By: Ashley Ravid
Edited by: Dheven Unni and Maddy Bennett
It is to the detriment of our democratic future as a nation that many citizens and politicians alike consider it blasphemous to discuss altering our governmental systems from the original format laid out in the Constitution. Though the United States’ system of checks and balances remains vital to our republican system of government, the role of the Senate in unequally representing our citizens in myriad ways is antithetical to the spirit of the Constitution and to voting rights in the United States. Reapportioning the Senate is not only the Constitutional path forward, but also represents the nation’s best chance to adapt for modern times and conceptions of law, order, rights, and justice.
1.Unequal Representation in the Senate
A.Statistical Republican Skew
One highly salient issue facing the American public’s relationship with the legislative branch is a pattern of Democrats claiming fewer House and Senate seats in elections than the proportion of votes they received would suggest. Redistricting post-2010 has only increased the severity of this statistical disconnect. This skew is so impactful on election results that researchers and political analysts estimate how many percentage points Democrats will need to beat Republicans to take control of either the House or Senate. In 2018, researchers predicted Democrats would need to win by 4 to 7 points to take a majority of seats in the House.[1] Though this “seats bonus” has favored Republicans in the last four elections, the Brookings Institution (a public policy nonprofit organization) notes that whichever party wins the congressional majority benefits from this boost, netting an average “seats bonus” of 5.6 percentage points.[2] Slate explains the pervasiveness of this partisan skew and how impactful it has become on the legislative system as a whole: “Republicans held over 55 percent of the seats in the House after 2016’s elections despite winning only 49.9 percent of the popular vote. This mismatch is nothing new. It’s a function of not only partisan redistricting processes, but also the fact that Democratic and Republican voters wouldn’t be evenly distributed even absent gerrymandering.”[1] This widening disproportionality between votes cast for a party and the proportion of representatives from that party who actually take office poses judicial, legal, ethical, and Constitutional questions about why nothing has changed to combat voting skew despite widespread acknowledgement of its existence.
2. Wesberry v. Sanders
Constitutionally, every citizen’s vote should carry equal weight, a precedent initially set by the Supreme Court’s decision in Wesberry v. Sanders, 376 U.S. 1 (1964). In that case, the Court ruled not only that congressional districting and voting systems fall under legislative branch justiciability, but also established that the Fourteenth Amendment of the Constitution guarantees citizens the right to have their vote matter just as much as another. The Court held that “construed in its historical context, the command of Art. I, § 2 that Representatives be chosen ‘by the People of the several States’ means that, as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's.”[3] Though in this instance the votes being discussed are those for the House, the same principle should logically apply to votes cast in elections for the Senate; both Article I and the Fourteenth Amendment support this conclusion. The purpose of the government is to serve and represent its people and their best interests. If any branch of the government fails to uphold these basic duties, action should be taken to rectify this divergence. In this case, reasonably equitable districting must be guaranteed so that the proportion of Senate seats won by each party in elections remains proportional to the share of votes received. Furthermore, the United States has expanded from 13 to 50 states in the centuries since the Constitution was written, causing a 284.6% increase in Senators. This dramatic increase has widened inequality by granting states with smaller populations increasingly disproportionate power within the legislative branch.
3.Unequal Weight of Citizens’ Votes
A memo released by Data for Progress, a progressive policy think tank, compiles data and declaims the Senate as an “irredeemable institution.”[4] Though the use of such harsh language may seem excessive in a traditionally patriotic sense, the data presented does suggest deep-rooted issues inherent to the current structure of the Senate. Smaller states are more reliant on federal funding than larger ones and tend to have smaller immigrant populations and larger white populations. A statistical analysis of the voting population based on data from the U.S. Census Bureau shows that the weight of a vote by a citizen in a larger state is drastically reduced compared to the vote of a citizen in a small state. Essentially, “This means that instead of one person in California counting as one person in the national total, one person in California would count as only one-fifth of a person. Each person in North Dakota counts as eight people, each person in New York as one-third of a person.”[5] Particularly concerning is that this skew of uneven vote weighting through Senate representation drastically favors white populations, particularly non-college educated whites.
Though people of color and white populations do not necessarily have different voting preferences or political opinions, analysis shows that non-college-educated whites vote more frequently for conservative candidates and platforms—such as opposing gun control—than people of color do. In summary, “The Senate amplifies representation for whites at the expense of representation for people of color. The Senate overweights the votes of non college-educated whites to such a substantial degree that they become an effective majority of the voting-eligible population. In consequence, the Senate will discount the political preferences of people of color, and amplify the political preferences of whites.”[5] As the country’s population has diversified, the growth of nonwhite populations has not been distributed across the country evenly, as immigrant and nonwhite populations tend to reside in larger, more liberal-leaning states. The lowered statistical voting impact of mainly nonwhite voters will only be exacerbated by this inequality. Gabriel Yglesias describes the growth of this inequity over the centuries: in 1790, “the largest state...was about 12.6 times as big as the smallest state, and the ratio was even lower among free people. Today, the smallest state is Wyoming, and the state of Washington has about 12.6 times as many people...Illinois has 22 times Wyoming’s population. Texas is nearly 50 times as big (and growing fast). And California is a stunning 68 times as large.”[6] The Constitution is clear: each state will be represented by two Senators in order to guarantee fair representation of all states in Congress. The House is intended to compensate for this variation of populations by allotting representation to states based upon their citizenship. However, in a bicameral system where having support from both houses of Congress is almost always essential to passing key legislation, such an extreme deviation from equal representation has concerning implications for a country founded on the principle of “no taxation without representation.”
