Federal Elections Modernization Act¶

Constitutional Boundaries of Proportional Representation: When Federal PR Implementation Requires Constitutional Amendment¶

Published February 2026¶

Based on Rev 5.0 of the Federal Elections Modernization Act

Introduction¶

Electoral reform advocates frequently assert that proportional representation at the federal level would require a constitutional amendment. This claim is both correct and incorrect -- the answer depends entirely on which form of proportional representation is under consideration.

Some PR implementations would indeed require constitutional amendment because they conflict with structural provisions of Articles I and II that the Elections Clause cannot override. Other implementations -- including the Federal Elections Modernization Act's (FEMA) approach -- operate comfortably within existing constitutional authority. This document refers to FEMA hereafter as "the Act."

This document identifies the constitutional boundaries separating statutory PR (achievable through ordinary legislation) from constitutional PR (requiring amendment). Understanding these boundaries clarifies why the Act's specific design choices are not merely policy preferences but constitutional necessities.

The Core Distinction:

Congress's Elections Clause authority extends to regulating the "manner" of federal elections -- how votes are cast, counted, and translated into winners. This authority is broad but not unlimited. Congress cannot use "manner" regulation to:

Override Article I's apportionment structure (seats allocated to states by population)
Change who does the choosing (voters must choose individual representatives)
Eliminate the geographic basis of American representation
Add qualifications for office beyond those specified in the Constitution

PR systems that stay within "manner" regulation are statutorily achievable. PR systems that transgress these boundaries require constitutional amendment.

Scenario 1: National Constituency PR¶

Description¶

Treating the entire United States as a single electoral district for House elections, with all 435+ seats allocated proportionally based on nationwide vote totals.

Why Amendment Required¶

Article I, Section 2 mandates state-based representation:

"Representatives...shall be apportioned among the several States...according to their respective Numbers..."

The Constitution requires that House seats be allocated to states based on population. Each state's voters then choose their representatives. This two-step structure -- apportionment to states, then election within states -- is constitutionally fixed.

National constituency PR would collapse this structure by pooling all votes nationally and allocating seats without regard to state boundaries. A voter in Wyoming would be choosing the same pool of representatives as a voter in California. This fundamentally transforms who is being represented (the nation rather than state constituencies) and how representation is allocated (nationally rather than by state).

The Elections Clause cannot override Article I's apportionment framework. "Manner" regulation presupposes the existing representational structure; it cannot replace that structure with an entirely different one.

Example Systems¶

Israel's Knesset (entire country = one 120-seat district)
Netherlands' Tweede Kamer (150 seats allocated nationally)
Any system pooling votes across state lines for seat allocation

Constitutional Problem¶

This isn't a "manner" question -- it's a fundamental restructuring of the representational relationship between voters, states, and representatives. The Elections Clause grants authority to regulate how state electorates choose their representatives, not authority to merge state electorates into a national electorate.

Scenario 2: Party List Systems¶

Description¶

Voters choose parties rather than individual candidates; parties fill allocated seats from pre-determined candidate lists. Closed lists give voters no influence over which specific candidates fill party seats; open lists allow some candidate preference within the party vote.

Why Amendment Likely Required¶

Article I, Section 2 specifies direct voter choice:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States..."

The constitutional language -- "chosen...by the People" -- strongly implies that voters directly select their individual representatives. Party list systems interpose party organizations between voters and representatives in ways the Constitution does not contemplate.

Under party list systems:

Voters choose parties, not individual representatives
Party leadership determines which specific individuals fill allocated seats through list ordering
Representatives owe their positions partly to party list placement, not solely to direct voter choice

The fundamental question: When a voter marks "Democratic Party" and that party's internal list determines that John Smith (ranked #4 on the list) gets a seat, was Smith truly "chosen by the People"? Or was he chosen by party list-makers, with voters only selecting the party generally?

No historical precedent exists at the federal level. American federal elections have always been candidate-centered. From 1789 to present, voters have chosen among individual named candidates, never among party organizations. While absence of precedent isn't dispositive, 235+ years of consistent candidate-centered practice establishes what "manner of holding elections" has historically meant.

