If Brett Kavanaugh is confirmed by the Senate on a party-line vote, the 51 Republicans who vote for him will represent under 54 million people, while the 49 Democrats and Independents who vote against him will represent over 79 million people.¹ That is to say, the undemocratic nature of the US Senate will turn 41% of the two-way popular vote into 51% of the seats and 100% of the power.
And this problem is getting worse. When the Constitution was first adopted, the largest state had fewer than 10 times the voters per senator as the smallest;² now, that ratio is 72.³
This has a clear impact in terms of racial representation. One good way to measure that impact is the difference between the national percentages of various groups, and the percentages in the median state. For instance, in 2016 the national percentage of non-Hispanic Whites (excluding Puerto Rico) was 61.3%, while the median states were Arkansas and Massachusetts with 73%; a difference of 11.7%. In other words, a bill could get a majority in the Senate even if it was only senators from states with under 28% racial and ethnic minorities voted for it; states near or above the national average of 39% could be steamrolled.
Using the ratio between overall percentages and median percentages, we can get a “median Senate voting power” index for each race. That’s 1.19 for non-Hispanic Whites; 0.58 for African-Americans; 0.40 for Hispanic Americans; 0.39 for Asian-Americans; and 0.96 for Native Americans. By this measure, non-Hispanic Whites have over 2.5 times as much voice in the Senate as Asians do. If you took the median not by state population but by the voters in the winning coalition, that chasm would almost surely be even wider.
I can already hear the response from status quo defenders: “the US is a republic, not a democracy; the Senate was designed to protect the interests of small states”. This is silly. The moral basis for “republic not a democracy” is the idea that checks and balances between deliberative, representative bodies can curb the excesses of direct democracy. The Senate’s unrepresentative nature is not part of that moral core, but merely a compromise to help ensure ratification. Wyoming was no part of that original bargain, and its supposed sovereignty cannot possibly morally justify a system where 41% of the voters get 100% of the power.
Can the unrepresentative Senate be fixed? It’s tough. Article 5 of the US Constitution guarantees that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” So reapportioning the Senate would arguably take two Constitutional amendments — one to remove this guarantee, and a second to actually make the change. Given that even one amendment is almost impossible to pass in the current political climate, two is far beyond what’s realistic.
But that doesn’t mean we can’t improve matters. The first step would be to offer statehood to Washington DC and Puerto Rico. If DC and Puerto Rico each accepted an offer of statehood, the mean-median gaps for most groups above would shrink; for instance, the ratio between White and Black “median Senate voting power” would shrink from 1.83 to 1.58. This improvement in overall racial representation would more make up for the slight worsening in imbalance in sheer size from having DC as a state.
And as a longer-term dream, there are ways around the article 5 guarantee. For instance, an amendment to the constitution could require that any two contiguous states that are both smaller than the 38th-largest state must merge. If applied right now, this would merge Wyoming, South Dakota, and North Dakota; Montana and Idaho; and Vermont and New Hampshire; for a net reduction of 4 states (all of them below-median in total ethnic/racial minority population). The number 38 is, of course, the number of states it would currently take to ratify an amendment. It’s true that, today, there’s no way the 38 largest states would all agree to such an amendment; but as the malapportionment of the Senate continues to grow, it might become possible.
Another solution would be to leave the Senate with its current composition, but strip most of its powers. This would also require a constitutional amendment, and so similar points about viability apply.
But one way or another, we can’t allow this 18th-century institution to continue to grow more undemocratic forever.
This is the first in a series of articles on fixing American democracy. Later articles will deal with the gerrymandered House of Representatives, spoiled single-winner elections, and the work of the Center for Election Science. If you like this article, follow me here or on twitter to be notified of the follow-ups.
¹Senate Republicans got a total of 54907770 votes in their most recent elections, while Senate Democrats got a total of 79171650. In the case of appointees, this counts the votes for the governor who appointed them. Data source, https://uselectionatlas.org/
²Virginia had 10 representatives, Delaware had just 1. But Virginia had fewer voters per representative, because the 3/5ths compromise gave (white) Virginia voters extra voting power on the backs of the people they enslaved.
³In terms of raw population, California is “only” 67 times as big as Wyoming. But in terms of votes in the latest Senate election, that ratio is 72.