The Ninetieth Congress Voted to Severely Limit Mid-Decade Redistricting

Michael L. Rosin*

In a recent post at Election Law Blog, Notre Dame Law Professor Derek Muller has suggested that federal law, namely 2 U.S.C. § 2a(c) (originally enacted in 1941¹) and 2 U.S.C. § 2c (originally enacted in 1967²), might already prohibit mid-decade redistricting.³ Alas, they don’t.

As the Supreme Court noted in Wood v. Broom (1932), § 22 of the Reapportionment Act of 1929⁴ did not renew the compactness, contiguity, and equal population provisions for single-member districts, found in § 3 of the Apportionment Act of 1911,⁵ which had “expired by their own limitation.”⁶

The 1941 Act did not address those provisions from the 1911 Act.⁷ Indeed, the 1941 Act did not even require states to draw districts.⁸ In the words of its probable author, Senator and future Supreme Court Justice Harold Burton, the 1941 Act “merely writes into the law the situation as it seems to be now settled by decisions of the courts. It clarifies and lends authority to the existing practice.”⁹

When he transmitted the results of the 1950 census to Congress, President Truman called for legislation reinstituting the provisions of the 1911 Act.¹⁰ New York Democratic Representative Emmanuel Celler responded by introducing H.R. 2648, a “bill to require the establishment of congressional districts composed of contiguous and compact territories in the election of Representatives.”¹¹ It would take Celler over a decade to get such a bill passed.

In 1965 the House passed H.R. 5505.¹² In addition to the compactness, contiguity, and equal population provisions,¹³ it also included a provision allowing a state to make no more than one mid-decade redistricting that “may use” a special, mid-decade census¹⁴ as prescribed by a 1957 act.¹⁵ The bill never emerged from the Senate Judiciary Committee.¹⁶

Senate approval of such legislation would come two years later.¹⁷

As passed by the House, Celler’s bill (H.R. 2508) required that no later than the Congress that would convene in 1973, all states draw single-member districts that were contiguous and compact and with population variation of no more than 10 percent.¹⁸ In addition, no state could implement mid-decade redistricting more than once a decade, and it would have to be based on a special, mid-decade census paid for by the state.¹⁹ For the Congresses that would convene in 1969 and 1971, the bill relaxed the variation allowed to 30 percent and also allowed New Mexico and Hawaii to continue to elect their two representatives at large.²⁰

The Senate Judiciary Committee made minimal changes to the House bill. As reported back to the Senate, the bill relaxed the variational requirement for the next two Congresses from 30 percent to 35 percent.²¹ It also limited the single-member district exemption to New Mexico.²²

Almost immediately, Massachusetts Democrat Edward Kennedy, a Senate Judiciary Committee member, proposed amendments that would eliminate the delay of any requirements until 1973.²³ His amendment also allowed a state to redistrict “more often than once in each ten-year period,” provided it employed a special, mid-decade census, not more than two years old.²⁴ The Senate approved Kennedy’s amendment by a vote of 44–39²⁵ and the bill as a whole by a vote of 57–25.²⁶

A conference committee would be needed to reconcile the differences between the two versions of the bill. The Senate took no time appointing Chairman Eastland and Senator Kennedy to the committee along with fellow Democrats John McClellan (D-AR), Sam Ervin (D-NC), and Republicans Everett Dirksen (R-IL) and Roman Hruska (R-NE). Of these six, only Kennedy had voted for the final bill.²⁷ (Eastland did not vote.²⁸)

The conference committee initially recommended adoption of the Senate version,²⁹ but the House soon recommitted the bill back to the conference.³⁰ That gave opponents the opportunity to gut the bill. Tennessee Republican Senator Howard Baker said that “not one provision of the amended Senate version of this bill was retained in conference.”³¹ The only contents left in the bill were a provision exempting New Mexico and Hawaii from districting until 1973 and a provision relieving any state from redistricting prior to the Congress that would convene in 1973.³² Sam Ervin said, “the Senate conferees were not willing to give the Federal courts authority to be the final judge as to the size and shape of every congressional district in the United States.”³³

The House acquiesced to the compromise bill by a vote of 241–106³⁴ after much protest.³⁵ The Senate voted it down by an overwhelming 22–55.³⁶ The next bill on the Senate calendar that had already passed the Judiciary Committee was H.R. 2275, an immigration bill “for the relief of Doctor Ricardo Vallejo Samala.”³⁷ Senators Baker and Bayh made it the vehicle for carrying the most modest of changes requiring states to elect representatives from single-member districts, with New Mexico and Hawaii granted exemptions until 1973. It is now codified at 2 U.S.C. § 2c.³⁸

