The 53-State Solution

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America has become a nation of minor­i­ty rule.  

Two of the past three pres­i­dents received fewer votes than their oppo­nent. In 2017, most leg­is­la­tion passed by the Senate was supported by senators representing only a minority of the population. And after the con­fir­ma­tion of Justice Brett Kavanaugh, all five of the con­ser­v­a­tive Supreme Court jus­tices — a major­i­ty of the Court — have been appoint­ed by pres­i­dents who lost the pop­u­lar vote, sup­port­ed by a group of sen­a­tors who received fewer votes than the oppos­ing sen­a­tors, or both.

The U.S. Constitution has sev­er­al pro­vi­sions that can pro­duce anti­de­mo­c­ra­t­ic elec­toral out­comes. The Electoral College is a clear exam­ple. But it is not the only one. The appor­tion­ment of sen­a­tors by state, not pop­u­la­tion, nat­u­ral­ly gives those in less pop­u­lat­ed states dis­pro­por­tion­al rep­re­sen­ta­tion. And even in the House of Representatives, the will of the major­i­ty can be thwart­ed due to ger­ry­man­der­ing and the lack of rep­re­sen­ta­tion for cit­i­zens living in Washington, D.C., or in U.S. ter­ri­to­ries.

None of these arrange­ments are nec­es­sar­i­ly par­ti­san, and for much of the nation’s his­to­ry, they did not con­sis­tent­ly favor either polit­i­cal party. But today, the system is in ten­sion with the bedrock prin­ci­ple of democ­ra­cy: major­i­ty rule. Due to an advan­ta­geous dis­tri­b­u­tion of voters in the right states, the Republican Party has repeat­ed­ly been able to con­trol the fed­er­al gov­ern­ment despite a lack of pop­u­lar sup­port. In 2016, for exam­ple, Republicans failed to win a major­i­ty of votes cast for the House, Senate, or the pres­i­den­cy, yet nonethe­less secured con­trol of all three.

Realizing that the deck is stacked against them, but rec­og­niz­ing that con­sti­tu­tion­al amend­ments are a pipe dream, some Democrats have called for struc­tur­al reforms that could be accom­plished with a simple major­i­ty in Congress: court pack­ing, fil­i­buster reform, and the legal­ly dubi­ous Senate Reform Act, to name a few. These pro­pos­als, while per­haps well inten­tioned, are inad­e­quate. At best, they are tem­po­rary fixes — the minute Republicans regain con­trol, they will retal­i­ate in kind. And given the struc­tur­al advan­tages enjoyed by Republicans, Democrats are unlike­ly to ben­e­fit in the long run.

A better solu­tion to the prob­lem of minor­i­ty rule would address it direct­ly. Democrats — if and when they regain con­trol of Congress — should add new states whose con­gres­sion­al rep­re­sen­ta­tives would likely be Democrats. In areas that are not cur­rent­ly states, like Washington, D.C., or ter­ri­to­ries like Puerto Rico, this could be done with a simple con­gres­sion­al major­i­ty. But Democrats should also con­sid­er break­ing up pop­u­lous Democratic states and “un-ger­ry­man­der­ing” the Senate. Perhaps there could be a North and South California, or an East and West Massachusetts. A new state of Long Island, an area that is geo­graph­i­cal­ly larger than Rhode Island, would be more pop­u­lous than most of the present­ly exist­ing states.

In the short term, new Democratic states would remedy the advan­tages Republicans cur­rent­ly hold in the Senate — and, to a lesser extent, the Electoral College — which allow a party to con­trol the fed­er­al gov­ern­ment despite a lack of pop­u­lar sup­port. And unlike other pro­gres­sive pro­pos­als, the risk of retal­i­a­tion and esca­la­tion is low. Because adding states would also add Democratic sen­a­tors, there would be no way for Republicans to imme­di­ate­ly add states of their own with­out an over­whelm­ing elec­toral vic­to­ry.

In the longer term, new Democratic states would open the door to con­ver­sa­tions about con­sti­tu­tion­al amend­ments that would make American democ­ra­cy fairer. Although they are cur­rent­ly unre­al­is­tic, amend­ments to abol­ish the Electoral College or reform the Senate become much more plau­si­ble if Republicans no longer enjoy a polit­i­cal advan­tage because of those insti­tu­tions. New states, and the implic­it threat of more, would pro­vide the lever­age nec­es­sary to build a more equi­table system.