4.Gaffney v. Cummings Threshold
Gerrymandering remains a controversial and not-wholly-adjudicated issue for both state and federal governments, particularly in relation to the Fourteenth Amendment. Part of the reason is that it is difficult to draw perfectly equal districts within a state or county to ensure equal representation. Still, various courts across the country have enacted rulings to stipulate how much deviation is permissible in redistricting. Justice Brennan of the Supreme Court, in his dissent of the Court’s opinion in Gaffney v. Cummings, 412 U.S. 735 (1973) wrote that according to Court precedent, “deviations in excess of [10%] are apparently acceptable only on a showing of justification by the State.”[7] In the intervening years, Court interpretations of districting thresholds have typically followed this unofficial rule. A deviation of 68 times—the amount that California’s population is greater than Wyoming’s, despite their equal representation in the Senate—appears repugnant to the spirit of such a threshold. While it is important to note that this decision is intended to apply to states, the Court has established precedent to make similar decisions on the legislative branch, particularly the House (see Wesberry). Many cases cited in this article are intended to apply to states or the House, specifically exempting the Senate because it was written into the Constitution to fairly represent states rather than people. Yet what is a state made of if not its people? What is the United States made of if not its people, regardless of what specific state they reside in? It seems inadvisable and impractical to write off enacting similar thresholds for equal representation in the Senate simply because of tradition, even if that tradition originates with the Constitution.
5.One Person, One Vote
A. Reynolds v. Sims
Further evidence for the necessity of Senate reform and the authority to do so is found in the case Reynolds v. Sims, 377 U.S. 533 (1964). In their ruling on the reapportionment of Alabama State House and Senate districts, the Supreme Court held that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a [substantially equal] population basis.”[8] When Alabama attempted to justify its system through comparison to the composition of the federal Senate, the Court replied that “the historical circumstances which gave rise to the congressional system of representation, arising out of compromise among sovereign States, are unique and without relevance to the allocation of seats in state legislatures.”[9] However, in the very same ruling, the Court held that “Legislators represent people, not areas,” and “revision [of districts] less frequent than decennial would be constitutionally suspect.”[10] It has been over 230 years since the last time our federal Senate districts were ‘revised.’ The two-per-state rule has not yet been altered from the original framework of the Constitution—significantly longer than the Court’s suggestion of reapportionment every 10 years—and should therefore be considered “constitutionally suspect.”
Despite stating that the federal Senate is historically exempt from these principles, the Reynolds holding also stipulates that “The right of suffrage is denied by debasement or dilution of a citizen's vote in a state or federal election” and that “Considerations of history, economic or other group interests, or area alone do not justify deviations from the equal population principle.”[11] There are clear contradictions here as the Court says that the Senate’s Constitutional history render it immune from changes even though statistics clearly show that it dilutes and thereby “[denies] the right of suffrage,” and also states that “[historical] considerations” should not be a barrier to equal representation among legislative districts. With this logical fallacy acknowledged, the next consideration is whether anything should be done to address the issue. Fortunately, the Reynolds ruling answers this question as well: “Courts should attempt to accommodate the relief ordered to the apportionment provisions of state constitutions insofar as is possible.” [12] A reasonable interpretation of this decision is that the Senate in its current format is incompatible with the spirit of the Constitution and its guarantee of voting rights—and it is the duty of the Supreme Court, as well as the executive and legislative branches, to correct this offense. The right of the people to have their votes matter equally is more important than the weight of a state’s influence on the federal government and the country as a whole.
6. The Great Compromise
To some, the idea of questioning the framework of the government as laid out in the Constitution is seditious. At some point, however, it becomes illogical to not question whether a system of government laid out hundreds of years ago—years before the modern semaphore telegraph or steam locomotive had even been invented—is the ideal structure to represent and serve our populace in the modern age. Even at the time of writing, some of the Framers of the Constitution expressed concerns about the makeup of the Senate, which had been created to appease the interests of small states as part of the Great Compromise of 1787. Alexander Hamilton, one of the original framers of the Constitution, wrote in Federalist Paper No. 22: “Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York… Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail… this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense.” James Madison and George Washington shared similar reservations, but considered adopting the unequal distribution of Senators a necessary evil in order to gain the support needed to pass the Constitution as a whole.[13] As a society, the United States tends to regard the Framers with near-deified status; and as the decades and centuries have passed, we have begun to consider the original Constitution to be a sort of infallible document, establishing the ideal and only format of government that the United States should ever have. Even as they wrote the original Constitution, however, its authors knew that the text was not without flaws or necessary compromises; it is not an illogical leap to suppose that they assumed future generations would take up the mantle of redressing issues with the document as such problems arose. The Senate has never not been a problem—it is an inherent challenge to not only the “one person, one vote” precedent established in Reynolds, but also to the definition of suffrage as a whole. A patriot should want the United States to thrive both now and in the future; if one of the best ways to ensure this is to revise the makeup of the Senate, refusing to do so seems more un-American than clinging to the two-Senator-per-state rule.
