Delaware Voters Sue for Second House Seat

Two Delaware voters ask a federal court to add a 436th House seat to give the state a second representative.

Updated on Nov. 11, 2026 in Legislative Policy

Bold flat-color editorial illustration of a white-domed legislative building silhouette over a coastal marsh horizon, with one empty seat-shaped block in the foreground. — Two Delaware voters asked a federal court Tuesday to add a 436th U.S. House seat, challenging the 435-seat cap set in 1911 against Commerce Secretary Howard Lutnick. AI Illustration. Upload story photo >

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Should Congress add a House seat so Delaware gets a second representative?

Two Delaware voters have filed a lawsuit against Commerce Secretary Howard Lutnick in the U.S. District Court for the District of Columbia. The plaintiffs ask a three-judge panel to declare the 435-seat House limit unconstitutional and to create one additional seat for Delaware.

Why it matters

Delaware has one at-large House seat for roughly 991,000 people, while Montana has two seats for just under 1.1 million residents. The plaintiffs argue Delaware residents are underrepresented, and they want the added seat in place for the 2028 presidential election.

The lawsuit cites Delaware's population of 990,837 against the proposed 495,419 average per representative under the remedy sought, compared with the 435-seat House set under the Permanent Apportionment Act of 1929. Whether the court will grant the requested remedy remains unresolved.

The players

Howard Lutnick

Howard Lutnick is the U.S. Secretary of Commerce, a department that oversees the Census and is named as a defendant in the lawsuit.

U.S. Department of Commerce

The Commerce Department oversees the decennial Census that informs how House seats are apportioned among the states.

The details

The complaint, filed Tuesday, names Commerce Secretary Howard Lutnick, Commerce Deputy Under Secretary George Cook and House Clerk Kevin McCumber as defendants. It challenges the 435-seat limitation, a size set in 1911 when the 1910 census counted 92 million Americans.

1911: The current House size was set.
1929: The Permanent Apportionment Act established the 435-seat limit.
2020: The census apportionment divided seats among more than 331 million people.
Tuesday, November 10, 2026: Two Delaware voters filed the lawsuit.

Legislative Policy Context

The 435-seat cap was fixed by the Permanent Apportionment Act of 1929, and the lawsuit asks a federal court to set that limit aside for Delaware's sake. The challenge tests whether a statutory ceiling can leave a small state with a single at-large representative.

If the court grants the remedy, Delaware would gain a second House seat, changing how its residents are represented in Congress. The lawsuit remains pending, and no change to representation can occur without a court ruling or congressional action.

The takeaway

The lawsuit tests whether a 1929 statutory cap on House size can be challenged on fairness grounds for small states like Delaware. Its outcome could shape how future apportionment disputes are argued.