Democrats’ cur­rent predica­ment stems from pro­vi­sions in the Constitution that treat voters dif­fer­ent­ly depend­ing on where they live. Voters in small states get extra influ­ence in the Senate, and voters in large bat­tle­ground states get extra influ­ence in the Electoral College. Meanwhile, voters in large states have their votes dilut­ed in the Senate, and cit­i­zens who don’t live in states — like D.C. or U.S. ter­ri­to­ries — have no mean­ing­ful rep­re­sen­ta­tion in Congress. As a result, Democrats can rou­tine­ly win the major­i­ty of votes cast in fed­er­al elec­tions but fail to trans­late those votes into power because their voters are in the wrong places.

For exam­ple, in the 2018 midterms, Democratic Senate can­di­dates col­lec­tive­ly beat Republican can­di­dates by nearly twenty per­cent­age points. But because of where those votes were cast, Republicans didn’t just hold on to their major­i­ty in the Senate, they actu­al­ly increased it, pick­ing up two seats. Even if you throw out California’s votes (with two Democratic can­di­dates up against each other), Democrats still man­aged to win the pop­u­lar vote while losing seats.

And the results can’t be entire­ly explained by the fact that the slate of Senate seats up in 2018 were par­tic­u­lar­ly favor­able for Republicans. In 2016, Democratic Senate can­di­dates also won the pop­u­lar vote by more than ten points, and only man­aged to pick up two seats. In 2014 — the last time Republicans won the Senate pop­u­lar vote — the GOP turned less than 52 per­cent of the pop­u­lar vote into a nine-seat pick-up.

Unfortunately for Democrats, bar­ring an unfore­seen polit­i­cal realign­ment, it’s going to get worse. Demographic trends are such that a greater per­cent­age of Americans are increas­ing­ly living in large states, which are dis­ad­van­taged in terms of rep­re­sen­ta­tion. By 2040, it is esti­mat­ed that 40 percent of Americans will live in just five states. Half the pop­u­la­tion will be rep­re­sent­ed by 18 Senators, the other half by 82.

This isn’t nec­es­sar­i­ly incom­pat­i­ble with major­i­ty rule. States have never been equal in size, and small and large states do not nec­es­sar­i­ly have any­thing sub­stan­tive in common. Wyoming and Vermont, the two small­est states by pop­u­la­tion, have entire­ly dif­fer­ent polit­i­cal cul­tures, as do the two largest, California and Texas. As James Madison noted at the Constitutional Convention—when he argued fervently against the equal representation of states—the only issue that should con­sis­tent­ly divide small and large states is the struc­tur­al ques­tion of how to allo­cate power among them.

However, small and large states are now divid­ed polit­i­cal­ly in a way they haven’t usu­al­ly been. As Matthew Yglesias notes, one impor­tant factor is race. Nonwhite voters rep­re­sent a grow­ing share of the coun­try, but they are uneven­ly dis­trib­uted, often clus­tered in large states. Another factor is higher edu­ca­tion. White voters are more divid­ed on lines of edu­ca­tion­al attain­ment, and small­er states are more likely to have a less edu­cat­ed pop­u­la­tion than larger states. As these sorts of demo­graph­ic divides have come to coin­cide with the rural-urban divide, one party — the Republicans — has ben­e­fit­ed tremen­dous­ly, and is now the favorite for the major­i­ty of states, but not the major­i­ty of people.

As a result, the fed­er­al gov­ern­ment is increas­ing­ly acting on behalf of a small­er frac­tion of the pop­u­la­tion. And unless Democrats get seri­ous about adding new states to coun­ter­act the Republican advan­tage, the dis­con­nect between pop­u­lar votes and con­trol of the fed­er­al gov­ern­ment is likely to grow.

The only way to seri­ous­ly address the issue is for con­gres­sion­al Democrats to add states, there­by chang­ing the bal­ance of power with new rep­re­sen­ta­tives. The good news for Democrats is that this can be done by a simple major­i­ty in Congress.

Article IV, Section 3 of the Constitution gives Congress the power to admit new states, sub­ject to a pres­i­den­tial veto. The only restric­tion on Congress’s power is that new states made from parts of exist­ing states require the orig­i­nal state’s per­mis­sion. Historically, many states exist­ed as fed­er­al ter­ri­to­ries prior to state­hood, and some states spent years nego­ti­at­ing with Congress on the terms of their admis­sion. But these are option­al steps — all it really takes is an act of Congress delin­eat­ing the bound­aries of new states and pro­vid­ing for their con­gres­sion­al elec­tions.

