Illustration by Sarah Angèle Wilson
This article appears in the August 2022 issue of The American Prospect magazine. Subscribe here.
At first glance, California state Sen. Richard Richards might have seemed an exceptionally powerful lawmaker in 1960. The just-completed census revealed that Los Angeles County, home to just over six million people, constituted a whopping 38.4 percent of the entire state’s population. So Richards, as the county’s sole senator, could speak for more than one-third of the state’s residents.
At second glance, however, Richards was no more than a legislative pip-squeak—and, more distressingly, so was Los Angeles. California, like virtually every other state, had shaped its upper house in the image of the U.S. Senate, apportioning its seats not by population but by jurisdiction. Every county was entitled to no more than one senator. As California’s senate had just 40 seats, but the state itself had 58 counties, the smallest counties had to buddy up to get the total down to 40, but that still meant that a senator representing a district with roughly 6,000 residents could, on any given measure, cast the same number of votes (one) as Richards, who represented six million.
That disturbed the U.S. Supreme Court, then under the leadership of Chief Justice Earl Warren and in an uncommonly egalitarian frame of mind. In Baker v. Carr (1962) and Reynolds v. Sims (1964), the Court held that equality under the law meant that state legislatures had to be governed by districts of equal population. No longer could senators from two all-but-unpopulated Sierra Nevada districts outvote the one senator from teeming, gridlocked L.A. In short order, California reshaped its Senate so that roughly one-third of its members came from L.A. County, and all the other states (except Nebraska, which already had a unicameral legislature) did likewise.
The Court’s one-person-one-vote doctrine became the law of the land. And in the process, state senates became entirely redundant.
Just how redundant becomes apparent from a survey of the partisan makeup of each of the legislative bodies in the 49 states with both a house and a senate. In 47 of those states, one party controls both houses, often by very similar margins. (In California, for instance, three-fourths of the members of each house are Democrats; one-fourth, accordingly, are Republicans.) In only two states—Minnesota and Virginia—does one party control one house and the other party control the other, but in both states, the margins are minimal, and could easily move to one-party control at the next election.
Since the 1960s, as the identities of the two parties have grown radically dissimilar, fewer and fewer voters split their tickets. And as the electorate has become more polarized, that polarization has taken on a spatial dimension, with cities becoming more Democratic, rural areas more Republican, and suburbs experiencing more polarized voting as well. As senate districts in some states are overlaid atop assembly districts, the partisan makeup of both are largely the same.
Nor is there an appreciable difference in the job functions of the legislative chambers. For example, the most significant differences between the U.S. House and Senate are that the Senate ratifies treaties with other nations and confirms Supreme Court and other federal judicial nominees. But treaty ratification isn’t an option for state senates, and for most of them, neither is judicial confirmation. In most states, judges are elected. Only in Maine and New Jersey does the Senate confirm supreme court selections nominated by the governor, and only New Jersey gives senators sole confirmation powers for other judicial nominees.
The fundamental flaw in American democracy is the absence of any guarantee for majority rule.
Many state senates do confirm cabinet appointments not elected by voters. But in general, both state legislative chambers vote on the same matters and represent the same areas with roughly the same percentages. The nation’s hyper-partisan legislative landscape today makes state senate redundancy even more obvious than it was when the Court issued its Reynolds decision 58 years ago.
And yet the number of states with two legislative houses is the same as it was in 1964: 49.
This is not at all surprising. Legislators, like most people, are disinclined to vote themselves out of a job. Republicans (and Democrats of a Scrooge-like disposition) may bemoan government profligacy at every turn, but when did you ever hear them call for consolidating legislatures into a single body?
Besides, having two separate houses has proven to be an effective way of shielding the business of lawmaking, or law-derailing, from the public’s eye. Key provisions can morph into something quite different or disappear altogether in transit between the houses, or in conference committees where versions are reconciled and where powerful interests can make behind-closed-doors power plays. Such things can and do happen in unicameral legislatures, too, of course, but the gratuitous complexity that comes with having two houses does the cause of transparency no favors.
Not surprisingly, the transformation of Nebraska’s legislature to unicameral came at the hands of voters, in the election of 1934. The change would likely never have been made but for the nearly dozen-year campaign for unicameralism waged by the state’s remarkable U.S. senator, George Norris, whose other notable achievements include federal legislation outlawing court injunctions against strikes (the Norris-LaGuardia Act) and, as a passionate public power advocate, the creation of the Tennessee Valley Authority, which he championed for years before Franklin Roosevelt became president and pushed Congress to enact it.
