Amicus Curiae Brief — Department of Commerce v. Montana

i

Supreme Court, U.S.

FILED

NO. 91-860 | JAN 15 1992

IN THE OFFICE OF THE CLERK

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF COMMERCE; et al.,

Appellants,

Vv.

THE STATE OF MONTANA; et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MONTANA

BRIEF OF THE STATE OF WASHINGTON

AS AMICUS IN SUPPORT OF APPELLANTS

' KENNETH O. EIKENBERRY

Altorney General

State of Washington

JAMES M. JOHNSON*

Sr. Assistant Attorney General

CAROLE A. RESSLER

Assistant Attorney General

*Counsel of Record

Highways-Licenses Bldg.

Seventh Floor

P.O. Box 40100

Olympia, Washington 98504-0100

(206) 753-4556

SESS

QUESTIONS PRESENTED

Article I, section 2, clause 3 of the United States Con-

stitution provides that representatives in the United States

House of Representatives “shall be apportioned among the

several States which may be included within this Union, ac-

cording to their respective Numbers.” Section 2 of the Four-

teenth Amendment reiterates that requirement. The

questions presented by this case are:

1. Whether Congress’s choice among alternative

means of apportioning representatives that are rationally

tied to the respective populations of the states is subject to

review by a court.

2. Whether 2 U.S.C. 2a, which provides for apportion-

ment of representatives on the basis of the mathematical

formula known as the “method of equal proportions,” satis-

fies the requirement that representatives be apportioned

among the states “according to their respective Numbers.”

ee essa aaa

the Certificates of Entitlement Are

Irrevocable (Absent Congressional

TABLE OF CONTENTS

Page

INTERESTS OF AMICUS 20000000 ccce eee. 1

The “Washington Paradox” ..............0...ccccccceeeeseseoesesevseee 2

The States’ Dilemma; Should They Redistrict?............ 3

ne 4

A. Ee 4

B. State Redistricting Processes ...............06060000c0000000. 5

SUMMARY OF ARGUMENT ..00 6

Il. THE TIME HAS LONG PASSED TO CHAL.-

LENGE THE ACTIONS O” THE PRESIDENT

AND CONGRESS IN THE 1990-91 APPORTION.

LS SSS 6

Il. IF CONSIDERED ON THE MERITS, 2 U.S.C. §

2A TS CONSTITUTIONAL 0.......0..0000ccccccccescccocecceeceeeee. 7

NE 5

I. THE 1990-91 APPORTIONMENT OF REPRE.

SENTATIVES IS NOT NOW SUBJECT TO RE-

EL SEE s

A. Congress's Selection of a Method to Pro-

vide for Fractional Remainders in Ap-

portioning Representatives Among the

Several States Under Article I, Section 2,

Clause 3 Is a Political Question ......................... .

B. ——— Entitlement May Not Be

snnnsnnenennnesintnereinerieneneeneneenenennecsesccececccecscceses 12

“ The Clerk Does Not Have Authority

to Revoke Washington's Certificate

a 12

iv

TABLE OF CONTENTS (Continued)

Page

3. There Should Be Finality in Con

gressional Apportionment.......................... 16

C. The Action Should Have Been Dismissed

Because Washington Is an Indispensable

SI citinesintciasineticinstr abiaiiitaeiaitaiaaitiiaaieiaaipmmnnrnacenemaans 17

Il. UNDER THE APPROPRIATE CONSTITUTION.

AL STANDARD, CONGRESS'S SELECTION OF

THE “EQUAL PROPORTIONS” METHOD

gL 20

A. Wesberry Tests Do Not Apply to Congres-

sional Reapportionment of Representa-

tives Among the Several States ......................... 23

1. Congress Acted in Good Faith Se-

lecting “Equal Proportions”........................ 24

B. “Equal Proportions” Is the Best Method

of Reapportionment for Congress ...................... 25

1. Historical Scientific Support for

, i TL 25

2. Advantages of “Equal Proportions”

Over The Dean Method ....................0......... 26

RE EEE Se ee 28

Vv

TABLE OF AUTHORITIES

Cases Page

Aguilar v. Los Angeles Cy., 751 F.2d 1089

ee 19

Baker v. Carr, 369 U.S. 186 (1962) 000.0... 6, 9, 11

Bergen v. Spaulding, 881 F.2d 719

EY ae ae 12

Board of Pardons v. Allen,

a re 12

Carey v. Klutznick, 653 F.2d 732 (2nd Cir. 1981)

cert. denied sub nom. Carey v. Baldrige, 455

EES AE 19

Confederated Tribes of Chehalis Indian

Reservation v. Lujan, 928 F.2d 1496

SESS SS 19

Eldredge v. Carpenters, 662 F.2d 534 (9th Cir.

1981) cert. denied 459 U.S. 917 (1982)............ ... .17, 18

Idaho ex rel. Evans v. Oregon, 444 U.S. 380

EE A .. 19, 20

INS v. Chadla, 462 U.S. 919 (1983) ..............cccccccccccceceeeeeee 6

Karcher v. Daggett, 462 U.S. 725 (1983) .......00000000000.... 7, 24

Japan Whaling Ass’n v. American Cetacean Soc’y,

ETS ES 11, 22

Makah Indian Tribe v. Verity, 910 F.2d 555

ITS 19

Martin v. Wilks, 490 U.S. 755 (1989)....0000000000000 7,18

Morgan v. United States,

801 F.2d 445 (D.C. Cir. 1986) cert. denied 480

EN? GE 16

Mountain States Tel. & Tel. v. Pueblo of Santa

A 13

New York v. U.S. Dep't of Commerce,

Sc 4

TABLE OF AUTHORITIES (Continued)

Page

Perrin v. United States, 444 U.S. 37 (1979) ...................... 13

Prigg v. Penn, 41 U.S. (16 Pet.) 539 (1842) ......0000......... 6, 21

Provident Tradesmens Bank & Trust Co. v. Patterson,

EEE 18

Reiter v. Sonotone Corp., 442 U.S.330 (1979).........0.......... 13

United States v. Turkette, 452 U.S. 576 (1981)...... ee 13

Washington v. U.S. Dep't of Commerce,

C91-315Z (D. Wash. filed March 7, 1991).................... 4

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)..... 3, 17

Wells v. Rockefeller, 394 U.S. 542 (1969)... 24

Wesberry v. Sanders, 376 U.S. 1 (1964)....... 7, 10, 23, 24, 26

Wichita & Affiliated Tribes of Oklahuma v. Hodel,

Sk ee 19

Constitutions, Statutes and Regulations

SR aE Snes eee 4, 10, 12, 13, 14, 16

Ee ee ee re 4,9

ES A La TE 17, 18,19

Mont. Code Ann. § 13-10-2021 .0.......0...0ccccccccececeeseeeesessveveseeve 6

Mont. Code Ann. § 13-10-401,

I a 6

Pub. L. No. 87-291, 55 Stat. 761 (1941)... 16

EE Ee 20

CS 4, 7,20

Wash. Rev. Code § 44.05 (1984) ...000........cccccccccccccecceees 5, 6

EE EE ial unio

Books

M. Balinski & H.P. Young,

Fair Representation (1982)....................... 10, 21, 26, 28

1 The Records of the Federal Convention of 1787

ie 22, 23

TABLE OF AUTHORITIES (Continued)