There are already sev­er­al plau­si­ble can­di­dates for new states that would lean Democratic. D.C., whose cit­i­zens have never had voting rep­re­sen­ta­tion in Congress, but have voted over­whelm­ing­ly for state­hood in ref­er­en­da, should be admit­ted as a state. (D.C. does already have three votes in the Electoral College.)

The per­ma­nent­ly inhab­it­ed ter­ri­to­ries, like Puerto Rico, are sim­i­lar­ly dis­en­fran­chised, and could also make good can­di­dates for state­hood. Admittedly, the case for each ter­ri­to­ry isn’t as strong as it is for D.C.— ref­er­en­da for ter­ri­to­r­i­al state­hood have had mixed results, as the his­to­ry of colo­nial­ism in the ter­ri­to­ries has some res­i­dents pre­fer­ring inde­pen­dence. But with a renewed expres­sion of sup­port for state­hood and a promise of equal cit­i­zen­ship, the ter­ri­to­ries should be allowed to join the union.

A third option is simply to break an exist­ing Democratic state into mul­ti­ple states. This would require per­mis­sion from the state being broken, but per­haps one state — or sev­er­al — would be enticed by the prospect of increas­ing its rep­re­sen­ta­tion in Congress, and chang­ing the bal­ance of power in the fed­er­al gov­ern­ment.

Wherever they come from, new Democratic states would imme­di­ate­ly pro­vide two ben­e­fits. First, they would add Democratic votes to the Senate and the Electoral College, which would large­ly, if not entire­ly, neu­tral­ize the exist­ing Republican advan­tages in those insti­tu­tions.

As a result, the fed­er­al gov­ern­ment would more close­ly reflect the policy pref­er­ences of the elec­torate. Popular leg­isla­tive ideas like gun con­trol, paid family leave, and immi­gra­tion reform — ideas that for years have died in the Republican-friend­ly Senate — might final­ly have a chance.

Second, new states would pre­vent Republican retal­i­a­tion, at least tem­porar­i­ly. Unlike court pack­ing or fil­i­buster reform — which prac­ti­cal­ly invite an esca­lat­ing set of tit-for-tats — adding new states, if done aggres­sive­ly enough, pre­vents an oppo­si­tion party from doing the same by bol­ster­ing the Senate major­i­ty the oppo­si­tion would need to add states of their own. When adding states, there is no back-and-forth. Whichever party strikes first wins.

Republicans would, of course, cry foul, and accuse Democrats of manip­u­lat­ing the state­hood process for par­ti­san pur­pos­es. But that’s par for the course: American state­hood has always been intense­ly polit­i­cal.

As Ian Millhiser has writ­ten, back when Republicans were the party of Lincoln they understood this well. Just days before the elec­tion of 1864, con­gres­sion­al Republicans were wor­ried about President Lincoln’s reelec­tion chances and were short the votes needed to abol­ish slav­ery. Rather than risk defeat, they turned the sparse­ly pop­u­lat­ed ter­ri­to­ry of Nevada into a state, adding friend­ly votes to Congress and the Electoral College.

In 1888, Republicans returned to the same play­book. Democrats had pro­posed a com­pro­mise where­by sev­er­al west­ern ter­ri­to­ries would be admit­ted in num­bers that would evenly bal­ance incom­ing Democrat and Republican sen­a­tors. Dakota Territory would become a Republican state; New Mexico would be Democratic. But when Republicans swept the 1888 elec­tion, they decid­ed to sweet­en the deal. Dakota was split in half to create four new Republican sen­a­tors, and New Mexico would remain a ter­ri­to­ry until 1912.  

Most Americans weren’t alive the last time a state was admit­ted to the union, so for some, states might seem like pre­or­dained polit­i­cal enti­ties, above the fray of par­ti­san pol­i­tics. But in truth, the pol­i­tics of state­hood have never been divorced from the effect they have on the bal­ance of power in Congress. If North and South Dakota are accept­able, so should be North and South California. That’s always been part of the game, and Democrats shouldn’t blanch from it.

