Wednesday, November 28, 2018

The Senate's Representational Imbalance (2019 edition)

Marty Lederman

Now that Cindy Hyde-Smith has, as expected, won the run-off election to serve the final two years of Thad Cochran's term as Senator from Mississippi (Cochran retired), we know that Republicans will have a 53-47 advantage in the 116th Congress beginning in January.

What percentage of the U.S. population will those 53 incoming GOP Senators represent, if we assume the Senators from a particular state represent the residents of that state?

Nineteen states, with a total of approximately 144,461,202 residents (based on 2018 estimates), will be represented by two Democratic Senators (if we count King and Sanders among them).

Twenty-two states, with approximately 130,126,870 residents, will be represented by two Republican Senators.

And the nine states with split delegations, i.e., with one Senator from each party--PA, OH, AZ, WI, CO, AL, WV, ME, MT (in order of population)--have a total of approximately 52,240,741 residents.

If we allocate the residents in those nine "split delegation" states evenly--if we assume, that is, the somewhat crude fiction that half of the residents are represented by Democratic Senators, and half by Republicans--then the 53 Republican Senators in the new Senate majority will represent only 47.8 percent of the population of the 50 states.  And that number doesn't even take account of the approximately 4.4 million residents of D.C. and the territories, who presumably would vote overwhelmingly for Democratic Senators, given the chance (although it's possible that the Puerto Rican electorate might, over time, choose some Senators who would caucus with Republicans).  If we accounted for them, the percentage of U.S. residents represented by the 53 GOP Senators would likely be closer to 46 percent.  And, importantly, it will be a remarkably unified majority, one that conforms in virtually every case to the wishes of the Majority Leader.

To be sure, this five to seven percent "representational imbalance" isn't a huge discrepancy in absolute terms--nowhere even close to predictions that by 2040 one-third of Americans might be represented by as many as 70 of the 100 Senators.  (I do not know how historically anomalous it is, either--i.e., in how many of the first 115 Congresses a unified majority of Senators represented less than half the nation.  If anyone knows of such calculations, please let me know.)  Nevertheless, because it moves the GOP from minority to majority status and because the 53 GOP Senators can be expected to march in lockstep with leadership (as will the vast majority of the 47 Democratic Senators), it makes all the practical difference in the world in terms of who controls the composition of the judiciary for the next two years (and perhaps beyond).  And that means, among other things, a continuation of the 50+ years of a Republican-appointed majority on the Supreme Court, despite the fact that a majority of Americans (and voters) have supported Democratic candidates for President and Senate in most recent elections, and the fact that the 47 Democratic Senators in the 116th Congress will represent states where a majority of Americans live.  (I discussed this judicial/political entrenchment phenomenon at greater length back in early October.)

On the broader question of whether the representational imbalance in the Senate is justifiable and/or lamentable, I highly recommend (i) this very interesting recent post by Mike Dorf in which he concludes that although "the Senate is a problem, . . . it is not a problem that systematically disfavors Democrats, except in the short run"; (ii) Richard Primus's response, in which he "push[es] back" on Mike's suggestion that the Senate might be "justified as part of the package deal that gives us our federal system"; (iii) Dorf's response to Primus, "A Tentative Burkean Defense of Something Like the Senate"; and (iv) Primus's sur-reply.

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