Equal Suffrage: Constitutionally Overcoming the Senate’s Small-State Bias

A trio of contentious Constitutional issues involving the Senate, Supreme Court, and D.C. and Puerto Rican statehood could be resolved, according to Assistant Opinion Editor Patrick Healy, if “Democrats could trade state and Supreme Court stability for a proportional Senate.”

If you take to technicalities and terms of service, you’ll love Article Five of the Constitution.

By Patrick Healy, Assistant Opinion Editor

The Constitution’s Great Compromise that formed the Senate and House of Representatives is a defining feature of U.S. federalism. High-population states needed the approval of smaller states in order to form a new government at all, so they agreed to create one house where states were represented and one where the people within those states were represented. The Compromise certainly was great for small states, who have only increased their power in the ensuing years. 

In 1770, according to World Population Review, the most populous state, Virginia, had 447,016 people, and Georgia, the least populous state, had 23,375. In 2020, California is the largest state at 39,937,500 people, and Wyoming, the smallest, hardly tops colonial Virginia at 567,025. The biggest-to-smallest population ratio has increased from 20 -to-1 in 1770 to more than 60-to-1 in 2020. 

Californians have pushed to split the state up, but those efforts have been shot down by the state’s Supreme Court. Less controversial proposals to grant the District of Columbia and Puerto Rico statehood have gained steam and appear likely to occur if Democrats regain the Senate and Presidency in the upcoming election. These territories deserve statehood (or independence, in Puerto Rico’s case) regardless of political calculations, but it’s undeniable that two new states would upheave the status quo. 

D.C. and Puerto Rican statehood might result in more balanced party representation, as both would be likely to elect two Democratic senators, but it would be a tenuous solution at best. Large states, which tend to be Democratic, would currently benefit, but the fate of their favored party would continue to be tied to the existence of like-minded small states. If the political winds shifted and people in large states no longer aligned with those in the new states, large states would end up even more underrepresented. 

Fortunately, another world power with a federal system of government has a way to deal with this. Germany’s Bundestag, its lower house, elects members from specific districts in their country, but apportions extra seats to parties who are underrepresented based on the total vote for all seats. Germany simply adds extra seats to the legal minimum of 598. 

The overhang system aims to rescue votes from the electoral dumpster and recycle them into the legislature. In regular districts, like those for our House of Representatives, wasted votes refers to the votes above a plurality that have no impact on an election. A district that votes 90% Democratic would receive the same number of seats as one that votes 51% Democratic. However, in the Senate, there is an additional arena of wasted votes. 

To better display where the Senate’s additional unused votes are, I’ll again compare Wyoming and California. In a simplified world with 100% voter turnout, the first 600,000 voters in California are represented equally to Wyomingites, but the next 39,400,000 add no voting power to the initial 600,000. 

We can continue to give each state two senators, and then add senators to ensure that each party has a proportionate number of senators. According to the Federal Election Commission, the 2014, 2016, and 2018 Senate elections (which make up the current Senate) generated about 120 million votes for Democrats, 105 million for Republicans, and 10 million for other candidates. The current Senate has, out of 100 members, 53 Republicans, 45 Democrats, and 2 independent candidates (both of whom caucus with the Democrats). 

A distribution based on the national popular votes from the 2014-2018 elections would yield 51% Democrats, 45% Republicans, and 4% third-party/independent candidates. For the U.S., in order for the Senate to comply with these percentages, Democrats would be given an extra 15 seats and third parties would collect an additional three seats. Smaller parties that only have membership in certain states would probably want to consolidate with similar parties in other states in order to maximize their seat output, but third parties would happily deal with this if it meant increased representation. 

In order to determine which people are awarded the extra seats, parties would submit a “party list” that ranks potential members and is used to fill any overhang seats earned by a party. Parties might choose to list their Senate candidates that came close to victory, perceived up-and-coming members, or winners of a convention or special primary. 

