known as the Vinton Method, because of its sponsor.6 The total na- tional population was divided by the number of members in the House of Representatives. This quotient was then divided into the population of each state, which gave the quota for each state. Each state was then as- signed its constitutional member, followed by an assignment of additional members for each whole number in its predetermined quota. The re- maining unassigned members were given to those states with the highest fractions remaining. Although in each succeeding apportionment the number of represen- tatives was increased until it reached 435 in 1911,' the Vinton Method was followed until 1941, when Congress amended the automatic reapportion- ment act of 1929,8 and changed the method to that of equal proportions,9 which still prevails. This method is applied so that the average population for each rep- resentative has the least possible variation between states. The Congress apportions to the states the number in the national House of Representatives, but the problem of exactly how much control either the Congress, or the federal judiciary, in imposing "equal protec- tion of the laws" under the Fourteenth Amendment of the United States Constitution, will exert over the states in the method, manner, and pre- cise requirements not spelled out in the Constitution itself still leaves some questions unanswered, even though intermittent efforts of the Congress and the courts on the requirements of districting, and contiguity, com- pactness, and equality of population thereof have been a matter of con- 4. 4 Stat. 516 (1832). 5. 5 Stat. 491 (1842). 6. 9 Stat. 432 (1850). 7. 37 Stat. 13 (1911). 8. 46 Stat. 21 (1929). 9. 55 Stat. 761 (1941). INDIANA LAW JOURNAL cern for the last century and a quarter. ° This federal background is particularly relevant to Indiana. In Parkerv. State ex rel. Powell" and Denney v. State ex rel. Basler2 (here- after referred to as Parker and Denney 3), the Indiana Supreme Court, interpreting Indiana's Constitution of 1851, took judicial notice of the history of congressional apportionment, Denney more extensively but less accurately than Parker. Both wove into the fabric of the Indiana Con- stitution the "major fraction" method. Both quoted Daniel Webster at some length, and Denney mentioned him by name twice more for good measure. Denney, out of the federal heritage, has imposed upon Indiana some state constitutional doctrine that would have been unsatisfactory if applied in 1896, and is untenable in 1966, but which has not been dealt with except by necessary inference. However, neither history nor analysis of Indiana reapportionment and redistricting would be complete or accurate without a brief backdrop of the federal history, apart from the "equal protection" element which has affected most of the states since the Supreme Court of the United States filed its opinions in Baker v. Carr" and, two years later, in Reynolds v. Sims, and its companion cases in which opinions were filed on the same day.15 II As far as Indiana is concerned, the first significant cornerstone of representative government was "An Ordinance for the Government of the Territory of the United States Northwest of the River Ohio," passed by the Confederation Congress on July 13, 1787.10 The principle of representation was simple. It was to be based on 10. See 5 Stat. 491 (1842) ; 12 Stat. 572 (1862) ; 17 Stat. 28 (1872) ; 31 Stat. 733 (1901) ; opinion of Mr. Justice Frankfurter reviewing this development in Colegrove v. Green, 328 U.S. 549 (1946) ; Wesberry v. Sanders, 376 U.S. 1 (1964) ; Fortson v. Dor- sey, 379 U.S. 433 (1965). 11. 133 Ind. 178, 194, 32 N.E. 836, 33 N.E. 119, 13 L.R.A. 567 (1893). 12. 144 Ind. 503, 522, 524, 532, 42 N.E. 929, 31 L.R.A. 726 (1896). A third case, Brooks v. State ex rel. Singer, 162 Ind. 568, 70 N.E. 980 (1904), hereinafter referred to as Brooks, adds no new constitutional doctrine. 13. In the appellate briefs in Denney the name is correctly spelled Denny, the ap- pellant in Denney being William M. Denny, Clerk of the Circuit Court of Sullivan County, Indiana. This case is not to be confused with another, which also involved an interpretation of the Indiana Constitution, entitled It re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722 (1901). It re Demy does not concern apportionment. 14. 369 U.S. 186 (1962). 15. 377 U.S. 533 (1964); WMCA v. Lomenzo, 377 U.S. 633 (1964) ; Maryland Comm. v. Tawes, 377 U.S. 656 (1964); Davis v. Mann, 377 U.S. 678 (1964); Ro- man v. Sincock, 377 U.S. 695 (1964) ; Lucas v. Colorado General Assembly, 377 U.S. 713 (1964). 16. 32 JOURNALS OF THE CONTINENTAL CONGREss 334-43 (Hill ed. 1936). LEGISLATIVE APPORTIONMENT population, and was to represent local units. "So soon as there shall be five thousand free male inhabitants, of full age, in the district, upon giv- ing proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships, to represent them in the General Assembly; provided, that for every five hundred free male inhabitants, there shall be one representative, and so on, progressively, with the number of free male inhabitants, shall the right of representation increase, until the number of representatives shall amount to twenty-five; after which the number and proportion of repre- sentatives shall be regulated by the legislature. ...." No thought was given, apparently, to the possibility of counties or townships being joined together to elect a single representative, for the last paragraph of the section reads: "The representatives thus elected, shall serve for the term of two years; and in case of the death of a repre- sentative, or removal from office, the governor shall issue a writ to the county or township for which he was a member, to elect another in his stead, to serve for the residue of the term." These representatives would nominate ten freeholders, residents of the district, from whom Congress would select five, who would constitute a legislative council.