Press Release: 10/13/2020

Oral Argument Held on 10/13 for Equal Representation in the House of Representatives

New York City: The Second Circuit Court of Appeals held a hearing of oral argument today for the constitutional lawsuit (CASE # 19-3054) filed by Equal Vote America Corp. (EVA) against Congress demanding equal representation for all Americans in the House of Representatives.

The hearing (via Teleconference) was presided by the Honorable Debra Ann Livingston, Chief Judge, United States Court of Appeals for the Second Circuit along with a panel of three additional judges.

During the hearing the Appellant and the Attorney for the Defendants were given five minutes each to present the case.

The Appellant delivered the following facts and arguments to the Panel.

1. On April 23, 2020 Governor Cuomo said, and according to the Rockefeller Institute, between 2015 and 2018, New York state has paid $116 billion more to the federal government than received in federal spending. That means a financial inequity of about $1500 for every New Yorker per year.
2. Every American is subject to the same federal tax coeds regardless of state residence.
3. The root cause for the American Revolution was “Taxation without Representation”.
4. Therefore, we are convinced our Founding Fathers would have agreed, financially we have the standing in this case.
5. Such financial inequity and economical injury were resulted from the unequal representation in the House of Representatives under the existing reapportionment laws enacted by Congress.
6. Ultimately, this is a case of violation of voting right. The value of every New Yorker in elections for the House is worth less than 80% of a person in Wyoming.
   • At this point the Panel asked, “are you saying New York state should have had more seats in the House?”
   • The Appellant responded, “yes, your Honor, based on the 2010 Census and the Constitution, New York state should have had at least 7 more seats than the 27 we have at the present.”
7. By definition violation of voting right has always been widely suffered and shared by a large group of people. In S. v. Students Challenging Regulatory Agency 1973 and FEC v. Akins, 1998, the Supreme Court found injury in fact even if such harm is widely shared.
8. Furthermore, in three landmark cases, Baker v. Carr 1962, Reynolds v. Sims 1964, and Wesberry v. Sanders 1964, the Supreme Court clearly ruled that the plaintiff’s Equal Protection of Law was violated, the right to vote is protected by the Constitution, the plaintiff had the standing, and the Court has the power and duty to review such constitutional violations.
9. Most importantly, the Constitution provides:

• Article I, §2 Clause 3 mandates Representatives and direct Taxes shall be apportioned by population;
• Article IV §2 guarantees every citizen in every state the same Privileges and Immunities regardless of state residence;
• The Fourteenth Amendment §2 guarantees the right to vote in any election including “Representatives in Congress” not be abridged in any way.

10. Since a person in Wyoming is guaranteed full representation in the House, then every New Yorker, as well as every American in every state, shall be guaranteed the same and equal representation in the House, no more and no less.
11. Essentially Congress has violated the Great Compromise reached by the founding fathers and violated 95% of Americans’ voting right in elections for the House of Representatives.
12. Finally, the Appellant quoted George Orwell’s Animal Farm,

“All animals are equal, but some animals are more equal than others.”

Hence the Appellant respectfully asks for the Court’s judicial review and prove

America is NOT an Animal Farm.

The Attorney of the Defendants attempted to argue that the Plaintiff/Appellant has no standing to sue, but was quickly and repeatedly questioned by the Panel who cited the previous Supreme Court decisions including Department of Commerce v. Montana 1992.

The Appellant used the 1-minute rebuttal to answer the Panel’s question:

• In Montana case the Supreme Court also affirmed the Plaintiff’s standing;
• However, the state of Montana sued the wrong party because Dept of Commerce simply follows the law and conducts census, it was Congress that had enacted reapportionment laws that are unconstitutional;
• the state of Montana asked the Court to allow it keep its two seats;
• the Supreme Court rejected such request essentially because it would not produce an equitable solution for the other states, but indicated it was open for further consideration in the future.

At this point Chief Judge Livingston adjourned the session.

It is the Appellant’s impression that the Panel appeared to be sympathetic to our case, and we are convinced that we have a very strong case based on:

• the root cause of American Revolution and Independence;
• Our founding fathers’ original intent – the Great Compromise (at one point, the Panel indicated it’s fully aware of the history of the Great Compromise);
• Multiple specific textual provisions in the Constitution;
• Multiple previous decisions by the Supreme Court;
• And the simple undisputable fact that over 95% of Americans have been deprived of equal representation in the House of Representatives.

With no constitutional basis, the 71^st Congress enacted the Reapportionment Act 1929 with a cap of 435 seats for the House Representatives. Such cap together with the so-called Equal Proportions method has caused unequal representation.