Example Systems¶

Closed party lists (Israel, Spain, Netherlands pre-reform)
Open party lists (Finland, Sweden, Brazil)
Mixed-Member Proportional with list component (Germany, New Zealand) -- see Scenario 3

Constitutional Problem¶

Party lists don't merely change how votes are counted; they change the nature of political representation itself:

Current system and the Act: Individual candidates appear on ballot; voters evaluate those specific individuals; elected representatives are directly accountable to voters who chose them; representatives can break with party without losing their seats.

Party list systems: Party organizations appear on ballot; voters evaluate parties and platforms; representatives are accountable to party leadership (who control list position) as much as to voters; representatives who break with party risk losing future list placement.

This transformation of the representative-constituent relationship arguably exceeds Elections Clause authority. The Constitution establishes representatives chosen by the people -- not representatives chosen by party organizations that voters selected.

Scenario 3: Mixed-Member Proportional with Compensatory Seats¶

Description¶

Voters cast two votes -- one for a local district representative (typically single-member), one for a party. "Compensatory" or "leveling" seats are added beyond district winners to ensure overall seat allocation matches party vote shares.

Why Amendment Likely Required¶

MMP systems combine multiple constitutional problems:

First, the party list problem. Compensatory seats are filled from party lists, triggering the same "chosen by the People" concerns as pure party list systems. Even if district seats are candidate-centered, the compensatory component introduces party-mediated representation.

Second, two classes of representatives. MMP creates representatives with different democratic mandates -- some chosen directly by district voters, others chosen through party lists. The Constitution contemplates a single type of Representative, all "chosen...by the People" in equivalent fashion.

Third, variable House size. True MMP proportionality requires flexible seat numbers. If a party wins fewer district seats than its vote share warrants, compensatory seats must be added. This conflicts with any statutory House cap and creates uncertainty about chamber composition.

Fourth, the compensation scope problem:

Cross-state compensation would violate Article I apportionment requirements. If Party A underperforms in California districts but overperforms in Texas, cross-state compensatory seats would effectively transfer representation between states.
Within-state compensation avoids the cross-state problem but still has the party list problem for compensatory seats. Additionally, small states cannot have meaningful compensation -- Wyoming with 1 district seat cannot receive fractional compensatory seats to correct for disproportionality.

Example Systems¶

Germany's Bundestag
New Zealand's Parliament
Scotland and Wales devolved assemblies

Constitutional Problems¶

MMP's elegant proportionality mechanism depends on components (party lists, flexible seat counts, compensation mechanisms) that either clearly require amendment or face substantial constitutional vulnerability. The system cannot be "fixed" by removing problematic components -- those components are what make MMP work.

Scenario 4: Mandatory Minimum Seats Per State¶

Description¶

Guaranteeing every state three or more representatives to enable meaningful proportional representation, regardless of population.

Why Amendment Required¶

Article I, Section 2 guarantees only one representative minimum:

"...each State shall have at Least one Representative..."

Beyond this one-seat floor, the Constitution mandates population-based apportionment:

"Representatives...shall be apportioned among the several States...according to their respective Numbers..."

Congress cannot statutorily override constitutional apportionment. Giving Wyoming three seats when population warrants one would violate the equal representation principle underlying "one person, one vote." Each Wyoming voter would have three times the House representation of voters in larger states.

The Small State Problem¶

Meaningful proportional representation requires three or more seats per district -- with fewer seats, the mathematical resolution is too coarse for proportionality. Currently, seven states have only one representative (Wyoming, Vermont, Alaska, North Dakota, South Dakota, Delaware, and one other depending on census). Several more have only two.

These states cannot implement proportional representation without either:

Violating population-based apportionment (unconstitutional without amendment), or
Massive House expansion sufficient that population growth gives small states 3+ seats naturally

Even aggressive House expansion cannot guarantee every state three seats while maintaining proportionality. A state with 0.15% of national population would need a 2,000+ member House to warrant three seats proportionally.

