Why Two Delaware Voters Are Suing for a 436th House Seat, and What the Courts Have Said Before

Delaware has had a single seat in the U.S. House since 1823, when it lost its second after the 1820 census. Two of its voters now want a federal court to change that.

The suit, filed this week in federal court in Washington, D.C., seeks a second House seat for the First State. The plaintiffs argue that Delawareans have "far less representation per person" than voters in any other state, the Washington Examiner reported.

NBC News identified the plaintiffs as David Redlawsk, a University of Delaware professor, and Kevin Price, a Delaware resident, represented by attorney Andrew Tutt. The defendants are Commerce Secretary Howard Lutnick, whose department oversees the census; George Cook, a Commerce deputy under secretary performing the duties of Census Bureau director; and House Clerk Kevin McCumber.

The complaint asks a three-judge panel of the U.S. District Court for the District of Columbia to declare the 435-seat cap in the Permanent Apportionment Act of 1929 unconstitutional, NBC News reported. According to WDEL, the voters want the court first to set a deadline for Congress to fix Delaware's representation. If lawmakers miss it, the court would enlarge the House to 436 and give the new seat to Delaware, leaving other states' delegations unchanged. They have asked for expedited review so a second seat could be in place for the 2028 election, or a later one the court finds workable. The complaint, as quoted by NBC News, says the "435-seat limitation imposes a severe and avoidable disparity on Delaware's voters".

The Commerce Department and the House clerk did not immediately respond to NBC News' requests for comment.

The 2020 census counted 990,837 Delawareans, all represented by one at-large member, Democratic Rep. Sarah McBride, WDEL reported. Montana, with about 95,000 more people, has two seats. The Census Bureau put Montana's average district at 542,704 people, the smallest of any state, against a national average of 761,169. By those figures, Delaware's lone district holds roughly 230,000 more people than the typical House district and nearly twice as many as either of Montana's. The plaintiffs say that leaves a Delaware voter with only a little more than half the per-person representation of a Montanan.

The gap persists. WDEL reported that July 2025 estimates put Delaware at 1,059,952 residents and Montana at 1,144,694. The five other states with one seat, Alaska, North Dakota, South Dakota, Vermont and Wyoming, all remain under one million people.

Tutt's larger point is about growth: the 2020 census spread the same seats across more than 331 million people, over three and a half times the 92 million counted in 1910.

The plaintiffs rest on the principle of one person, one vote. In Wesberry v. Sanders (1964), the Supreme Court held that one voter's ballot in a congressional election should be worth as much as another's as nearly as practicable, a rule enforced when states draw districts. Whether it crosses state lines is another matter.

In 1992, Montana challenged the formula Congress uses to divide seats, the method of equal proportions written into law in 1941, after the 1990 census cost the state one of its two seats. Montana's 803,655 residents were placed in a single district about 40 percent larger than the national average of 572,466. A three-judge court sided with Montana, but a unanimous Supreme Court reversed on March 31, 1992, in an opinion by Justice Stevens. The justices reasoned that the Constitution's own requirements, at least one representative per state and a fixed number of whole seats, make perfect equality "illusory for the Nation as a whole". They added that Congress deserves broader discretion in apportionment than states receive when drawing district lines.

The Delaware case pulls a different lever. Montana attacked the formula; Delaware attacks the size of the House itself. That distinction is the plaintiffs' best opening. Still, courts have turned away such efforts before. The Washington Sun reported that earlier challenges failed in 1992 and in 2010, when the Supreme Court dismissed a separate bid that included Delaware voters. Early coverage of the new suit included no assessments from outside legal scholars.

The constitutional text frames the debate. The number 435 appears nowhere in the Constitution. Congress reached it through 1911 legislation and capped the House at that size in 1929, after rural lawmakers blocked reapportionment for a decade following the 1920 census. Congress could add a seat with an ordinary bill. Those who honor the Constitution's design would expect the question settled by the people's elected representatives, not by a court order resizing a coequal branch. To their credit, the plaintiffs ask that Congress get the first chance.

The stakes are political as well. A second seat could give Delaware a fourth electoral vote, and the state has voted Democratic in nine straight presidential elections, the Washington Sun noted.

What happens next turns on whether the court convenes the requested three-judge panel and agrees to a fast schedule. A win would require Delaware to draw two congressional districts.