7. Conclusion
Depending on to which philosophy of legal interpretation an individual subscribes, their reaction to the idea of changing the makeup of Senate representative apportionment will vary—as will their opinions of how such changes can or should be enacted if it proves possible. As the first step is successfully advocating for some form of change to the Senate as necessary, the exact mechanics of how such a structural overhaul can be arranged are not immediately pressing. Scholars who have studied the subject, however, have come up with a variety of possible solutions. One such possibility published by Professor Eric W. Orts of the Wharton School at the University of Pennsylvania, suggests that the Senate be made up of 110 members; each state will retain at least one Senator, while the remainder is allocated to different states based on population. Orts also provides theoretical mechanics for how such reform could be achieved.[14] Attorney and writer Simon Barnicle suggests that adding new states to the country (namely the District of Columbia and possibly Puerto Rico, though the latter’s possible statehood presents other practical and moral challenges) will help balance the minority rule that sees partisan vote skews worsening as more Americans move to a handful of states which are already underrepresented in the Senate.[15] Regardless of which, if any, solution sounds most appealing, some degree of change to our government is inevitable. This is not the same United States that was founded over two hundred years ago, and it is long past time that we acknowledged this as a nation. The U.S.’s rigid conformity to the exact form of governance laid out in the Constitution, a document hundreds of years old, undermines the very premise of our republican government and the democratic voting process as a whole. Our best path forward is to take prescient action to get ahead of worsening voting skew rather than attempting to retroactively redress the challenges it poses to the sanctity of voting rights for all United States citizens.
NOTES:
Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html.
Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/.
Wesberry, 376 U.S. at 18
McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution.
Ibid., 5
Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress.
Gaffney, 412 U.S. at 772, 777, 778
Reynolds, 377 U.S. at 568
Ibid., 571-577
Ibid., 562
Ibid., 554-555
Ibid., 5784
Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population.
Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/.
Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/.
BIBLIOGRAPHY:
Chong, Jane. “This Is Not the Senate the Framers Imagined.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/01/not-senate-framers-imagined/605017/.
Barnicle, Simon. “The 53-State Solution.” The Atlantic. Atlantic Media Company, February 11, 2020. https://www.theatlantic.com/ideas/archive/2020/02/case-new-states/606148/.
Gaffney v. Cummings, 412 U.S. 735 (1973)
Hertzberg, Hendrik. “Alexander Hamilton Speaks Out (III): Two Senators Per State, Regardless of Population?” The New Yorker. The New Yorker, June 18, 2017. https://www.newyorker.com/news/hendrik-hertzberg/alexander-hamilton-speaks-out-iii-two-senators-per-state-regardless-of-population.
McAuliffe, Colin. “Memo: The Senate Is an Irredeemable Institution.” Data For Progress. Data For Progress, December 17, 2019. https://www.dataforprogress.org/memos/the-senate-is-an-irredeemable-institution.
Noel, Hans. “The Senate Represents States, Not People. That's the Problem.” Vox. Vox, October 13, 2018. https://www.vox.com/2018/10/13/17971340/the-senate-represents-states-not-people-constitution-kavanaugh-supreme-court.
Nwanevu, Osita. “How Much Do Democrats Need to Win By?” Slate Magazine. Slate, March 27, 2018. https://slate.com/news-and-politics/2018/03/how-much-do-democrats-need-to-win-by.html.
Orts, Eric W. “The Path to Give California 12 Senators, and Vermont Just One.” The Atlantic. Atlantic Media Company, January 4, 2019. https://www.theatlantic.com/ideas/archive/2019/01/heres-how-fix-senate/579172/.
Reynolds v. Sims, 377 U.S. 533 (1964)
Reynolds, Molly E. “Republicans in Congress Got a ‘Seats Bonus’ This Election (Again).” Brookings. Brookings, January 27, 2017. https://www.brookings.edu/blog/fixgov/2016/11/22/gop-seats-bonus-in-congress/.
Yglesias, Matthew. “American Democracy's Senate Problem, Explained.” Vox. Vox, December 17, 2019. https://www.vox.com/policy-and-politics/2019/12/17/21011079/senate-bias-2020-data-for-progress.
Wesberry v. Sanders, 376 U.S. 1 (1964)