Constitutional Problem¶

The Constitution deliberately gives small states minimum representation (one seat) while maintaining population-based apportionment for additional seats. This balance cannot be altered by statute. Any guarantee of three-seat minimums would require amending Article I, Section 2.

Scenario 5: Abolishing Geographic Districts Entirely¶

Description¶

Eliminating all geographic representation in favor of purely ideological, partisan, or demographic representation.

Why Amendment Required¶

Constitutional structure assumes geographic constituencies.

Article I's language -- "by the People of the several States" -- establishes that representatives represent geographic communities. States are geographic entities. The apportionment mechanism (census-based, state-by-state) is inherently geographic.

178 years of consistent practice (1789-1967 and continuing) maintained geographic districts, whether single-member or multi-member. Congress adjusted district structure but never eliminated the geographic basis of representation.

"Manner" cannot eliminate geography. The Elections Clause authorizes regulation of how elections are conducted within the existing representational framework. That framework is geographic -- representatives from geographic states representing geographic constituencies. Congress can modify district boundaries, combine districts into multi-member configurations, or change how votes within geographic areas translate to winners. Congress cannot replace geographic representation with non-geographic alternatives.

Example Systems¶

Pure nationwide party list with no geographic component
Occupational or functional representation (labor seats, business seats, professional seats)
Demographic representation (seats allocated by race, gender, age cohort)

Constitutional Problem¶

American representation is fundamentally geographic. The House represents places and the people who live in them. This geographic foundation is embedded in Article I's structure (state-based apportionment), the Census mechanism (counting people where they reside), and 235+ years of unbroken practice. Eliminating geography would require reconstituting the representational foundation of the House itself.

Scenario 6: Cross-State Multi-Member Districts¶

Description¶

Creating multi-member districts that span state boundaries -- for example, combining portions of Oregon and Washington into a single Pacific Northwest district electing five representatives.

Why Amendment Required¶

Representatives are apportioned to states, not regions.

Article I, Section 2: "Representatives...shall be apportioned among the several States..."

The Constitution allocates House seats to states based on their respective populations. Each state's seats belong to that state. Cross-state districts would divorce representatives from state apportionment entirely.

Voters choose their state's representatives.

The constitutional phrase "by the People of the several States" establishes that each state's electorate is distinct. Oregon voters choose Oregon's representatives; Washington voters choose Washington's representatives. Cross-state districts would merge these constitutionally separate electorates.

No mechanism exists for cross-state allocation.

The census determines each state's seat count. Representatives are then chosen by that state's voters to fill that state's seats. Cross-state districts would require representatives somehow belonging to multiple states or to no state -- neither concept has constitutional foundation.

Constitutional Problem¶

The Elections Clause regulates the manner of elections, but the unit of representation (the state) is constitutionally fixed. Congress cannot merge state electorates for representational purposes any more than Congress could merge state governments for administrative purposes. States are the constitutional building blocks of House representation.

Scenario 7: Proportional Representation for the Senate¶

Description¶

Converting Senate elections to proportional representation, whether within states (electing both senators proportionally) or across states (national Senate PR).

Why Amendment Required¶

The Seventeenth Amendment fixes Senate structure:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof..."

Each state has exactly two senators, elected by that state's voters. This is not a "manner" question subject to Elections Clause regulation -- it is the fundamental structure of the Senate itself.

Article V explicitly protects equal state suffrage:

"...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

This entrenchment clause makes Senate reform uniquely difficult. Not only would proportional Senate representation require constitutional amendment, but any amendment affecting equal state suffrage would require unanimous state consent -- the only provision in the Constitution so protected.

Proportional representation requires multiple seats.

PR cannot function with only two seats per constituency. A two-seat "proportional" election produces only three possible outcomes: 2-0, 1-1, or 0-2. This is not proportionality in any meaningful sense.

Constitutional Problem¶

Senate proportional representation faces essentially insurmountable constitutional barriers. The two-senator-per-state structure is fixed by the Seventeenth Amendment. Equal state suffrage is protected by Article V's entrenchment clause. Even with overwhelming national support, Senate PR would require either unanimous state consent or a constitutional convention -- neither remotely achievable.

