PROPORTIONAL REPRESENTATION REVISTED-In 1995, Senator Daniel Patrick Moynihan declared, “Sometime in the next century the United States is going to have to address the question of apportionment in the Senate.” Perhaps that time has come.
Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing. The situation is untenable.
Pundits, professors, and policy makers have advanced various solutions. Burt Neuborne of NYU has argued in The Wall Street Journal that the best way forward is to break up large states into smaller ones. Akhil Amar of Yale Law School has suggested a national referendum to reform the Senate. The retired congressman John Dingell asserted here in The Atlantic that the Senate should simply be abolished.
There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how:
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Using 2017 census estimates as a proxy for the official one coming in 2020, the Rule of One Hundred yields the following outcome: 26 states get only one senator (having about 1/100 of the population or less), 12 states stay at two, eight states gain one or two, and the four biggest states gain more than two: California gets 12 total, Texas gets nine, and Florida and New York get six each. This apportionment shows how out of whack the current Senate has become.
In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.
The obvious reply is, “This is impossible! The Constitution plainly says that each state gets two senators. There’s even a provision in the Constitution that says this rule cannot be amended.” Indeed, Article V, in describing the amendment process, stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
This seems like a showstopper, and some scholars say it’s “unthinkable” that the one-state, two-senators rule can ever be changed. But, look, when conservative lawyers first argued that the Affordable Care Act violated the Commerce Clause, that seemed unthinkable, too. Our Constitution is more malleable than many imagine.
First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would — arguably — not apply.
Second, the states, through the various voting-rights amendments — the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth — have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.
Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”
Remember, too, that the Constitution is a complex framework document that has evolved over the course of more than two centuries. The Civil War inaugurated a century of ever-increasing recognition of voting rights through the aforementioned amendments, which created a new constitutional principle that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State” on specific grounds of race, color, sex, or age. All of these amendments include exactly the same enforcement provision as well: “Congress shall have the power to enforce this [amendment] by appropriate legislation.”
Congress has exercised its power under these amendments in legislation such as the Voting Rights Act of 1965. The Supreme Court applied the Equal Protection Clause of the Fourteenth Amendment to declare Senate-like malapportioned state legislatures unconstitutional in a number of cases, such as Reynolds v. Sims in 1964, which established a “one person, one vote” standard. As recently as Bush v. Gore in 2000, the Supreme Court affirmed equal voting rights of all citizens as an essential constitutional value. Although the Court trimmed a portion of the Voting Rights Act in Shelby County v. Holder in 2013, Chief Justice John Roberts, in his majority opinion, reaffirmed the authority of Congress to regulate in this field and endorsed a forward-looking orientation. “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command,” he wrote. “The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”
Race and what W. E. B. Du Bois called “the color line” are crucially at issue here because the current Senate allocation is heavily biased in favor of small states with predominantly white populations, and against large states where whites are in the minority or close to it. For example, in California, 38 percent of citizens are white. In Texas, that figure is 43 percent. Compare the two smallest states: Vermont is 94 percent white, and Wyoming is 86 percent white.
A comprehensive empirical review comparing the national population of whites, blacks, Latinos, and Asians with the median representation in each state found that “whites are the only group that Senate apportionment advantages.” Other, statistically smaller inequalities are present with respect to sex, age, and other constitutionally protected categories, such as sexual orientation.
Constitutional originalists will surely argue that the Founders meant “equal suffrage” in Article V to mean one state, two senators, now and forever. But the Founders could never have imagined the immense expansion of the United States in terms of territory, population, and diversity of its citizens.
Remember also that even if one takes original intent as definitive, the intentions informing Article V at the founding must be balanced against those behind the voting-rights amendments adopted a century or more later. These amendments clearly and repeatedly authorize Congress to protect “the right of citizens of the United States to vote” against any abridgement “by the United States.”
The plain dictionary meaning of abridge is to “reduce the scope” of a right or to “shorten the extent” of it. Unequal Senate apportionment abridges the voting rights of citizens in large states, including nonwhite citizens in those states. This kind of inequality is within the delegated power of Congress to address.
Laurence Tribe of Harvard Law School has recommended that when an earlier constitutional text conflicts with later textual amendments, we should follow “time’s arrow.” We should keep in mind that the original one-state, two-senators rule was written and ratified by property-owning white men, almost half of whom owned slaves, and that the voting-rights amendments were adopted after a war to end slavery. Frederick Douglass said the Civil War was fought to “unify and reorganize the institutions of this country,” and otherwise would have been “little better than a gigantic enterprise for shedding human blood.” He was right. Equality of voting rights is an essential constitutional principle that emerged from this struggle — and it’s been expanded since then in women’s suffrage, the civil-rights movement of the 1960s, and beyond.
There are therefore two strong constitutional arguments in favor of a Senate Reform Act. It protects the equal right of every American citizen to a rough mathematical equality of voting weight and power in their national government — with a constraint, recognizing the virtue in federalism, of allocating one senator to every state at a minimum. And it corrects a heavy, unjustified bias favoring white citizens in the Senate. It doesn’t go too far to describe the current Senate apportionment as a vehicle entrenching white supremacy.
Again, some originalists will stand against this argument, saying no state can lose a senator (old-style “equal suffrage”) without its “consent.” Again, this argument fails because states have already given their “consent” in the voting-rights amendments that give Congress the power — even the duty — to protect U.S. citizens against the denial or abridgment of equal voting rights.
An additional argument supporting the plausibility of a Senate Reform Act is that the Supreme Court might see fit to stay out of the mix. The unelected, nonrepresentative justices might revive an old but good doctrine against overturning a federal statute unless Congress makes a “clear mistake” about its constitutionality. Or the Court might defer to Congress on this issue by invoking the “political question” doctrine, which requires treading lightly in areas where a democratically elected branch has been explicitly granted constitutional power.
Several other structural benefits would follow from a Senate Reform Act. It would automatically mitigate the unrepresentativeness of the Electoral College, which allocates presidential electors to each state equal to the number of its congressional delegation — that is, the total number of representatives and senators. (I should point out also that if this reapportionment had, hypothetically, occurred prior to the most recent presidential election, the result would not have changed. Red gains in Texas and Florida would have offset a blue gain in California, and blue losses in New England would have balanced red losses in lightly populated western states.)
In large states, the election of multiple senators could allow a broader spectrum of political representation — e.g., both Ted Cruz and Beto O’Rourke — which might help reduce the poisonous polarization that characterizes our politics.
Last but not least, a new minimum of one senator for small states could ease the path toward statehood for the District of Columbia and Puerto Rico, which are currently unrepresented in Congress. Adding one senator for each of these new states to a Senate of 110 would prove less difficult politically than adding four to 100.
The immediate political likelihood for passage of the Senate Reform Act is not great, in large part because it’s not only more democratic than the status quo, but more Democratic, too. Taking the Trump electoral victory map of 2016 as a template and applying it to the 110 senators created under the reform, yields a gain of plus-eight senators for Democrats and plus-two for Republicans. From a political point of view, then, Democrats should favor the reform — and one can imagine it passing in some alternative future, even if some Democratic senators from small states would have to vote in favor of fairness and principle rather than parochial and racial privilege. Republicans in large states might also be hard-pressed to vote against their own citizens’ prospects for fairer and broader representation.
If a Democratic wave continues into 2020, then who knows, a Senate Reform Act could make America a democracy again.
(Eric W. Orts is a Professor at the Wharton School of the University of Pennsylvania. This piece appeared on The Atlantic and was posted on Medium.) Prepped for CityWatch by Linda Abrams.