The Appellant has proposed the Modified Wyoming Rule as follows:

1. Currently Wyoming has the least population c.a. 600K, which is to be the baseline and the common denominator.
2. Divide all other 49 states’ population by the common denominator.
3. For example, NYS’s population of 20 million is divided by Wyoming 600K, the resultant quotient is rounded to 33.3. Therefore, NYS will get 33 members in the House, the first 32 have 1 vote each, the 33^rd member would have a vote value of 1.3 representing a larger district.
4. Another example for Montana, its population 1.07 million is divided by 600K, the resultant quotient is rounded to 1.8. Therefore, Montana will have 1 member in the House, but this sole member has a vote value of 1.8 fully representing its 1.07 million residents.

The Modified Wyoming Rule ensures equal representation for every American in every state with a variance within +/-4%, which represents a near precision demanded by Thomas Jefferson, and a true good-faith effort demanded by the Supreme Court in previous case.

Fellow Americans, this lawsuit fights for equal representation for every American in every state, hence this is NOT a partisan issue.

Citizens from 40 states have joined  this lawsuit by completing the Online Affidavit. Come join us, together, let’s demand Congress to pass a new Reapportionment law that honors our Founding Fathers’ founding agreement and complies with the Constitution by ensuring equal representation for every American in the House of Representatives.

For more information, please visit http://equalvoteamerica.org/

Previous Press Releases:

2019/01/11; 2019/02/18; 2019/03/26; 2019/04/11; 2019/04/26; 2019/09/28

****** The History ******

At the Constitutional Convention 1787, James Madison proposed the Virginia Plan in which the population would elect the members of the lower house, which in turn would elect the members in the upper house. William Patterson countered with the New Jersey Plan, which called for equal representation of each state in a unicameral legislature. The convention almost fell apart until the founding fathers reached the Great Compromise — literally the founding agreement for the Union — to establish a bicameral legislature where the populace was represented in the House of Representatives, and the states were represented at the Senate. Hence, the Constitution provides:

• Article I, § 2 Clause 3 & the 14^th § 2: the number of house seats shall be apportioned by state population;
• Article I, § 3 Clause 1: each state shall have 2 senators in the Senate regardless of population.

In 1792 Washington, advised by Jefferson, exercised the very first presidential veto over the first apportionment bill precisely because these two founding fathers felt the bill failed to comply with the aforementioned founding agreement.

****** The Current Situation ******

However, the current apportionment laws since 1929 have caused significant unequal representation in the House of Representatives. Based on the 2010 Census Data, for example:

• Wyoming’s pop. of 563,626 gets 1 house seat => 1 HS per 563,626 persons, fully represented;
• Florida’s pop. of 18,801,310 gets 27 house seats => 1 HS per 696,345 persons, 19% of Floridians taxed without representation;
• Texas’s pop. of 25,145,561 gets 36 house seats => 1 HS per 698,488 persons, 19% of Texans taxed without representation;
• California’s pop. of 37,253,956 gets 53 house seats => 1 HS per 702,905 persons, 20% of Californians taxed without representation;
• New York’s pop. of 19,378,102 gets 27 house seats => 1 HS per 717,707 persons, 21% of New Yorkers taxed without representation;
• Montana’s pop. of 989,415 gets 1 house seat, the worst among all states, 43% of Montanans taxed without representation;
• on the other hand, Rhode Island’s pop. of 1,052,567 gets 2 house seats, over-represented.
• Nationwide, 63,568,228 of 308,745,538, or 20.6% of national population, have been taxed without representation.

CA, TX, NY and FL have been deprived of at least 13, 9, 7 and 6 house seats, respectively. In fact, residents of 39 states (over 95% of national population) have been under-represented by at least 110 house seats in total. Click MyState to see how many house seats your state has been deprived of. Click here for State-by-State Unequal Representation.

***** Congress Has Violated … ******

Therefore, Congress has collectively dishonored the founding agreement reached by the founding fathers, and violated Article I, § 2 & the 14^th Amendment § 2. Furthermore, the significant under-representation in the House of Representatives has violated over 95% of Americans’ constitutional rights with respect to …

• Equal Representation in the House under Article I, § 2,
• Voting Right in presidential elections guaranteed by Article II, § 1;
• Equal Citizen Privileges guaranteed by Article IV, § 2;
• Freedom of Speech guaranteed by the First Amendment;
• Due Process guaranteed by the Fifth Amendment;
• Citizen Privileges, Due Process, Equal Protection and Equal Voting Right under the Fourteenth Amendment.