In 1967, each chamber of the Ninetieth Congress passed legislation that would have severely limited a state’s ability to engage in mid-decade redistricting. The House bill would only allow a single mid-decade redistricting. The Senate version would allow more. All of these redistrictings would have to have been based on a special census conducted by the federal government at the expense of the state. Emmanuel Celler estimated that such a census would cost a state about twenty-five cents per person and take about one year.³⁹ Clearly, the mid-decade redistrictings contemplated were intended to respond to demographic changes in a state rather than just-in-time partisan advantage.

Just before the House vote meekly accepted the compromise bill, a freshman member who would vote against the bill

“[p]lead[ed] for districts which [are] not only reasonably close in population but which would be reasonably compact and certainly contiguous. It is essential that we have some language which will protect the people against gerrymandering.”⁴⁰

His name was George H. W. Bush.⁴¹

Of course, the votes in the Ninetieth Congress on separate versions of legislation have no legal force. But they demonstrated that Congress’s opposition to gerrymandering in general and mid-decade redistricting in particular. It should have continuing moral force.

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* Michael L. Rosin (mlrosin@att.net) is an independent scholar. He holds an M.A. from the University of Pittsburgh (1976), an M.Sc. (Econ.) from the London School of Economics (1975), and an A.B. from the University of Chicago (1973).

1. Act of Nov. 15, 1941, ch. 470, § 22(c), 55 Stat. 761, 762 (discussing the manner of election until a state is redistricted). ↩︎
2. Act of Dec. 14, 1967, Pub. L. No. 90-196, 81 Stat. 581 (providing relief to Doctor Ricardo Vallejo Samala and congressional redistricting). ↩︎
3. Derek Muller, Does Federal Law Already Prohibit Mid-Decade Redistricting?, Election Law Blog (Dec. 1, 2025, at 17:31 CT), https://electionlawblog.org/?p=153251 [https://perma.cc/BMN6-GET5]. ↩︎
4. Reapportionment Act of 1929, ch. 28, § 22, 46 Stat. 21, 26–27. ↩︎
5. Apportionment Act of 1911, ch. 5, § 3, 37 Stat. 13, 14. ↩︎
6. Wood v. Broom, 287 U.S. 1, 7 (1932). ↩︎
7. See generally Act of Nov. 15, 1941, ch. 470, § 22(c), 55 Stat. 761, 762. ↩︎
8. See id. (“Until a state is redistricted in the manner provided . . . .”). ↩︎
9. 87 CONG. REC. 8056 (1941). ↩︎
10. 97 CONG. REC. 114 (1951). ↩︎
11. Id. at 1276. ↩︎
12. 111 CONG. REC. 5101 (1965). ↩︎
13. Id. at 5098. ↩︎
14. Id. (“The bill provides that if a State has redistricted during the last decennial census the most recent Federal special census may be used to determine whether a district meets this criteria.”). ↩︎
15. Act of Aug. 28, 1957, Pub. L. No. 85-207, 71 Stat. 481. ↩︎
16. 111 Cong. Rec. 5386. ↩︎
17. See infra text accompanying notes 21–26. ↩︎
18. H.R. Journal, 90th Cong., 1st Sess. 532 (1967). ↩︎
19. 113 Cong. Rec. 30242 (1967). ↩︎
20. H.R. Journal, 90th Cong., 1st Sess. 532. ↩︎
21. 113 CONG. REC. 14773. ↩︎
22. See id. ↩︎
23. Id. at 14779. ↩︎
24. Id. ↩︎
25. Id. at 15243. ↩︎
26. Id. at 15244. ↩︎
27. Id. ↩︎
28. Id. ↩︎
29. Id. at 17509. ↩︎
30. Id. at 17738. ↩︎
31. Id. at 31702. ↩︎
32. H.R. Journal, 90th Cong., 1st Sess. 1130 (1967). ↩︎
33. 113 CONG. REC. 31696. ↩︎
34. 113 CONG. REC. 30251. ↩︎
35. See 113 CONG. REC. 30239–51 (disagreeing over the bill’s provisions). ↩︎
36. Id. at 31712. ↩︎
37. Id. at 31718. ↩︎
38. 2 U.S.C. § 2c. ↩︎
39. 113 CONG. REC. 30242. ↩︎
40. 113 CONG. REC. 30245. ↩︎
41. Id. ↩︎