Two weeks ago I wrote about House Bill 10, the second leg of a constitutional amendment to make technical corrections to the Delaware Constitution. 

In part HB 10 makes the language of the Delaware Constitution “gender silent.” 

I mentioned I was intrigued by something I came across while going through the 36,836-word bill.

Article II, Section 2 of the Delaware Constitution contains these instructions:

This State is also hereby divided into twenty-one Senatorial Districts, from each of which shall be chosen, by the qualified electors thereof, one Senator. 

In New Castle County there shall be seven Senatorial Districts, numbered from one to seven inclusive; in Kent County, seven Senatorial Districts, numbered from one to seven inclusive; and in Sussex County, seven Senatorial Districts from one to seven inclusive.

“Since the Constitution transcends the Delaware Code, shouldn’t we comply with that seven-per-county provision?” I asked.

Mark Cutrona, director, Division of Legislative Services, was brought in to answer my question. 

In part, here is his explanation:

The [Delaware] provision providing for each county to have seven Senators was ruled unconstitutional by the Supreme Court of the United States (SCOTUS) in 1964 in a case named Roman v. Sincock. 

SCOTUS held that Delaware’s system of having one upper house apportioned on a geographical basis and one lower house apportioned on a population basis was unconstitutional under the Equal Protection Clause, since population is the only permissible guide to apportionment.

Let’s think about that again: population is the only permissible guide to apportionment.

If population is the only permissible guide to apportionment, why are there two U.S. Senators in Delaware, the same as in California? 

According to the June 15, 1964 Roman v. Sincock decision: 

Reliance upon the so-called “federal analogy” to justify deviations from a population basis in apportionment of seats in the Delaware Legislature is misplaced. Reynolds v. Sims, supra, followed. Pp. 377 U. S. 708-709.

What I find disturbing about that part of the decision are the words “so-called.” That wording seems to me to reveal a bias.

Now let’s looks at some of the wording in Reynolds v. Sims:

• Insuring some voice to political subdivisions in at least one legislative body may, within reason, warrant some deviations from population-based representation in state legislatures. Pp. 377 U.S. 580-581.

I believe it’s time for “some deviations from population-based representation” in Delaware.

Others have spoken to me about the provision in the Delaware Constitution calling for seven senators per county. 

Is anyone ready to bring this issue back to the forefront and reintroduce this through the legal process?

Perhaps the current makeup of the SCOTUS is less likely to use the terminology “so-called” and instead reconize the occasional need for “some deviations from population-based representation in state legislators.”

After all, HB 10 left the language for seven senators per county to remain in the Constitution.