Page

2 The Records of the Federal Convention of 1787

I ts *

Other Authorities

Z. Chaffe Jr., Congressional Reapportionment,

42 Harv. L. Rev. 1015 (1929) 2.00000 25, 26

56 Fed. Reg. 33, 562 (1991) ..............ccccccccccccccccecscececeeeseeseee 5

G7 Comg. Roc. GOGB (1041) ...............cceccecsesesceccsecsseeseeesees i4

ee 15

87 Cong. Rec. 8083 (1941) 0.00.0... ccccccccccccecceccceeseeeeseeeeeeeee. 15

Census Activities and the Decennial Census: Hear-

ing on HR 1990 B. fore the Subcommittee on Cen-

sus and Population of the Hiouse Committe on

Post Office and Civil Service, 97th Cong. 1st Sess.

EE ee a eae a 10, 11, 26

H. R. Rep. 1314, 91st Cong. 2d Sess. (1970) ..................... 26

M. Morse et al., Report to the President of the

National Academy of Sciences (1948) .....0...0.0.0000000000cc0c000- 25

J. Moore et al., 3A Moore’s Federal Practice

SEERA Ere a ae Ne eee 18

®

NO. 91-860

IN THE

SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF COMMERCE; et al.,

Appellants,

THE STATE OF MONTANA; et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF MONTANA

BRIEF OF THE STATE OF WASHINGTON

AS AMICUS IN SUPPORT OF APPELLANTS

INTERESTS OF AMICUS

The State of Washington’s population grew between

1980 and 1990 by a percentage exceeding that of the coun-

try as a whole (and exceeding that of Montana). As a direct

consequence of those population changes, Washington has

gained one seat in the House of Representatives. Montana

has lost one. The exact “quotas” for those states (the states’

percentage of national population times 435 House seats)

were Washington 8.538, Montana 1. 404.! Montana seeks by

this litigation to transfer a Washington seat to Montana.

The decision below, while not ordering that result, would

have that effect if retroactively implemented.”

The “Washington Paradox”

The decision of the court below, if retroactively imple-

mented by taking a representative from Washington and

giving it to Montana, would create a “Washington Paradox”;

a state with a .404 fractional remainder would receive an

extra representative while a state with a .538 would receive

one fewer.* This contradicts the result under every system

of apportionment approved by Congress since the United

States Constitution was ratified.

Such a result arguably contradicts the text of the Con-

stitution which apportions to states “according to their re-

spective numbers.” Such a result is also contrary to the

intent of the Framers of the Constitution, to the extent such

intent may be derived from their comments (infra, pp. 21-

23) and from the apportionment method adopted by those

members of the early Congress who had participated in the

Constitution’s creation and ratification.

'Given these population trends, by the time this case is decided,

Washington’s claim will actually be relatively better than even those fig-

ures established.

2The decision of the two Montana district judges (J.S., pp. la-19a)

makes clear its preference of the Dean method of apportionment. The dis-

senting circuit judge notes the result “Washington State’s ninth House

seat would be reassigned and added to Montana” (J.S., p. 29a). This re-

sult was not asked for in the Complaint. (Mot. Affirm, App. 8.)

3Other states may label the paradox differently, e.g. Massachusetts

with a .532 remainder also has a better claim to the disputed seat than

Montana under the Jefferson, Webster and Vinton methods. Under the

Hill method, neither get this seat. This indicates the fallacy of two-state

pairing as a sole criterion for judging apportionment methodology.

The States’ Dilemma; Should They Redistrict?

Montana received all the relief it specifically requested

below: a declaration that the apportionment statute is un-

constitutional and a prospective injunction against the

United States implementing it.

Montana now suggests “the only way to give effect to

the plain language of the court’s findings is to void the cer-

tificates of entitlement issued in January 1991” (Mot. Af-

firm, p. 16, n.8).

One result of such relief (never pleaded) may be to void

the results of congressional redistricting completed by

Washington--and most other states--in good faith reliance

on the finality of apportionment and Certificate of Entitle-

ment each received. Montana took no action after the pre-

liminary census returns in 1990 were released indicating its

loss of one seat. Montana continued to delay after the Cen-

sus was finally reported (December 26, 1990), after the

President’s Report was prepared and transmitted to Con-

gress (January 2, 1991), and after a Certificate of Entitle-

ment was transmitted to each state (January 16, °%91).

Finally, on May 22, 1991, four plus months after all states

received the Certificates, Montana finally filed its Com-

plaint (Mot. Affirm, App. 8). Redistricting processes had

long since commenced in most states and been completed in

many.

There is no way Washington (or most other states)

could lawfully proceed otherwise. Redistricting takes time

and elections deadlines limit the time available. Schedules

and deadlines are established by constitution, statute, or

both. Washington’s redistricting deadline is constitutional

(Wash. Const. art. 2, § 43, amend. 74). (A summary of states

which have completed redistricting is App. A.)

Montana alone bears the responsibility for the delay

described above and its potentially disruptive effects. These

public consequences are strong equitable considerations

weighing against its claim for extraordinary relief. Wein-

berger v. Romero-Barcelo, 456 U.S. 305 (1982).

STATEMENT

A. Proceedings

In accordance with the United States Constitution,

(art. I, § 2, cl. 3) and statutory requirements (13 U.S.C. §

141a), a census was conducted of the Unitea States as of

April 1, 1990. On December 26, 1990 the results were re-

ported to the President as required by the statute. In accor-

dance with statutory requirements (2 U.S.C. § 2a(a)), on

January 3, 1991 (the first day of the 102nd Congress), the

President transmitted to Congress a report showing the re-

sults of the 1990 Census, and the number of representatives

to which each state is entitled.

Washington’s exact (proportionate to population) share

of the 435 United States House seats was 8.538, and Mon-

tana’s was 1.404.* Under the “equal proportions” method

mandated by 2 U.S.C. § 2a, the President’s Statement re-

ported Washington entitled to nine seats, and Montana to

one seat.

On January 16, 1991, the Clerk of the United States

House of Representatives transmitted to each state a Cer-

tificate of Entitlemert to that number of representatives

(Montana’s Certificate is Mot. Affirm, App. 10; Washington’s

Certificate is reprinted herein as App. B).

Because the letter of transmittal of that Certificate

suggested possible change of the Certificates in the event of

census adjustment,” Washington filed an action in the Unit-

ed States District Court in Washington (Washington v. Unit-

ed States Dep't of Commerce, No. C91-315Z, (D. Wash. filed

March 7, 1991)).® Washington’s action sought a declaration

and injunction barring the Clerk from revoking or modify-

‘If calculated today, annual census reports confirm that Washing-

ton’s advantage would be greater.

