Vladimir Sviracevic / Filip Bjorkman / Shutterstock / The Atlantic

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.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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