When it comes to fair votes, the US Senate is ripe for reform

Jon Narcross
Author:
Jon Narcross

Posted on the 2nd November 2020

If seats are ever to match votes in America, the US will need to look at the distorted Senate.

While all eyes are firmly fixed on the race for the White House and, if you’re like us, the injustice of the Electoral College, the battle for the Senate is also worth watching out for.

The US Senate is made up of 100 members, two for each state, who serve a six-year term. Terms are staggered which means that around one-third of seats are up every two years.

Thirty-three Senate seats are up for grabs on election day, as well as two Senate special elections in Arizona and Georgia to fill seats vacated by the death of John McCain in Arizona and the retirement of Georgia’s Johnny Isakson. With almost two-thirds of Senate seats up for election held by the Republicans, the Democrats are pushing hard to regain control of this chamber.

But the odds are heavily stacked against them.

We’ve written on this blog about the warping effect of the Electoral College, an extreme form of winner-takes-all politics, that has repeatedly delivered wrong winner elections and seen presidents elected without a mandate from the national popular vote.

But the structural inequalities of US politics do not end with the Electoral College. In fact, it is the Senate that produces the most warping effects with the imbalance between population and political representation even more pronounced.

A chamber for the states

A bicameral Congress was primarily the result of a compromise between those who felt that each state, since it was sovereign, should be equally represented at the federal level, and those who thought the legislature must directly represent the citizens.

This agreement between the larger, more populous states and the smaller, more rural ones – known as the Connecticut Compromise – led to the establishment of two chambers with distinct roles.

One was intended to be a ‘People’s House’, directly elected by the people, and with short terms obliging the representatives to remain close to their constituents.

The second, the Senate, served to equally represent each of the sovereign states, with two representatives appointed by state legislatures to represent their interests in Congress.

Electing the Senate

The right to vote for senators is relatively new. The original US constitution guaranteed Americans the right to vote only in a single federal office – the House of Representatives, with the president elected by the Electoral College. It took the 17th Amendment, ratified in 1913, to extend this right to the Senate.

For most of the US Senate’s 230-year lifespan, senators were appointed by their respective state legislatures, upholding the idea of the Senate as a chamber to represent the states’ interests. Ordinary voters didn’t get a say.

By the late 19th century, some state legislatures were deadlocked over the election of a senator when different parties controlled different houses, and Senate vacancies could last months if not years.

Some reformers at the time attempted a workaround, advocating what became known as the ‘Oregon system’, which used a state primary election to identify the voters’ choice for senator, with all candidates for the state legislature pledging to honour the result of the vote.

By the early 20th century over half of all states had adopted the ‘Oregon system’ but following a corruption and bribery scandal uncovered in the election of Illinois senator William Lorimer, it was decided a constitutional amendment was needed to solve the problem.

Not all votes are equal

But what was intended to be an extension of democratic rights to American voters, and a way of ending political wrangling and corruption, ended up embedding a huge imbalance in individual voting power across the country.

The combined population of 15 states – Alaska, Idaho, Utah, Wyoming, North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Arkansas, Louisiana, Mississippi, Kentucky and South Carolina – is around 38 million people. These citizens are represented in the US Senate by 30 Republican senators, even though their combined population is less than that of California which has just two Democratic senators.

This imbalance means the current Senate Republican majority received 15 million fewer votes than the Democratic minority, giving them huge power to pass legislation and, as we’ve recently seen, appoint Supreme Court Justices that, politically, are at odds with the positions of the majority of voters.

The Senate system gives disproportionate power to smaller, rural (and largely Republican) states. But this imbalance isn’t just among states, it affects different demographics differently.

A study by the New York Times found that the US Senate gives the average black American just 75 percent as much representation, and just 55 percent for the average Hispanic voter.

Reforming the Senate

One potential step to addressing this imbalance would be to grant statehood to Washington DC and Puerto Rico.

Neither the US capital nor the island territory have representation in the US Senate, as well as having just one non-voting member each in the House of Representatives. This means their combined population of almost four million (largely black and Hispanic residents) are effectively unrepresented, while the 580,000 mainly white residents of Wyoming have 2 Senators and a Representative.

Another would be a wholesale re-distribution of seats.

The case for Senate reform has grown in recent years as the United States has increased in size and the disparity in population between states has become starker.

Even the Founding Fathers would have surely raised an eyebrow at a system that gave the 55 million people in California the same Senate representation as the 700,000 in Vermont.

Today the Senate voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in California, and the disparities among the states are only increasing.

There have, over time, been various proposals for reform. NYU professor Burt Neuborne has argued the best way forward is to break up large states into smaller ones, an idea that due to the US’ strong state-based identities is surely a non-starter. Former Michigan Congressman John Dingell even went as far as calling for the abolition of the Senate altogether.

But a simpler idea would be, as argued by legal scholar Eric W. Orts, to simply reallocate the seats based on population – giving each state one senator (to preserve federalism and equal representation) and apportioning the rest on the basis of population. German Lander vary between 3 and 6 seats in the Bundesrat based on population.

More conservative readers of the constitution have argued that such reform is impossible – that the one state/two senators rule is written into the constitution and cannot be changed.

But, as Orts argues, there have been successive amendments and legislation passed through Congress that have changed voting rights – in order to protect the idea of ‘equal suffrage’.

If the US is to uphold its constitutional commitment to equal suffrage and equal rights, then Senate reform looks like a vital step.

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