Delaware residents file lawsuit seeking a second House seat for the First State

A pair of Delaware voters filed a lawsuit Tuesday against Commerce Secretary Howard Lutnick in an effort to increase Delaware’s representation in Congress.

The two plaintiffs, University of Delaware professor David Redlawsk and Delaware resident Kevin Price, argue that Delaware residents are underrepresented in the House, with only one at-large seat for roughly 991,000 people.

That’s less representation per person than in any other state, they argue, noting that Montana — with just under 1.1 million residents — has two House seats.

“The 435-seat limitation imposes a severe and avoidable disparity on Delaware’s voters,” their lawsuit says, adding that “Plaintiffs suffer a concrete and particularized injury from the dilution of their representation in the House.”

They are asking that a three-judge panel in the U.S. District Court for the District of Columbia declare the House’s 435-seat limitation under the Permanent Apportionment Act of 1929 unconstitutional — and to create one more seat for Delaware, bringing the full House to 436 representatives.

The suit names Lutnick because the Commerce Department oversees the Census, whose population count every ten years is used to apportion House seats. Also named are Commerce Deputy Under Secretary George Cook, who is fulfilling the duties of the director of the U.S. Census Bureau, and House Clerk Kevin McCumber.

Redlawsk and Price’s attorney Andrew Tutt argues in the lawsuit that the U.S. population grows “while the statutory apportionment mechanism carries the same total of seats forward” in the House.

Tutt said that as a result of the 2020 census, that year’s apportionment divided seats among more than 331 million people, “more than three-and-a-half times the 92 million Americans counted in the 1910 census, before the current House size was set in 1911—leaving Delaware’s 990,837 people with a single Representative.”

Redlawsk and Price want the court to create an additional House seat for their state in time for the 2028 presidential election.

“Delaware would have two Representatives for its 990,837 people, an average of approximately 495,419 people per Representative,” the lawsuit says. “The House would have 436 Members. The remedy would give Delaware’s voters the additional representation their population requires and leave the allocations of the other 49 States intact.”

The lawsuit asks that if Congress fails to act on the request, then it calls for the court to order the House’s composition increase to 436 members.

The Commerce Department and the House clerk didn’t immediately respond to requests for comment.