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Congress Watch · Report · File No. 261111-202

Two Delaware voters sue Lutnick to add a second House seat for the state

The long-shot suit says the House's 435-seat cap leaves Delaware's 990,837 people with one representative, less voice per person than any other state. It asks a federal court to add a 436th seat by 2028.

By the Capitol Desk · · 2 min read

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Two Delaware voters have sued Commerce Secretary Howard Lutnick to win their state a second seat in the U.S. House of Representatives. The plaintiffs are University of Delaware professor David Redlawsk and Delaware resident Kevin Price 1. NBC News reported the suit was filed Tuesday; other outlets give the date as Nov. 11 12.

They argue Delaware is underrepresented. The state has one at-large seat, meaning one representative for the whole state, for roughly 991,000 people 1. They say that is less representation per person than in any other state 1.

The Montana comparison

The suit points to Montana, which has just under 1.1 million residents and two House seats 1. Using 2020 Census numbers, Delaware had 990,837 people and Montana had 1,085,407 2. Another report says Delaware's population grew just over 7% from April 2020 to July 2025, compared with 5.6% for Montana 2.

The 435-seat limitation imposes a severe and avoidable disparity on Delaware’s voters
Andrew Tutt, attorney for the plaintiffs, in the lawsuit he filed1

The plaintiffs' lawyer, Andrew Tutt, argues that the population has grown while the House stayed the same size 1. He says the 2020 apportionment divided seats among more than 331 million people, compared with 92 million counted in 1910 1. A 1929 law, the Permanent Apportionment Act, created an automatic way to reassign the fixed 435 seats after each census 2.

From Channel GOPButtigieg links Trump pardons and Lutnick to corruptionPete Buttigieg · 2K plays · captioned, with the source named

What they want from the court

The plaintiffs ask a three-judge panel of the U.S. District Court for the District of Columbia to declare the 435-seat limit under the 1929 law unconstitutional 1. They want one more seat for Delaware, which would bring the House to 436 members 1. They say the other 49 states' allocations would stay the same 1.

They want the seat in place for the 2028 presidential election 1. Another report says they would accept a later election if the court finds that is more workable 2. If Congress does not act, the suit asks the court to order the House enlarged to 436 members 1.

Lutnick is named because the Commerce Department oversees the Census, whose count every ten years is used to divide House seats among the states 1. Also named are George Cook, who is performing the duties of Census Bureau director, and House Clerk Kevin McCumber 1. The Commerce Department and the House clerk did not immediately respond to requests for comment 1.

What happens next

No hearing date has been reported. Delaware's lone House member, Rep. Sarah McBride, recently won re-election 2. WBOC said it contacted her office for comment about the suit and would update its story if she responded 3.

Delaware is not the only state in this position. Five other states have one House seat each, and none has reached one million residents: Alaska, North Dakota, South Dakota, Vermont and Wyoming 3.

Analysis: Congress set the House at 435 seats more than a century ago, so a court order to change that would be a very large step 2. Even if the suit fails, it puts a plain question in front of voters. Should the size of the House keep pace with the country's growth? That question bears on how much say every voter has in Congress.

The Record

  1. A 1929 law, the Permanent Apportionment Act, set up an automatic process for dividing a fixed 435 House seats after each census 2.
  2. The 2020 census counted 990,837 people in Delaware, which has one House seat, and 1,085,407 in Montana, which has two 2.
  3. Two Delaware voters sued Commerce Secretary Howard Lutnick in federal court in Washington, D.C., seeking a second House seat for Delaware 1.
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Sources

  1. NBC News, “Delaware residents file lawsuit seeking a second House seat for the First State” (2026-11-11). nbcnews.com/politics/congress/delaware-residents-lawsuit-con
  2. WDEL, “Delaware voters sue for second U.S. House seat” (2026-11-11). wdel.com/news/delaware-voters-sue-for-second-u-s-house-seat/
  3. WBOC, “Delaware voters sue for second U.S. House seat, challenging 435-member limit” (2026-11-11). wboc.com/news/delaware-voters-sue-for-second-u-s-house-seat-

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