The belief that voters vote for a candidate’s party, not a candidate, justifies voters’ lack of direct choice for overhang members. Chuck Schumer is reelected every six years because he’s the established Democrat, not because he’s Chuck Schumer. Picking a different Democrat would erase the political capital and seniority, both of which matter in committee selection and appropitations, that Schumer has accumulated, so the party and voters just stick with Schumer. I believe that voters care more about the balance of parties in the Senate than a specific candidate, so they would be roughly as happy with a party-list Democrat as their elected Democrat. 

In addition to party imbalance, states receive unequal funding from the federal government because of the disproportionate Senate. Senators, especially powerful ones, negotiate for appropriations for their state. Because big states contribute significantly more to federal coffers than small states, but states have equal access to federal funds in the Senate, small states generally receive much more from Uncle Sam than they give.

A significantly thornier issue is the clause found in Article Five of the Constitution — “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate” — which stymies most structural Senate reform measures. Abolishing the Senate, even through an amendment, would probably be impossible without all fifty states agreeing to it, though I’m unsure if a clause of the Constitution could be used to invalidate a Constitutional amendment. To avoid this, states would continue to elect two senators each while the entire electorate’s Senate vote would award seats to underrepresented political parties, which aren’t explicitly connected to states. 

Even the most utopic proposed amendment still needs to become an amendment, and that’s where the process is threatened. Amendments require two-thirds approval of each chamber of the legislature or a constitutional convention called by two-thirds of state legislatures, and then must be confirmed by three-fourths of states, which would currently be 38. Only 27 amendments have been passed, and the most recent one was nearly three decades ago. 

Assuming that Democrats secure the Senate and that blue states, even small ones who realize that the success of their preferred national party would outweigh the benefits of their individual overrepresentation, support the amendment, most small states are Republican and would oppose reform. 

If Democrats win the presidency, Senate, and House in 2020, they’ll have awfully powerful leverage over Republicans. Specifically, they’ll have the ability to admit new states to the union and increase the size of —or, “pack” — the Supreme Court and other federal courts. This would allow them to nominate and confirm Democrat-approved judges to these new positions. They could also threaten to admit the District of Columbia and Puerto Rico as states or expand the judiciary if Republicans don’t support the amendment. 

Knowing that D.C. and Puerto Rico residents could very well vote to become a state and Democrats would have the ability to oblige them, Republicans might agree to Senate reform. This might sound like strong-arming, but the small states did the same thing to the large states to create the Senate in the first place. They threatened to not approve the Constitution if the big states didn’t agree to cede their just representation. 

Republicans might need more incentive than the threat of four new Democratic senators. Adding a provision to cap the Supreme Court at nine justices would prevent Democratic court packing and allow Republicans to keep their conservative majority and tout it as a victory to their abortion-concious base. 

An acceptable amendment might change the Senate to create an overhang system while constitutionally cementing the number of states at fifty and capping the number of Supreme Court justices in order to gain the support of at least enough GOP senators and states to reach two-thirds of senators and representatives and three-fourths of states. 

Sacrificing the statehood hopes of D.C. residents, nearly half of whom are Black, might seem harsh and even racist. Given what the potential alternative is — admitting D.C. and Puerto Rico but continuing the overrepresentation of small, heavily white states — the ability to fairly represent big states, where most minorities are located, would be the better choice for more underserved people. 

The constraints of the system ensure that one group will be hurt either way, and the best way to improve the most amount of lives would be for the Democrats to leverage powers they possess (admitting new states and expanding the judiciary) to gain one they don’t (making the Senate proportional). Either way, fixing the system requires that the Democrats retake the Senate and Presidency, a task made more difficult by the pro-Republican bias in Senate elections and a similarly biased institution, the Electoral College. 

If I’m wrong and the overhang system violates the “equal suffrage” clause, then I’ve wasted some time and a page in a college newspaper. If I’m right and the Democrats could trade state and Supreme Court stability for a proportional Senate, then three divisive issues could be, if not solved, then at least made so unchangeable as to settle the debate for good. 

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