Fix Senate Imbalance: add New States via Subdivision:
A Letter to My Senators (a version also sent to Congressman Jones)
January 30, 2021
United States Senator for New York and
United States Senate Majority Leader
322 Hart Senate Office Building
United States Senate
Washington DC 20510
The Honorable Kirsten E, Gillibrand
United States Senator for New York
478 Russell Senate Office Building
United States Senate
Washington DC 20510
RE: FIXING THE SENATE, A RADICAL IDEA
I am Joann Prinzivalli, one of your constituents from White Plains New York. I wrote to you on January 25th about the insurrection, restoring and expanding the Fairness Doctrine and breaking up media conglomerates. Today, I am writing about fixing unequal representation in the Senate.
There is a lot of buzz about the Filibuster rule, and how Senator McConnell acquiesced in allowing a vote on organizing the Senate only once he had assurances from two “blue dog” (no insult intended) Democratic Senators, Senator Joe Manchin of West Virginia, and Senator Kyrsten Sinema of Arizona, that they would not vote to eliminate the filibuster. (I’d support a restoration of the speaking filibuster.)
My idea is not in the “buzz,” but I think it will bring much-needed change in the Senate to make it fair. Allow states to subdivide!
Article I Section 3 of the Constitution originally provided, as to the Senate:
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.
The 17th Amendment modified that slightly:
The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote.
Because of Article I and the 17th Amendment, the United States Senate currently has enshrined in it a rule that runs counter to the principle of “one person, one vote.”
Article V of the Constitution concludes the description of the amendment process with a clause stating
“. . . that no state, without its consent, shall be deprived of its equal suffrage in the Senate”
The Constitution makes it clear that each state is entitled to equal representation in the Senate, and that even a constitutional amendment cannot change this unless it is ratified by every state.
The SCOTUS has applied the “one person, one vote” principle to state legislatures, and particularly their upper houses – many states with bicameral legislatures mimicked the federal system, treating their upper houses as representative of counties, each county being treated equally regardless of population, or used some other unequal method of apportioning upper house representation. This was changed in states and in many municipal governments after the Supreme Court decided Reynolds v. Sims, 377 U.S. 533 in 1964.
In Westchester County, where I live, the Town of Greenburgh was successful in challenging the composition of the County’s legislative body, which was at that time the Board of Supervisors, in Greenburgh v. Board of Supervisors of Westchester County 49 Misc.2d 116 in 1966, leading the way to a proportionally-represented Board of Legislators in 1970.
Moving back to the U.S. Senate – you cannot change the voting power of Senators to deprive each state of equal suffrage, BUT what may be possible would be to allow each state to divide itself into a number of states equal to the number of representatives that the state has in the House of Representatives, or use some other equitable formula. This could result in a Senate twice the size of the House, but it would make for a Senate without as great a disparity in representation.
Constitution Article IV Section 3 provides limits:
“New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress”
While you consider admitting Washington DC and Puerto Rico as states, you might want to consider having Congress authorizing states to divide along the manner outlined, and then leaving it to the legislature of each state (of those that can) to decide for themselves whether they want to subdivide.
You might find some inspiration in the Utah Enabling Act of 1894 (28 Stat. 107), which was signed into law by Grover Cleveland on July 16, 1894 – the new enabling act would have to create a mechanism for each new state to form itself, within those states whose legislatures agree to partition themselves into states bounded by their then-present House boundaries.
One might wonder what impact this might have on other boundaries, including municipal boundaries. New York City, for example, is comprised of five counties. It would be divided into a number of states, each of which would have two US Senators and one US representative (some of them still crossing over City borders) – one might want to continue other boundaries to operate – so the legislation should address an intermediate level of government between states and federal government by redesignating divided states as Regions (or use some other term) to permit each Region to retain its former state and municipal governing structures, with the new states created from them existing for the purpose of representation on the House and Senate (though with some added mechanism to address other state-level issues).
Then there is the issue of redistricting – once a state elected to become a Region divided into a number of States, what would happen when redistricting would require boundary changing to add or subtract States that were once merely Congressional Districts? It wouldn’t - each state would be protected from downsizing, but could conceivably add a representative without having to further subdivide.
It’s not an elegant solution, but it is certainly no worse than some of the “compromises” that gave rise to the original Constitution. Perhaps you might want to at least give it some thought. Thank you for taking the time to address this issue as I hope you will.