### Whitepaper: The Delaware Senate Districting Dilemma – Federal Overreach vs. State Sovereignty Prepared by: Thom Loring, February 27, 2025 ## Executive Summary The Delaware Constitution, Article II, Section 2, mandates a 21-member Senate with 7 districts per county—New Castle, Kent, and Sussex—reflecting a deliberate state choice for county-based representation. Since 1968, however, this structure has been supplanted by an uneven split (e.g., 14 districts in New Castle County), driven by the U.S. Supreme Court’s 1964 _Reynolds v. Sims_ ruling. This whitepaper argues that this federal mandate represents an unconstitutional overreach, usurping Delaware’s sovereign right to structure its legislature. The shift from the 7-7-7 split, enacted without constitutional amendment, underscores a loss of state autonomy, warranting a challenge to restore Delaware’s districting authority. ## Introduction Delaware’s Constitution, under Article II, Section 2, prescribes 7 Senatorial Districts per county—New Castle, Kent, and Sussex—totaling 21, a framework rooted in state sovereignty over internal governance. Yet, modern practice assigns New Castle County approximately 14 districts, Kent 4, and Sussex 3, a deviation traced to federal judicial intervention in the 1960s. This paper examines when this shift occurred and argues that it reflects an unconstitutional federal encroachment on states’ rights, urging Delaware to reclaim its constitutional prerogative. ## Historical Context The 1897 Delaware Constitution established a 17-member Senate (5 districts in New Castle, 5 in Kent, 7 in Sussex), prioritizing geographic equity over population. In 1963, Senate Bill 139 (ratified 1964, 54 Del. Laws, c. 1) amended Article II, Section 2, setting the Senate at 21 with a 7-7-7 county split: “In New Castle County there shall be seven Senatorial Districts… in Kent County, seven… and in Sussex County, seven.” This reflected Delaware’s sovereign choice to balance representation by county, not population. The U.S. Supreme Court’s 1964 _Reynolds v. Sims_ decision (377 U.S. 533) disrupted this, imposing a “one person, one vote” standard under the Fourteenth Amendment’s Equal Protection Clause. By 1960, New Castle County’s 307,446 residents (69% of 446,292) dwarfed Kent’s 65,651 and Sussex’s 73,195, but Delaware’s 7-7-7 intent aimed to preserve county identity—a legitimate state interest. ## The Shift from 7-7-7 The break from the 7-7-7 split began in 1964, when the Reapportionment Act (54 Del. Laws, c. 360) responded to _Reynolds v. Sims_ and federal litigation (_Sincock v. Duffy_, 215 F. Supp. 169, affirmed 377 U.S. 568, 1964), which struck down Delaware’s prior districting. By 1968, the General Assembly’s plan (56 Del. Laws, c. 243) allocated roughly 13–14 districts to New Castle County, 4 to Kent, and 3–4 to Sussex, abandoning the constitutional text for population-based equity. This pattern solidified by 1971 (58 Del. Laws, c. 280) and persists today (e.g., Senate Bill 199, 2021), with New Castle at 14 districts. This shift lacked a state constitutional amendment, relying instead on statutory overrides in Title 29, Chapter 8, under pressure from federal courts. The 7-7-7 framework, enacted in 1964, was discarded within four years, not by Delaware’s choice but by judicial fiat. ## Current Constitutional Text As of February 27, 2025, Article II, Section 2 retains the 7-7-7 mandate: - The Senate has 21 members, elected from 21 districts. - Each county receives “seven Senatorial Districts, numbered from one to seven inclusive.” - A redistricting clause requires population equality post-census, a federal imposition grafted onto Delaware’s text. The constitution reflects state intent, yet practice bows to federal overreach, sidelining county-based governance. ## Federal Overreach: A States’ Rights Critique The Tenth Amendment reserves to states all powers not delegated to the federal government, including the structure of state legislatures. Article IV, Section 4 guarantees each state a republican form of government, a choice Delaware exercised with its 7-7-7 split. _Reynolds v. Sims_ extended the Equal Protection Clause to override this, mandating population-based districts and nullifying Delaware’s sovereign design. This judicial overreach lacks textual grounding in the U.S. Constitution. The Fourteenth Amendment addresses individual rights, not state legislative autonomy, and historical practice—e.g., the U.S. Senate’s state-equal representation—supports geographic rather than population-driven models. Delaware’s 1968 shift was coerced, not consensual, eroding its right to self-governance. ## Practical Reality Today, New Castle County’s 570,000+ residents (2020 Census) justify its 14 districts under federal rules, while Kent (185,000) and Sussex (250,000) receive 4 and 3. The 7-7-7 split would balance county voices, a state prerogative sacrificed to appease federal courts. Title 29 codifies this capitulation, not Delaware’s will. ## Amendment Analysis No amendment has altered the 7-7-7 text since 1964. The process (Article XVI, Section 1) requires two-thirds approval in two consecutive General Assemblies, yet later changes (e.g., 2023, 84 Del. Laws, c. 16) ignore districting. The shift was statutory, bowing to federal pressure, not state amendment. ## Implications and Recommendations This federal usurpation poses risks: 1. **Sovereignty Loss**: Delaware’s districting autonomy is subjugated to judicial whims. 2. **Constitutional Integrity**: The 7-7-7 text is a hollow shell, undermining state authority. 3. **Precedent**: Unchecked federal power threatens other state rights. **Recommendation**: Delaware should challenge _Reynolds v. Sims_ as unconstitutional, seeking U.S. Supreme Court review to restore its right to the 7-7-7 split. Alternatively, the General Assembly could defy federal precedent, reimpose the constitutional framework via statute, and force a legal test. State sovereignty demands action. ## Conclusion Delaware’s 7-7-7 Senate district split was uprooted between 1964 and 1968 by federal judicial overreach, not state choice. _Reynolds v. Sims_ unconstitutionally stripped Delaware of its Tenth Amendment right to structure its legislature, replacing county equity with population mandates. Without amendment, the state has acquiesced since 1968. Delaware must confront this usurpation, either through litigation or legislative defiance, to reclaim its sovereign authority and honor its constitution. ## References - Delaware Constitution, Article II, Section 2 [https://delcode.delaware.gov/constitution/constitution-03.html](https://delcode.delaware.gov/constitution/constitution-03.html) - U.S. Constitution, Tenth Amendment; Article IV, Section 4 - _Reynolds v. Sims_, 377 U.S. 533 (1964) - _Sincock v. Duffy_, 215 F. Supp. 169 (D. Del. 1963) - Senate Bill 139, 54 Del. Laws, c. 1 (1964) - Reapportionment Act, 54 Del. Laws, c. 360 (1964) - 56 Del. Laws, c. 243 (1968)