Scenario 8: Artificial Threshold Requirements¶

Description¶

PR systems with mandated minimum vote thresholds (e.g., 5% nationally or statewide) that prevent candidates or parties below the threshold from winning seats, regardless of their vote totals.

Why Constitutionally Vulnerable¶

U.S. Term Limits v. Thornton prohibits adding qualifications.

The Supreme Court held that neither states nor Congress can add qualifications for federal office beyond those specified in Article I (age, citizenship, residency). Any requirement that prevents otherwise-qualified candidates from serving based on additional criteria raises serious constitutional concerns.

High thresholds function as de facto qualifications.

An artificial 5% threshold effectively says: "You must demonstrate 5% support to serve in the House." This is an additional qualification -- a popularity requirement -- beyond Article I's specifications.

Distinguishing natural from artificial thresholds:

Natural mathematical thresholds arise inevitably from district magnitude. A five-seat district naturally requires roughly 16-20% support to win one seat. This isn't an imposed requirement; it's mathematics.
Artificial regulatory thresholds are policy choices imposed atop the mathematical reality. Requiring 5% when the natural threshold is 3% is an added barrier.

Ballot access framework applies.

Under Anderson v. Celebrezze, courts balance state interests against burdens on candidates and voters when evaluating ballot access restrictions. Artificial thresholds that exclude candidates who could mathematically win seats face scrutiny under this framework.

Example Systems¶

Germany's Bundestag (5% threshold)
Turkey's Grand National Assembly (10% threshold)
Israel's Knesset (3.25% threshold)

Constitutional Problem¶

Artificial thresholds may not require constitutional amendment per se, but they face substantial judicial vulnerability. Courts could strike them as impermissible qualifications additions or as unjustified ballot access restrictions. The safer constitutional approach is relying solely on natural mathematical thresholds inherent to district magnitude.

How FEMA Navigates Constitutional Constraints¶

The Act's proportional representation provisions are specifically designed to operate within constitutional boundaries. Each design choice reflects constitutional necessity, not merely policy preference.

Design Choices and Constitutional Rationale¶

Constitutional Constraint	FEMA Design Choice	Rationale
National constituency prohibited	State-by-state districts only	Preserves Article I apportionment structure
Party lists constitutionally suspect	Candidate-centered STAR-PR	Maintains "chosen by the People"
MMP components problematic	No compensatory mechanism	Avoids party lists and variable House size
Cannot mandate 3+ seat minimums	Single-winner STAR for small states	Accepts constitutional constraints
Cannot abolish geography	Enumerated geographic districts	Maintains geographic representation
Cannot cross state boundaries	Districts wholly within states	Respects state-based apportionment
Senate structure fixed	No Senate PR attempted	Recognizes insurmountable barriers
Artificial thresholds vulnerable	No imposed thresholds	Relies on natural mathematics only

The Candidate-Centered Distinction¶

The Act's most important constitutional design choice is using candidate-centered proportional representation rather than party-list systems.

Under STAR-PR:

Voters see individual named candidates on the ballot and rate each one 0-5 stars based on personal assessment
The ballot does not ask voters to choose parties -- it asks them to evaluate specific people seeking to represent them
Representatives win seats because voters rated them highly -- not because party leadership placed them strategically on a list
If a representative performs poorly, voters can rate them lower next election
If a representative breaks with their party, they can still run and win based on personal voter support

This preserves the direct voter-representative accountability relationship the Constitution contemplates. The mathematical formula for translating scores into seat allocation changes, but the fundamental structure -- voters choosing individual representatives -- remains intact.

State-by-State Implementation¶

The Act implements proportional representation within each state's allocated seats, not across state lines:

Census determines each state's seat count (per existing constitutional process)
Each state divides its seats into multi-member districts (3-7 seats each where possible)
Voters within each state choose their state's representatives (using STAR-PR)
Proportionality operates within state boundaries (no cross-state effects)

This respects Article I's apportionment structure while achieving proportional outcomes within that structure.