It must be also noted that the Founding Agreement reached by our Founding Fathers has two sides, the House and the Senate. If the blatant breach on the Equal Representation in the House is not rectified, then the two-seat for every state at the Senate shall be declared illegitimate and no longer constitutional. Were our Founding Fathers alive today, they would have been outraged, and Washington and Jefferson would certainly have vetoed the Reapportionment Act of 1929 as they did in 1792.

***** Why We Filed This Lawsuit ******

In the fable Animal Farm by George Orwell, “All Animals are Equal, but Some Animals are More Equal than Others.”

As proud Americans, we believe America is not such Animal Farm, and all Americans shall be equally represented in the House regardless of state residence according to our Founding Fathers’ Founding Agreement and the Constitution.

Our lawsuit has become a grass-root movement as more and more ordinary citizens from 13 states (AZ, CA, FL, IA, KY, MA, MO, NY, NJ, OR, TN, TX, and VA) have signed up to be co-plaintiffs  in our lawsuit demanding Congress to pass new apportionment laws to ensure Equal Representation for all Americans of all 50 states. Fellow Americans, please …

•  join our lawsuit by completing the Online Affidavit; 
• urge your U.S. House Representative and two U.S. Senators to pass a new apportionment law according to the Founding Agreement and the Constitution.

***** The Remedy Sought ******

The redress that Plaintiff is seeking is simply for the Court to make a declaratory judgment – as the Supreme Court clearly did in Wesberry v. Sanders (1964) – such as follows:
The Apportionment Acts of 1911, 1929 and 1941 are unconstitutional with respect to the Great Compromise, Article I, § 1 & 2, Article IV, § 2, the First Amendment, the Fifth Amendment and the Fourteenth Amendment. Every American’s rights to equal representation in the House and equal vote in any election shall not be denied, diluted, debased, diminished, demeaned, disadvantaged, or manipulated in any way by any means on any account.

**** FQAs ******

What is the Great Compromise?

• At the Constitutional Convention 1787, James Madison proposed the Virginia Plan which included a bicameral legislature. The population was to elect the members of the lower house which in turn would elect the representatives in the upper house. William Patterson put forward a counter proposal, the New Jersey Plan, which called for equal representation of each state in a unicameral legislature. The convention fell into a deadlock until Roger Sherman from Connecticut proposed a compromise.
• To balance the interest between the more populous states and the less populous states, our founding fathers reached the Great Compromise, which was literally the founding agreement for the Union. It established the bicameral national legislature where the populace was represented at the House of Representatives, while the states were represented at the Senate.

According to the Great Compromise, the Constitution Provides:

• Article I, § 2 Clause 1: the House of Representatives shall be elected by the People;
• Article I, § 2 Clause 3: the number of house seats shall be apportioned by each state’s population;
• Article I, § 3 Clause 1: each state shall have 2 senators in the Senate regardless of population.

Do You Know the Original First Amendment?

• In fact, the original first amendment was proposed by Madison to tie the number of the house seats to national population.
• It was ratified by eight states, only one state short to be fully ratified.

Do You Know the First Presidential Veto?

• On April 5, 1792, Washington, convinced by Jefferson, exercised the very first presidential veto in the U.S. history to reject a Congressional bill that introduced a new plan for allocating house seats among states.
• Washington and Jefferson found the bill unconstitutional and liable to be abused in the future.
• Jefferson said, “If the [ratio of] representation [is] obtained by any process not prescribed in the Constitution, it [then] becomes arbitrary and inadmissible” and suggested apportionment instead be derived from “arithmetical operation, about which no two men can ever possibly differ.”
• Washington’s veto sent the bill back to Congress, which in turn drafted a new bill that apportioned representatives at “the ratio of one for every thirty-three thousand persons in the respective States.”

What are the existing apportionment laws?

• The 1911 Apportionment Act capped the number of house seats at 435.
• The Reapportionment Act of 1929 established a permanent method for reallocating the 435 seats among the states.
• The Apportionment Act of 1941 made the apportionment process self-executing after each decennial census.
• Congress has used the following Apportionment Formulas to determine which state gets the next available seat.
• Therefore, in terms of the right to equal representation at the House, some Americans get higher priority than the others based on state residence.

The Triple-Injustice for over 95% of Americans:​

• The more populous states already suffer huge disadvantage at the Senate, e.g. both CA of 37.2 million and WY of 0.6 million have 2 senators.
• Having been deprived of the number of house seats entitled by the founding agreement and the Constitution, the more populous states hence suffered the double-disadvantage.
• Furthermore, the more populous states have fewer electoral votes than they should have in the presidential elections, hence being condemned to the Triple-Injustice.