5Other litigation demanding adjustment of the Census figures was,

and is, pending in district court, e.g., New York v. United States Depart-

ment of Commerce, 713 F. Supp. 48 (1989) (preliminary rulings reported).

A)] states were served with the pleadings.

ing its Certificate. It was argued that neither Constitution

nor statute 7Bive the Clerk authority to change any state’s

Certificate.’ (This argument, as relevant to the instant ac-

tion, is summarized, infra, pp. 12-16). The action is still

pending.®

Three and one-half months later (May 22, 1991) Mon-

tana filed this suit. Washington filed a Motion to Appear

Amicus specifically noting that Washington declined to

waive its immunity to suit.

A three-judge district court was convened, composed of

er Montana district court judges and one circuit court

judge.

The State of Washington later filed an Amicus Brief in

Support of the Executive Branch Defendants’ Motion to Dis-

miss in which it was argued that Washington (or any state

from which Montana sought to take a representative), was

an indispensable party, and that the Certificates of Entitle-

ment to United States House seats already issued were ir-

revocable.

B. State Redistricting Processes

The Certificate of Entitlement to nine United States

House seats was duly received by Washington’s Governor,

and transmitted to the Washington Redistricting Commis-

sion established by Washington Constitution, article 2, sec-

tion 43, amendment 74.

The Redistricting Commission, as required by the

Washington Constitution and relevant statute (Wash. Rev.

Code § 44.05 (1984)) conducted extensive hearings around

the state and redistricted Washington into the nine United

States House districts (and intertwined state legislative

"The same action sought to enjoin the Census Bureau from “adjust-

ment” of the Census. When the United States Department of Commerce

decided not to adjust (56 Fed. Reg. 33, 582 (1991)), that part of the action

was nonsuited.

®The Clerk has entered into a stipulation to abide by the decision of

that court.

districts). The Redistricting Plan was completed, filed Jan-

uary 1, 1992 and is now final.®

Washington is not the only state which has completed

redistricting. By the date this case is to be argued, 29 states

will have completed redistricting to implement reapportion-

ment under the statute alleged unconstitutional herein

(App. A).

Ironically, Montana has not congressionally redistrict-

ed. If it prevailed, Montana would be faced with the choice

of conducting elections at large, or under an unconstitution-

al apportionment (the present population of Montana’s dis-

tricts drawn in 1981 are 417,172 and 381,894). They do not

meet applicable standards for congressional districts within

a state.!°

SUMMARY OF ARGUMENT

I. THE TIME HAS LONG PASSED TO CHALLENGE

THE ACTIONS OF THE PRESIDENT AND CON.-

GRESS IN THE 1990-91 APPORTIONMENT.

Such a challenge now violates the separation of pow-

ers. Baker v. Carr, 369 U.S. 186, 210 (1962). The very struc-

ture of the Constitution, by including apportionment in

article II shows this separation of powers. INS v. Chadla,

462 U.S. 919, 946 (1983).

Selection of a method to provide for fractional remain-

ders in apportioning representatives among the several

states is a congressional function “irresistibly flowing” from

article I, section 2. Prigg v. Penn, 41 U.S. 6109 (1842). The

question, then, is a nonjusticiable political question. Baker,

369 U.S. at 210.

%Subject only to legislative amendment before February 12, 1992,

which requires two-thirds vote of each House. Wash. Rev. Code 44.05.100.

10Montana’s filing date for Congress is in March of 1992 (75 days

before the primary), (Mont. Code Ann. § 13-10-201(6) (1987)). The prima-

ry is in June (Mont. Code Ann. § 13-10-401, citing 13-1-107 (1987)).

The action is time-barred, the process was completed,

the President has reported each state’s proper apportion-

ment, and irrevocable Certificates of Entitlement to those

United States House positions have been issued to all states

by the Clerk before the commencement of this action.

Any state whose House seat is to be taken by Montana

is an indispensible party, yet no state was joined. The bur-

den to do so is on Montana, and the case should be dis-

missed on that basis alone. Martin v. Wilks, 490 U.S. 755

(1989).

Il. IF CONSIDERED ON THE MERITS, 2 U.S.C. § 2A

IS CONSTITUTIONAL:

If the appropriate constitutional standards are ap-

plied, Congress’s selection of the “equal proportions” meth-

od must be upheld. Interstate reapportionment under

article I, section 2, clause 3 is not subject to the same stan-

dards as intrastate redistricting under article I, section 2,

clause 1. Wesberry v. Sanders, 376 U.S. 1 (1964) (distin-

guished).

Congress has not been shown by Montana to have act-

ed other than in good faith. (Karcher v. Daggett, 462 U.S.

725, 730-31 (1983)). The selection of a method before the re-

sults are known avoids discrimination or political decision-

making based on state impacts.

A. The “equal proportions” method is the best, on

mathematical and equitable grounds. It assures that each

person’s share of a representative is equal. Any transfer of

representatives will increase the relative difference be-

tween that state’s average district size and the ideal, and

will increase the relative difference between each person’s

share of a representative.

The method was selected after an objective evaluation

of alternatives by the National Academy of Sciences (NAS)

and is supported by subsequent analyses.

The “equal proportions” method has numerous advan-

tages over the Dean method when applied long-term (to nu-

merous apportionments). It minimizes total variance from

ideal. “Equal proportions” also provides a smaller probabil-

ity of quota violation and has less of a bias between smaller

and larger states than the Dean method.

The Framers intended results such as those Montana

challenges. Elsworth spoke of a state which “might have one

Representative only, that had inhabitants enough for 11/2

* * * 2 The Records of the Federal Convention of 1787 at

358 (Farrand ed. 1937). The first apportionment adopted

rounded-down fractions, like Montana’s.

ARGUMENT

I. THE 1990-91 APPORTIONMENT OF REPRESEN-

TATIVES IS NOT NOW SUBJECT TO REVIEW

The district court dealt only summarily with whether

the Complaint dealt with a nonjusticiable political question,

and not at all with whether it ought be dismissed because of

Montana’s delay in filing and failure to join indispensable

parties (J.S., 5a). Under all of these grounds, the case ought

to have been dismissed. They shall be considered seriatim

below.

A. Congress’s Selection of a Method to Provide

For Fractional Remainders in Apportioning

Representatives Among the Several States

Under Article I, Section 2, Clause 3 Is a Polit-

ical Question

Montana and its congressional representatives filed

this action instead of asking Congress to change the method

of apportionment. Indeed, Montana’s congressional repre-

sentatives have never even filed a bill in Congress to change

the apportionment method.!!

"Ironically, both Montana congressmen opposed change of the

equal proportions method when last considered by Congress (quoted and

cited infra, p. 10, 11).

