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Our Unconstitutional Reapportionment Process

46 Pages Posted: 14 Aug 2017 Last revised: 2 Nov 2017

Gerard N. Magliocca

Indiana University Robert H. McKinney School of Law

Date Written: August 11, 2017


This Article argues that the process used to reapportion representatives among the states after each census violates Section Two of the Fourteenth Amendment. Section Two states that the apportionment of representatives must be done based on population unless a state disenfranchises a sufficient number of people who are presumptively eligible voters. The reapportionment statutes say that apportionment must be done based only on population. By erasing Section Two’s penalty clause, these statutes are unconstitutional. There is time for Congress to correct this error before the next census. If not, then the courts should declare the next reapportionment null and void.

Suggested Citation

Magliocca, Gerard N., Our Unconstitutional Reapportionment Process (August 11, 2017). George Washington Law Review, Forthcoming. Available at SSRN: or

Gerard N. Magliocca (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States
317-278-4792 (Phone)

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