Republicans might also argue that the addi­tion of new states would be unfair. It doesn’t seem right, they might sug­gest, to let new, low-pop­u­la­tion states deter­mine the bal­ance of power in Congress. But, of course, that’s what America already does today — it just hap­pens to favor Republicans.

Objections to the unfair­ness of new sen­a­tors from, say, the new states of Brooklyn and Queens should ring hollow. Each of those bor­oughs, by itself, has a pop­u­la­tion larger than that of a dozen states. In 2016, Brooklynites cast more votes for Donald Trump than Alaskans did, where Trump won by double digits. Why are the bor­oughs of New York City — siz­able com­mu­ni­ties with dis­tinct pol­i­tics and his­to­ry — less deserv­ing of state­hood than Alaska, Vermont, or any other state with a small­er pop­u­la­tion?

What’s unfair is a status quo where Republicans con­tin­u­al­ly hold power despite their unpop­u­lar­i­ty, thanks to an advan­ta­geous align­ment of voters in the right places.

If there is a com­pelling argu­ment against the addi­tion of new states, it is that it would be only a tem­po­rary solu­tion. In the long run, par­ties and demo­graph­ics change, and no major­i­ty is per­ma­nent. New states might open Pandora’s box and give Republicans the idea to add a hand­ful of new Dakotas when the tables turn.

And even in the short term, new states won’t solve the fun­da­men­tal­ly anti­de­mo­c­ra­t­ic nature of the Senate and the Electoral College. If one were design­ing an elec­toral system from scratch, it wouldn’t make sense for con­trol of the fed­er­al gov­ern­ment to hinge on the for­tu­itous dis­tri­b­u­tion of voters within and around state lines, which can and have been drawn arbi­trar­i­ly. This whole pro­pos­al demon­strates the absur­di­ty of the system in the first place.

But these are not unsolv­able prob­lems, and in fact the for­ma­tion of more states could be just the thing to solve them. New states could create the con­di­tions for reforms that would reduce the influ­ence of state lines in deter­min­ing con­trol of the fed­er­al gov­ern­ment.

In a world with a few more Democratic states — a world in which the Senate and the Electoral College favor Democrats — Republicans would prob­a­bly agree that these insti­tu­tions are unfair.

In fact, not too long ago they did. It has been only a few decades since a bipar­ti­san coali­tion in the House of Representatives voted over­whelm­ing­ly to abol­ish the Electoral College. And that was only five years after the Supreme Court, by an 8-to-1 margin, ended the malap­por­tion­ment of state leg­is­la­tures, many of which had cham­bers mod­eled after the U.S. Senate. That deci­sion, while con­tro­ver­sial at the time, is uni­ver­sal­ly accept­ed today because people intu­itive­ly under­stand that a leg­is­la­ture isn’t fair if some cit­i­zens get more voting power than others.

A few new states would prob­a­bly be enough to bring Republicans to the table for con­sti­tu­tion­al reforms, but if they weren’t enough, there’s no real limit on the number of states that could be added. Theoretically, Democrats could press an advan­tage indef­i­nite­ly, using the implic­it threat of new states as lever­age for reform.

That, of course, would require a broad­er con­ver­sa­tion about minor­i­ty rule, and a sus­tained polit­i­cal move­ment against it. But if it sounds out­landish, it’s not. As Jeremy Sheff, a law professor at St. John’s University, notes, it’s the same way pro­gres­sives in the United Kingdom reformed the House of Lords, the anti­de­mo­c­ra­t­ic upper cham­ber of Parliament.

During the early twen­ti­eth cen­tu­ry, pop­u­lar leg­isla­tive pro­pos­als repeat­ed­ly passed the demo­c­ra­t­i­cal­ly elect­ed House of Commons but died in the unrep­re­sen­ta­tive House of Lords. It was only Prime Minister H. H. Asquith’s threat to create new Liberal peers in the upper cham­ber that induced the Lords to accept demo­c­ra­t­ic reforms reduc­ing their power.

In the U.S., the threat of new states — and their new sen­a­tors — could exert sim­i­lar pres­sure on those who might oth­er­wise oppose reform. At the very least, new states would coun­ter­bal­ance the struc­tur­al advan­tages that are increas­ing­ly tilted in favor of Republicans. Until then, the American gov­ern­ment will con­tin­ue to dis­tort the will of its people — and if cur­rent trends con­tin­ue, risk losing their loy­al­ty alto­geth­er.

Source: Route Fifty

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