In order to get the additional United States House seat

through court action, Montana must not only have the court

void an act of Congress but also compel the adoption of a

statute encompassing an apportionment method more fa-

vorable to Montana. The Court must also void the House

Clerk’s Certificates of Entitlement (presumably those of all

states). Montana now suggests this drastic remedy is appro-

priate (Mot. Affirm, p. 16, n.8).

Then, to get Montana the extra House seat, the Presi-

dent (a nonparty) must be ordered to make a new report to

Congress providing two House seats for Montana.!? Finally,

the House Clerk must be ordered to issue (all) new Certifi-

cates of Entitlement with at least Montana’s and Washing-

ton’s entitlement changed.

Each of these steps involves reversing actions of the

separate branches of government, which have long become

final. The case clearly involves nonjusticiable political ques-

tion(s).

This Court has said that:

In determining whether a question falls within [the

litical mp pm category, the appropriateness ~<A

our system of government of attributing finality to the

action of the political departments and also the lack of

sa criteria for a judicial determination are

dominant considerations.

The nonjusticiability of a political question is primari-

ly a function of the separation of powers.

Baker v. Carr, 369 U.S. 186, 210 (1962) (cite omitted).

Washington (and other states) have already concluded

their congressional redistricting, in reliance upon the final-

ity of the actions of both the Executive Branch and the Leg-

islative Branch.

The final actions of the Executive Branch were two:

First, the Secretary of Commerce made its final report of the

Census results on December 26, 1990 (13 U.S.C. § 141(b)).

'2Because Washington's population is growing faster than Montana's,

by the time the report is made, a current report would probably dispense

with Montana's claim.

10

Then, the President certified the final apportionment re-

sults of the 1990 Census including states’ apportionment to

the Congress on January 3, 1991 (the first day of the 102nd

Congress) (2 U.S.C. § 2a).

The Legislative Branch has also taken its final action.

The Clerk of the House sent each state its Certificate of En-

titlement on January 16, 1991 (2 U.S.C. § 2b). On their face,

and by statute, these Certificates are final until the next de-

cennial census and apportionment.

At another level, the finality in question is the act of

Congress selecting an apportionment method (2 U.S.C. §

2a). While arguably subject to challenge either in Congress

or the courts, between census/apportionments, the statutory

scheme should be considered final during each census/ap-

portionment. The advantages of having a final

congressionally-adopted apportionment formula in place be-

fore the political effects of census changes were apparent

has long been recognized. This was one of the reasons for

adoption of the statute:

Heaven knows, out of the American experience, that

rules have got to be hard and fast if constitutional nul-

lification in a large sense is to be prevented in connec-

tion with the reapportionment of the House of

Representatives.

(87 Cong. Rec. 8053 (1941)) (Statement of Senator Arthur

Vandenberg). He has been referred to as “the champion of

permanent legislation” (M. Balinski & H.P. Young, Fair

Representation, 58 (1982)).

When Congress considered the statute in 1980!° both

Montana congressmen (plaintiffs below) testified in opposi-

tion to changing the method once the results of a census are

known.

I think it is entirely inappropriate, however, to adopt a

new formula after the census facts are known * * * so

that we are not, rightfully, accused of adopting a formu-

la to fit the facts.

'SThis was years after Wesberry and most of the cases that Mon-

tana claims establish the unconstitutionality of this statute. Wesherry v.

Sanders, 376 U.S. 1 (1964).

11

Census Activities and the Decennial Census: Hearing on HR

1990 Before the Subcommittee on Census and Population of

the House Committee on Post Office and Civil Service, 97th

Cong., 1st Sess. (1981) p. 13 (Statement of Representative

Williams).

What we have here is a situation where the ball game

has been played under a prescribed set of rules; some-

ang Sao Uisl, 0nd now Cay want So ange the rules

* * * we will no have a situation where Con-

gress can act free from political considerations and in

the national interest.

Id. at p. 11 (Statement of Representative Marlenee).

The “dominant consideration” of attributing finality to

actions of the separate branches argues in favor of finding

the question “political” and nonjusticiable. In this interstate

apportionment, the separation of powers is keenly implicat-

ed, since orders directed to both branches would be neces-

sary to provide the desired remedy.

Baker, and later cases, have noted that a challenge to

(intra) state redistricting did not implicate the separation of

federal powers because that doctrine concerns: “the rela-

tionship between the judiciary and the coordinate branches

of the Federal Government, * * *” Baker, 369 U.S. at 210.

This case involves both the federal judiciary/executive and

federal judiciary/legislative relationship: These questions

are “essentially a function of separation of powers.” Baker,

369 U.S. at 217.

It will be noted below that there are “policy choices and

value determinations” tied to the selection of apportion-

ment method which are “constitutionally committed for res-

olution to the halls of Congress.” Japan Whaling Ass’n v.

American Cetacean Soc’y, 478 U.S. 221, 230 (1986). Such po-

litical cases are not appropriate for judicial resolution.

A last observation of Baker is also relevant to the final-

ity argument. “The political question doctrine, [is] a tool for

maintenance of government order, [and] will not be so ap-

plied as to promote only disorder.” Baker, 369 U.S. at 215.

12

The fact that states have already redistricted, creating

congressional districts intertwined with legislative and lo-

cal districts, raises additional issues of federalism and

whether states may rely on the results of congressional and

executive process. In Washington and other states, a change

at this late date would disrupt the political process, proba-

bly making it impossible to conduct 1992 elections in accor-

dance with statutory deadlines.

B. Washington’s Entitlement May Not Be Re-

voked

1. The Clerk Does Not Have Authority to

Revoke Washington’s Certificate of Enti-

tlement

Montana now suggests the appropriate remedy “is to

void the certificates of entitlement issued in January 1991”

(Mot. Affirm, p. 16, n.8).!4

However, the Clerk does not have statutory or other

authority, to revoke or modify the Certificate of Entitlement

of Washington or other states.

2 U.S.C. § 2a(b) provides that the Clerk shall issue a

Certificate within 15 days after receiving apportionment

figures from the President, and does not provide, explicitly

or otherwise, for the revocation or modification of a Certifi-

cate once it has been issued.

The word “shall” in a statute is mandatory language.

Board of Pardons v. Allen, 482 U.S. 369, 374 (1987); Bergen

v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989).

The statute even goes on to specify who “shall” perform

this duty if the Clerk does not:

In case of a vacancy in the office of Clerk, or of his ab-

sence or inability to discharge this duty, then such duty

shall devolve upon the Sergeant at Arms of the House

of Representatives; and in. case of vacancies in the offic-

es of both the Clerk and the Sergeant at Arms, or the

absence or inability of both to act, such duty shall de-

The Complaint did not pray for such relief (Mot. Affirm, App. 8).

13

— upon the Doorkeeper of the House of Representa-

ves.