Small State Accommodation¶

The Act acknowledges that proportional representation cannot function constitutionally in states with fewer than three representatives:

States with fewer than three representatives use single-winner STAR voting (Title IV, Section 402(e); Section 404(h))
No attempt to artificially inflate small state delegations beyond constitutional entitlement
House expansion (to approximately 700 to 720 members within approximately 14 years) may naturally give more states 3+ seats as population grows
Proportionality achieved where constitutionally possible without forcing it where impossible

This is constitutional realism, not a design flaw. The Constitution guarantees small states minimum representation but not proportional representation. The Act works within this constraint.

Historical Precedent¶

The Act's approach has 178 years of American precedent:

Multi-member congressional districts were used from 1789 to 1967
Candidate-centered voting in multi-member districts (general ticket, limited voting, cumulative voting) was standard practice
The 1967 single-member mandate was statutory, enacted by ordinary legislation
Repealing that mandate and restoring multi-member districts exercises the same Elections Clause authority

The Act doesn't import foreign electoral models -- it restores American historical practice while adding modern proportional allocation methods that address the vote dilution concerns motivating the 1967 ban.

Conclusion¶

The question "Does proportional representation require a constitutional amendment?" has no single answer. It depends entirely on which form of proportional representation is under consideration.

PR implementations requiring constitutional amendment:

National constituency systems
Party list systems (closed or open)
Mixed-Member Proportional with list components
Mandatory minimum state representation beyond Article I floors
Elimination of geographic districts
Cross-state district configurations
Senate proportional representation

PR implementations achievable by statute:

State-by-state multi-member districts
Candidate-centered proportional methods (STAR-PR, STV)
Natural mathematical thresholds only
Geographic districts within state boundaries
House elections only (not Senate)

The Act falls squarely in the statutory category. Its design reflects careful attention to constitutional boundaries -- not because proportional representation generally is constitutionally problematic, but because some forms of proportional representation are constitutionally problematic and the Act deliberately avoids them.

Understanding these boundaries is essential for electoral reform advocacy. Claims that "PR requires an amendment" are correct for some PR variants and incorrect for others. The Act demonstrates that meaningful proportional representation -- achieving proportional outcomes through improved vote-counting for individual candidate elections -- rests on solid constitutional foundations within existing Elections Clause authority.

The Constitution grants Congress broad power to regulate the manner of federal elections. The Act exercises that power to ensure votes translate proportionally into representation. This is constitutional fulfillment, not constitutional transformation.

Appendix: Constitutional Provisions Referenced¶

Article I, Section 2, Clause 1:

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States..."

Article I, Section 2, Clause 3:

"Representatives...shall be apportioned among the several States which may be included within this Union, according to their respective Numbers..." "...each State shall have at Least one Representative..."

Article I, Section 4, Clause 1 (Elections Clause):

"The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations..."

Article V (Entrenchment Clause):

"...no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Seventeenth Amendment:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof..."

Revision History¶

Revision 2.0 (Current) - Rebranded from Congressional Modernization Act (CMA) to Federal Elections Modernization Act (FEMA) throughout - Applied DPS Section 1.7 self-reference conventions (establish name once, use "the Act" thereafter) - Updated header structure to DPS Section 1.2 supporting document format - Moved Revision History to document footer per DPS Section 1.3 - Corrected section cross-references to align with Rev 5.0 legislative text: small state accommodation now references Title IV, Section 402(e) and Section 404(h) (previously cited Section 401(h)) - Updated House expansion figures: approximately 700 to 720 members within approximately 14 years (previously stated ~695 members over 25 years) - Converted scenario headings from ALL CAPS to Title Case per DPS Section 1.2 heading hierarchy - Verified clean ASCII encoding throughout - Companion document to FEMA Rev 5.0 Constitutional Authority Technical Memorandum

Revision 1.0 - Initial version analyzing constitutional boundaries for federal proportional representation - Identified eight PR implementation scenarios requiring constitutional amendment - Explained how CMA's design navigates each constitutional constraint - Companion document to CMA Constitutional Authority Technical Memorandum

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Prepared by Albert Ramos for The American Policy Architecture Institute