2 U.S.C. § 2a(b).

This Court has held the interpretation of a statute

must begin with the statute’s language. If the statutory lan-

guage is unambiguous, in the absence of a clearly expressed

legislative intent to the contrary, that language must ordi-

narily be regarded as conclusive. United States v. Turkette,

452 U.S. 576, 580 (1981). A fundamental canon of statutory

construction is that, unless otherwise defined, words will be

interpreted as taking their ordinary, contemporary, common

meaning. Perrin v. United States, 444 U.S. 37, 42 (1979).

The plain language of 2 U.S.C. §§ 2a and 2b indicate

that the Clerk must issue Certificates in accordance with

the President’s Statement and has no authority to revoke or

modify an issued Certificate.

The legislative history of the statute, discussed below,

confirms that the Clerk cannot, without explicit statutory

authority, revoke or modify the Certificate.

2 U.S.C. §§ 2a and 2b provide that each state is “enti-

tled” to the number of seats shown in the President’s State-

ment and indicated in its respective Certificate until the

taking effect of a subsequent reapportionment. To interpret

the statutes to allow the Certificate to be changed would

render this entitlement language meaningless. It is an ele-

mentary canon of construction that a statute should be in-

terpreted so as not to render one part inoperative. Mountain

States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249

(1985). In construing a statute a court is obliged to give ef-

fect, if possible, to every word Congress used. Reiter v. Sono-

tone Corp., 442 U.S. 330, 339 (1979).

The vesting of each state’s entitlement probably occurs

at the time the President’s Statement is filed with the Con-

gress; surely it vests when the Certificate is actually issued

and received.

Thus, pursuant to 2 U.S.C. §§ 2a and 2b, once the Pres-

ident and Clerk acted, Washington was entitled to nine con-

gressional seats until the next census and apportionment

14

(in the year 2000). The Clerk has no authority to revoke or

modify a Certificate after it has been issued or to issue any

certificate varying from the Statement of the President. The

Clerk may not be ordered to perform an act he has no au-

thority to perform.

2. Legislative History Confirms That the

Certificates of Entitlement Are Irrevoca-

ble (Absent Congressional Action)

The legislative history of 2 U.S.C. §§ 2a and 2b con-

firms that Washington’s entitlement is irrevocable, short of

explicit direction by an act of Congress. There is only one

historical instance in which a state was denied a seat to

which it was entitled according to a Certificate. An explicit

act of Congress was required to take away the seat.

In 1941, Congress debated amendments to 2 U.S.C. § 2.

As required by the statute, as then written, the President

had reported the 1940 census results to the Congress in the

first week of 1941. He also reported the appropriate reap-

portionment by the two methods then prescribed by statute

(“major fractions” and “equal proportions”). The methods of

apportionment resulted in either Arkansas or Michigan get-

ting one House seat. At that time, the statute provided that

the method of apportionment used in the previous census

should continue to apply unless Congress ordered otherwise

within sixty days. The method of major fractions had been

followed in the previous reapportionment.

The Senate did not act within sixty days. 87 Cong. Rec.

8053 (1941) (Statement of Senator Vandenberg).

In commenting on this situation, and the effect if Con-

gress didn’t specifically order a change, Senator Vandenberg

stated:

When the Senate did not act within 60 days, the stat-

ute made manera by so- called ror fractions

final and conclusive and binding upon all concerned.

The case was closed; the incident was finished; and the

Clerk of the House so notified the States.

87 Cong. Rec. 8053 (1941).

15

To change that situation, it was recognized that a spe-

cific act was required.

Such a retroactive Change was bitterly opposed. The

debate confirmed the general proposition of our argument

here; unless Congress specifically acts, the Certificates are

final. A section of the bill directed the Certificates be

changed. Senator Brown vigorously objected as follows:

So I say that the one conclusion we can reach is that

while experts disagree as to the fine-spun distinction

between these two methods, the effect is to take from

Michigan the Re ntative which under the law it

now has and which the Secretary of the Senate has ad-

vised the Governor of Michigan it is entitled to. The ef-

fect is to add to Arkansas a Representative which by

the action of the Clerk of the House of Representatives,

under the Constitution, he has already advised Arkan-

sas, some 8 or 10 months ago, she does not have--in oth-

er words, that she must elect 6 Representatives in

1942, and Michigan must elect 18. This is an attempt

to change xisting law, and it is an attempt to change

120 years of history in the make-up of the apportion-

ment of the membership of the House of Representa-

tives between the different States.

87 Cong. Rec. 8078 (1941).

Senator Brown then proposed to amend the bill to ap-

ply the change only in 1950, and following apportionments:

If my amendment should be adopted, the Caraway

method of equal proportions would me the law; but

it would not be applicable to change retroactively the

resent apportionment of Representatives between the

tates of Michigan and Arkansas. It would be effective

in 1950.

87 Cong. Rec. 8083 (1941). The amendment was defeated.

Despite Senator Brown’s comments, and others, con-

cerning the inequity of retroactively applying the method,

Congress voted to make the change in method retroactive

and require new Certificates to be issued.

Section 2b of the Act of November 15, 1941 provided as

follows:

16

(b) If before the enactment of this Act a certificate has

been sent to the executive of any State under the pro-

visions of such section 22, as in force before the enact-

ment of this Act, the Clerk of the House of

Representatives shall, within fifteen calendar days af-

ter the date of enactment of this Act, send a new certif-

icate to such executive stating the number of

Representatives to which State is entitled under this

section.

Approved, November 15, 1941.

Pub. L. No. 87-291, 55 Stat. 761, 762 (1941) (originally cod-

ified as 2 U.S.C. § 2b).

The Clerk was to send a new Certificate of Entitlement

if such a Certificate had been sent prior to November 15,

1941 (as they had). Thus, the new determinations were

made, and new Certificates issued (changing only Michigan

and Arkansas).

This is the one occasion Congress was confronted with

valid Certificates that it wished to change. The avowed pur-

pose was using a fairer method of apportionment (“equal

proportions”). Congress passed a statutory amendment to 2

U.S.C. § 2 which specifically ordered the Clerk to issue

amended Certificates.

Congress’s action in 1941, and the legislative history

surrounding it, confirms that a Certificate cannot be re-

voked or modified by the Clerk unless and until Congress

enacts legislation to that effect.

3. There Should Be Finality in Congres-

sional Apportionment

There should be finality in congressional apportion-

ment because it would be harmful and disruptive to permit

endless challenges to political authority. Both federal and

state courts recognize that there should be finality in polit-

ical processes, especially procedures relating to elections.

Morgan v. United States, 801 F.2d 445, 450 (D.C. Cir. 1986),

cert. denied, 480 U.S. 911 (1987) (“The pressing legislative

demands of contemporary government have if anything in-

17

creased the need for quick, decisive resolution of election

controversies”).

Apportionment of congressional seats relates directly

to elections, since legislative districts are drawn based on

the number of seats awarded to each state. Washington, like

many other states, has already expended considerable effort

redistricting. To take a seat from Washington now would be

disruptive, requiring redistricting efforts to start again, and

undermining public confidence in our political process. By

the time such efforts could begin, the census figures would

have to be updated!® or would be more out of date than is

inevitable under the present process. In the interest of pre-

serving the integrity and finality of the apportionment pro-

cess, the Clerk should not now be ordered to revoke or

modify Washington’s Certificate at this late date. These

public consequences must surely be considered. By them-

selves, they justify denying further relief to Montana. Wein-

berger, 456 U.S. at 312.

C. The Action Should Have Been Dismissed Be-

cause Washington Is an Indispensable Party

Washington was an indispensable party to this action

but could not be joined. Accordingly, the court should have

dismissed Plaintiffs’ Complaint (Fed. R. Civ. P. 19).

Two separate inquiries should have been conducted.

First, are there parties who should be joined, either because

their own interests or the interests of the parties might be

harmed by their absence? Such parties, referred to as “nec-

essary parties,” must be joined if feasible. Fed. R. Civ. P.

19a).

Second, if a party determined to be necessary under

Rule 19(a) cannot be joined, should the action in “equity and

good conscience” be dismissed? If the court determines that

the action should be dismissed the absent party is labelled

“indispensable.” Fed. R. Civ. P. 19(b); Eldredge v. Carpenters

'The good news: updated figures would probably end Montana’s

claim since its growth has been relatively low.

18

46, 662 F.2d 534, 537 (9th Cir. 1981), cert. denied, 459 U.S.

917 (1982). The inquiry is a practical one and fact specific.

Provident Tradesmens Bank & Trust Co. v. Patterson, 390

U.S. 102, 118-19 (1968).

Rule 19a) describes two categories of persons who

should be joined.

The first category comprises those parties in whose ab-

sence “complete relief cannot be accorded among those al-

ready parties.”

Complete relief cannot be accorded without Washing-

ton in this case because the Executive Branch and Congres-

sional Appellants can not give Montana an additional

congressional seat without taking it from Washington or

some other state.

The second inquiry required by Rule 19(a) concerns

prejudice, either to the absent persons or to those already

parties. Rule 19(aX2Xi) provides that a person should be

joined if he claims an interest relating to the subject of the

action, and the disposition of the action may “as a practical

matter impair or impede [his] ability to protect that inter-

est.”

Washington was a necessary party under Rule 1% a2)

because Washington claims an interest in its congressional

seat, and the disposition of this action in Montana’s favor

may impair or impede Washington’s ability to protect its

seat. Montana’s failure to join Washington also runs a risk

of “leav[ing] * * * persons already parties subject to a sub-

stantial risk oof incurring *** inconsistent

obligations. * * *” Martin v. Wilks, 490 U.S. at 764.'®

Conilicting claims by beneficiaries to a common trust--

House membership in this case--present a textbook exam-

ple of a situation where one party may be severely preju-

diced by a decision in the party’s absence. See J. Moore et al.,

3A Moore’s Federal Practice, para. 19.08 at 19-165 (1984)

16As noted pp. 4-5, supra Washington has pending litigation to en-

join the Clerk from changing its Certificate.

19

(“Where the purpose of the suit is the disposition of a fund,

a trust, or an estate to which there are several claimants, all

of the claimants are generally indispensable.”) (quoted in

Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d

765, 774 (D.C. Cir. 1986)).

In Carey v. Klutznick, 653 F.2d 732 (2nd Cir. 1981),

cert. denied sub nom., Carey v. Baldrige, 455 U.S. 999

(1982), the court considered whether other states must be

joined in a census case in which New York sought adjust-

ment of population figures.

The Carey court, 653 F.2d at 736, stated that “House

membership is a fund in which fifty States have an interest.

No State’s share can be increased without adversely affect-

ing at least one other State. * * * The adversely affected

States therefore fall within the category of parties who

should be joined in the instant litigation if feasible.” Carey,

653 F.2d at 737.

Since Washington is “necessary” and wasn’t joined, the

court should have determined whether in “equity and good

conscience” the case should be dismissed under Fed. R. Civ.

P. 1%b).

Prejudice to any party resulting from a judgment tips

the balance towards dismissal of the suit. Washington or

some state would be prejudiced if Montana prevails and

takes one of Washington’s congressional seats.*‘ The ability

to intervene is not a factor that lessens prejudice if it re-

quires waiver of immunity. Confederated Tribes of Chehalis

Indian Reservation v. Lujan, 928 F.2d 1496, 1500 (9th Cir.

1991). Nor is amicus status sufficient to lessen prejudice.

Makah Indian Tribe v. Verity, 910 F.2d 555, 560 (9th Cir.

1990).

Only if an adequate remedy can be awarded without

the absent party may the suit go forward. Makah, 910 F.2d

at 560; Wichita, 788 F.2d at 777; Idaho ex rel. Evans v. Ore-

Rule 19 speaks to possible harm, not only to certain harm.” (Em-

phasis in original.) Aguilar v. Los Angeles Cy., 751 F.2d 1089, 1094 (9th

Cir. 1985).

20

gon, 444 U.S. 380 (1980). Although the United States was

not indispensable in that case, if either state had been ab-

sent the case ought to have been dismissed.

No shaping of relief or remedy is possible to lessen prej-

udice because the relief Montana ultimately seeks is all or

nothing--an award of an additional congressional seat,

which must necessarily be taken from Washington or anoth-

er state. !®

Here, the plaintiffs will have an adequate remedy if the

action is dismissed; Montana’s exclusive remedy is (was) in

Congress.

Since Washington is an indispensable party to this lit-

igation and can not be joined, the court below should have

dismissed Appellees’ claims.

Il. UNDER THE APPROPRIATE CONSTITUTIONAL

STANDARD, CONGRESS’S SELECTION OF THE

“EQUAL PROPORTIONS” METHOD MUST BE

UPHELD.

The history and language of article I, section 2 do pro-

vide constitutional standards to apply to congressional re-

apportionment among the states:

First: No state may be denied a representative: “each

state shall have a least one representative.” U.S. Const. art.

I, § 3.

Secondly, the apportionment must be tied to the popu-

lation of the states “according to their respective numbers.”

U.S. Const. art. I, § 2. A correlative test that may be derived

from this text (and its history) is that for any pair of states,

no state may be assigned more representatives than a state

18Montana could, of course, ask the Court to order expansion of the

House. As noted (p. 2, n.3 supra), this may require more than one addi-

tion since other states have a better claim than Montana.

21

with a population larger than its pair.!? Arguably, the same

treatment of fractional remainders is required (a state with

.40 like Montana is constitutionally barred from getting a

seat before a state with a higher remainder like Washington

or Massachusetts).

Any reapportionment meeting these tests should pass

constitutional scrutiny. Clearly, the current “equal propor-

tions” method meets those standards.

The sole issue raised in this litigation is the assign-

ment of representatives to states with fractional remain-

ders. None of the historical formulas considered by

Congress have ever resulted in one state getting no repre-

sentatives, or fewer representatives than a less populous

state (“equal proportions” can not do so). Therefore, no ap-

portionment approved by Congress has been unconstitu-

tional.

A case quite close to Montana’s was specifically dis-

cussed at the Constitutional Convention: “A State might

have one Representative only, that had inhabitants enough

for 11/2 or more, if fractions could be applied. * * *” 2 The

Records of the Federal Convention of 1787, 358 (Farrand ed.

1937) (statement of Oliver Elsworth).2° Here Montana

(with 1.404) has a lesser claim than Elsworth’s fictional

state described (1.5 plus).

Issues of fairness and equity, such as quota (n.18,

above) are policy questions for Congress. These issues are

textually committed to Congress. The power to apportion

“irresistibly flows” from Congress’s article I, section 2 pow-

194 third test of fairness has been proposed since the time of the

Constitution; that of meeting “quota” or the “Rule of Three”; a state must

receive a share equal to its percentage of the national population times

the total number of representatives rounded either up or down to a whole

number (M. Balinski & H. P. Young, Fair Representation 14 (1982)).

2°The context was a proposal to tie taxes to the representatives. By

the time of this statement, the apportionment issue “Great Compromise,”

had been resolved (described briefly infra, p. 22).

22

ers. Prigg v. Penn, 41 U.S. at 619 . Such issues are excluded

from judicial review. Japan Whaling, 78 U.S. at 2860.

It will be shown below that “equal proportions” is best

if judged by such standards, but they are not constitution-

ally-derived standards. With specific regard to the issue of

“quota,” it can be mathematically demonstrated that the

Dean method has a higher probability of violating quota

than the present “equal proportions” method (supra, p. 20).

Article I, section 2, clause 3 of the United States Con-

stitution provides that representatives be apportioned

among states according to numbers. The Framers selected

numbers rather than wealth or property as the basis for al-

locating representatives among the states. 1. Farrand, p.

606. It reflected the demand of the large states that repre-

sentation in one of the two houses be based on size. The pri-

mary command of article I, section 2, according to the

Framers, is that each large state gets more representatives

than every smaller state. “The proportional representation

in the first branch was conformable to the national principle

& would secure the large States agst. the small.” 1. Far-

rand, p. 468 (Statement of Elsworth).

Franklin described the basis of the Great Compromise:

If a proportional representation takes place, the small

States contend that their liberties will be in danger. If

an equality of votes is to be put in its place, the large

States say their money will be in danger. When a broad

table is to be made, and the edges (of planks do not fit)

the takes a little from both, and makes a good

joint. _

1. Farrand, p. 488. Article I, section 2 was intended to meet

the demand of the large states for a population-derived

House and thereby induce them to join the “broad table.”

The fraction problem inherent in congressional appor-

tionment has no single solution--Congress has handled it

for 200 years without judicial interference. The Framers ig-

nored the problem in focusing on the issue of balancing be-

23

tween large and small states (1. Farrand, pp. 559-561, 602).

So also did the first Congress, by selecting a round number

of population per representative, and utilizing the Jefferson

method to apportion between states until 1842.7!

The choice of method to deal with fractional remain-

ders is determined by Congress’s selection of the goal. It re-

quires choosing between intricate, somewhat incomprehensible

(to the layman) mathematical models and formulae.

This litigation can and should be resolved without re-

sorting to square roots, harmonic means and major frac-

tions; without the Dean, Hill, Webster, and Vinton methods.

Very simply, this Court need only recognize that no consti-

tutional principle is implicated in Congress’s choice of a so-

lution to the fractional remainder problem (so long as the

constitutional imperatives discussed above are satisfied).

A. Wesberry Tests Do Not Apply to Congressional

Reapportionment of Representatives Among the

Several States

The district court concluded that article I, section 2

“provides no textual basis upon which to distinguish the du-

ties of Congress from the duties of state legislatures.” (J.S.,

9a-10a)

This conclusion is flawed, however. Wesberry dealt with

clause 1 of article I, section 2; Apportionment among the

states deals with article I, section 2, clause 3.

Not only does the Constitution not mandate applica-

tion of Wesberry’s one man one vote principle in apportion-

ing between the states, it forbids it in requiring “each state

shall have at least one representative,” no matter how small

its population, and in requiring apportionment “among the

*! Act of Apr. 14, 1792, 1 Stat. 253 (one representative per 33,000

persons); Act of June 14, 1802, 2 Stat. 128 (33,000); Act of Dec. 21, 1811,

2 Stat. 669 (35,000); Act of Mar. 7, 1822, 3 Stat. 651 (40,000); Act of May

22, 1832, 4 Stat. 516 (47,700). (J.S., p. 5, n.5.)

24

several states,” which inevitably raises the fractional re-

mainder problem to be dealt with by Congress.””

The first and all early Congresses dealt with the prob-

lem by disregarding it, using the Jefferson method, which

discards fractional remainders. That this was not violative

of any constitutional mandate is confirmed by the provision

of a statistical method to calculate states’ representation by

setting a fixed (round number) of population per represen-

tative; “one representative for every thirty thousand.” Frac-

tional remainders were inevitable in such a calculation

method.

The court cites Wilson comments to the contrary (J.S.,

10a). His discussion was part of the early debate over

whether representation would be per state (as in the Arti-

cles of Confederation) or related to population. Wilson sure-

ly was not advocating any one man one vote precise

Wesberry standard for interstate apportionment in 1790.

None of the founders ever advocated such a standard, either

at the Convention, or later in Congress. As noted in the

Elsworth statement quoted above (p. 22), the contrary re-

sult was anticipated; a state like Montana, even with a pop-

ulation equal to 1.5 representatives would get only one.

1. Congress Acted in Good Faith in Selecting

“Equal Proportions”

Assuming arguendo that the Wesberry analysis is ap-

plicable by analogy to this case, the first burden is on the

challenger. Montana must show “that the population differ-

ences were not the result of a good-faith effort to achieve

equality.” Karcher, 462 U.S. at 730, 731.

In defense, the appropriate measure of equality to be

applied and whether the apportionment meets it “as nearly

as is practicable” then must be shown. Wells v. Rockefeller,

394 U.S. 542, 544 (1969).

221f state borders could be disregarded, there would be no problem.

25

Washington vigorously disputes that Montana has

shown Congress to have acted in bad faith--or failed to act

in good faith. The “equal proportions” method was chosen

after 150 years of experimentation and consideration of al-

ternate apportionments, and implemented as recommended

by a non-partisan Nationa! Academy of Sciences committee

(NAS) and the vast weight of scholarly analysis. It can not

be suggested that the method was selected to discriminate

against, or prejudice Montana, or its various plaintiff repre-

sentatives in this action since it was selected with no idea of

the impact on Montana.

If this Court determines that it (or a federal court)

rather than Congress ought select the method of apportion-

ment for the United States House, the recommendations of

the NAS justification for its application, argue strongly in

favor of the method of “equal proportions” as meeting equi-

table requirements “as nearly as is practicable.”

B. “Equal Proportions” Is the Best Method of

Reapportionment for Congress”*

1. Historical Scientific Support for “Equal

Proportions”

On several occasions, Congress has relied upon the ex-

pertise and objectivity of NAS to advise on the best formula

to apportion. On each occasion NAS concluded the “equal

proportions” method was superior. NAS’ first report con-

cluded “it [equal proportions] occupies mathematically a

neutral position with respect to emphasis on larger and

smaller states.” (Report of NAS, Fiscal Year, 1928-29, pp. 20-

23, quoted in Ernst Decl. J.A. 24). In 1948, a NAS report

concurred with the earlier conclusions (Morse, Report to the

President of the National Academy of Sciences (1948)).

*3The label is a conclusion from Congressional Reapportionment, a

1929 article in 42 Harv. L. Rev. 1014 at 1020.

26

The “equal proportions” method had actually been pub-

licly debated, analyzed and compared with alternatives for

several years preceding the 1929 report.

One earlier analysis compared “equal proportions” and

each of the other viable alternatives (including “harmonic

means” or the Dean method) and concluded “both mathe-

matical and political reasons point to the Method of Equal

Proportions as the best plan for a just apportionment.” 42

Harv. L. Rev. at 1047.24

In 1970, a House committee recommended retention of

the “equal proportions” method. H.R. Rep. No. 1314, 91st

Cong. 2d Sess. (1970).

In 1981, congressional testimony considered eight dif-

ferent alternatives (e.g. testimony of Leon Gilford before

House Post Office and Civil Service Committee, Sub-Com-

mittee on Census and Population June 11, 1981 at p. 69 lists

the eight). No change from “equal proportions” was recom-

mended. This was after Wesberry and most of the cases

Montana relied upon.

2. Advantages of “Equal Proportions” Over

The Dean Method

The lower court's preferred method, the Dean method,

has numerous severe disadvantages compared with “equal

proportions.” Among them, the Dean method does not (and

is not intended to) minimize differences in each person’s

share of a representative (Ernst Decl. J.A., p. 8). This test,

to minimize differences in each person’s share of a represen-

tative:

(Is a better test of ‘one person one vote’ for districts be-

tween states since it measures the ion of a vote

(member) to which a person is enti ed in the House

*4Mathematical treatises and articles during the same period eval-

uating the methods and concluding that equal proportions was the most

equitable methodology are listed in Fair Representation, p. 182, nn. 13,

14, 16, 19, 21.

27

Ernst Decl., J.A. p. 26.

In arriving at a contrary decision, the district court ac-

cepted and relied upon the findings of one affiant. (See cita-

tions to “Tiahrt” (J.S., p. 13a)). His testimony is contrary to

that of the other witnesses (and to the weight of prior math-

ematical analysis e.g., n.22). The dissent accurately notes

he was quite wrong on at least one assertion; his claim that

“the Dean method produces the smallest variance or stan-

dard deviation.” Tiahrt Affidavit, (Mot. Affirm, App. 15). It

was pointed out by countering affidavit, and later conceded

by Montana (J.S., p. 31a), that the “equal proportions” (Hill

method) formula produces the least variance.

When all states are considered, “equal proportions” is

far superior (total variance 661,320,400 with, “equal pro-

portions”; 681,742,400, with the Dean method). (Ernst

Decl., J.A., p. 29.)

Not only was (is) this result true for the 1990-91 cen-

sus, but “it can be shown mathematically that the ‘equal

proportions’ method minimizes this (total) variance among

all apportionment methods and all sets of populations.”

(Ernst Decl., J.A., p. 30.)

Even the variance total between the two states of

Washington and Montana is less under “equal proportions”

(495,438). Under the Dean method it is 649,492. This is only

a two state comparison, of course.

The dissent also noted the inequitable application in

this case of the Dean method. Under the present allocation

a Washington resident has a share of a representative 48%

larger than a Montana resident (and a Montana district is

48% larger than Washington). With the Dean method, and

a transfer of one seat, Washington’s districts become 52.1%

larger than Montana’s (and the share of a representative

52.1% less) (J.S., p. 29a).

25Summary judgment may have been inappropriate, to the extent

the court viewed any of Montana's expert's assertions as “facts” they were

contested. His vitae indicates he has no prior expertise in the area of elec-

tions or census statistical analysis. (Mot. Affirm, App. 16.)

28

On a higher level of abstraction, the methods have

been analyzed for bias ratio”® (favoring small versus large

states) as if they had been applied over the whole of United

States history (19 reapportionments, as of 1980). The result

is shown in Fair Representation, p. 124 Table A5.1. The

Dean method resulted in a 56.6% bias ratio; “equal propor-

tions” (the Hill method) only 54.6% (the smaller score shows

less bias).

Such a historical overview is appropriate when consid-

ering adopting any method for long-range application.

Although neither system violates “quota” this decade,

it is possible to calculate the theoretical probability of vio-

lating quota (per 1000 “problems”). The results are Dean

method: 15.40; Hill method: 2.86 (Fair Representation, p. 81

Table 10.3). A violation of quota is, arguably, one of the vio-

lations of the constitutional constraints (see p. 20, n.18). It

is proper that Congress or a court select a method for long-

term application that offers the lower probability of such

quota violation.

CONCLUSION

For the above reasons, and those set forth in the Brief

of the United States, the judgment below must be reversed

and the action ordered dismissed.

Dated this 15th day of January, 1992.

Respectfully submitted,

KEN EIKENBERRY

Attorney General

JAMES M. JOHNSON*

Sr. Assistant Attorney General

CAROLE A. RESSLER

Assistant Attorney General

Attorneys for Amicus

*Counsel of Record

26Counting, for each census year, the pairs of states in which small-

er states would have been favored and dividing by total pairs.

as of 1/12/92

Redistricting Update

31

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APPENDIX B

APPENDIX A Certificate of Entitlement

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HOUSE OF REPRESENTATIVES

OFFICE OF THE CLERK

WASHINGTON, D.C.

I, Donnald K. Anderson, Clerk of the House of

Representatives of the United States, Hereby Certify,

Pursuant to the Provisions of Title 2, United States

Code, Section 2a (b), That the State of

WASHINGTON

Shall be Entitled, in the One Hundred Third

Congress and in Each Congress Thereafter Until a

Subsequent Reapportionment Shall Take Effect

Under Applicable Statute, to

NINE REPRESENTATIVES

in the House of Representatives of the Congress of

the United States.

and Wyormung have only one congressional! seat and are not required

to redistrict.

Source National Conference of State Legislatures (updated)

US. Justice Department before becorning law

* The Justice Department has objected to the NC Congressional!

redistricting plan.

* Plans from GA, NC, VA and MS must receive approval from the

* Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont

BS congressional Plan Completed

Notes.

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fA Cote ale, DALI LAL.

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