Norris’s case for unicameralism was similarly progressive. Bicameralism, he argued, was an 18th-century transposition to American soil of the British Parliament. Like the House of Lords, the U.S. Senate—whose members were chosen by state legislatures until the popular vote requirement of the 17th Amendment, enacted in 1913—was initially devised to enable a quasi-aristocracy to tamp down the popular sentiments of the lower house’s hoi polloi.
A body so conceived, Norris contended, ran against the American grain, particularly for state legislatures, whose creation had required no equivalent to the compromise between small and large states that created a bicameral Congress at the Constitutional Convention of 1787. “The constitutions of our various states,” Norris declared, “are built upon the idea that there is but one class. If this be true, there is no sense or reason in having the same thing done twice, especially if it is to be done by two bodies of men elected in the same way and having the same jurisdiction.” Which, of course, became even more the case after the Warren Court’s rulings.
It’s hard to quantify whether Nebraska’s unicameral legislature, overlaid as it is by nonpartisanship, is uniquely effective. But for what it’s worth, by one measure constructed by Politico, it did supply the best U.S. response to the COVID pandemic. And its model of deliberative engagement, with no partisan caucuses and with all lawmakers able to participate at any stage of a bill’s passage, is substantially more democratic than most legislatures’.
Another positive for a unicameral legislature is that you can make districts more compact and closer to the people. In California, for example, eliminating the 40 state senators could be paired with increasing the state assembly’s size from 80 to 120, cutting district populations by one-third while not adding a single legislator.
The statehouse in Lincoln, Nebraska, America’s only unicameral state legislature
All that said, the stupefying superfluousness of state senates is far from the worst problem that the form of our legislatures poses to our nation. The greater danger to the core democratic principle of majority rule involves gerrymandering in single-member districts.
Note, please, that Pennsylvania voted for the Democrat in the last presidential election, has a Democratic governor and a Democratic senator, but also a heavily Republican legislature, due to the gerrymandered districts those Republicans created. Michigan also voted for Biden, has a Democratic governor and two Democratic senators, and a gerrymandered Republican legislature. In these and other states, even when a majority of voters cast their ballots for Democrats, Republicans can control the legislature and, through district line-drawing, the congressional delegation as well.
Gerrymandering is only part of the story here. Over the past year, even several states with officially nonpartisan redistricting commissions have seen partisan interests on those commissions or in the courts unveil blatantly partisan maps, a reflection of just how pervasive partisanship has become in every sphere of public life.
Even without gerrymandering, though, the presence of overwhelming numbers of Democrats in urban districts means that Democrats can use those numbers to amass statewide majorities, while more broadly dispersed Republicans can claim a larger number of legislative and congressional districts. That is why, as Jonathan Rodden wrote in his 2019 book Why Cities Lose, “Underrepresentation of the urban left in national legislatures and governments has been a basic feature of all industrialized countries that use winner-take-all district [elections].”
A clean solution to this problem would be to simply eliminate the whole idea of districts, and have the composition of state legislative bodies determined by state voters as a whole through proportional-representation elections. That’s how parliaments in many democratic nations are constituted. But after more than 200 years of Americans being represented by their local representative, it’s unlikely to the point of impossibility that voters would warm to this idea.
Other nations have managed to square this circle by combining district representation with the proportional kind. Both Germany and New Zealand are governed by “mixed-member” parliaments, some of whom are elected in district elections and some of whom are elected by proportional representation. Voters in those nations vote twice: once for their district representative and once for their preferred party, each of which has a list of parliamentary candidates. If 55 percent of the nation’s voters vote for party X, then the candidates from party X’s list would constitute 55 percent of the parliament’s at-large members, with the same voting rights as the district representatives.
It used to be commonplace American folk wisdom that voters usually “vote for the person, not the party.” But if ever there’s been a time when party definition was so sharp that that was no longer true, that time is now. And this mix of district and proportional representation is not as foreign a concept as you might think: Ten states use some form of multimember districts for at least a portion of their state legislatures. And this November, a form of proportional representation will be put to a vote in Portland, Oregon. If the measure passes, the city council will expand to 12 members, consisting of three winners from each of the four new geographic districts.
In general, significantly changing the legislative system would have to either come from the electorate via an initiative, or begin with a Democratic legislature and then be put before the voters as a referendum. (New Zealand adopted its system only after voters approved it in 1996.) Only 26 states have an initiative or referendum process, but in a state like Michigan, which does have that option and where Democrats usually win statewide but are locked into minority status in the legislature, the party should begin the work of persuading voters to move to a hybrid mode of representation.
The need for such a change cannot be overstated. It becomes clearer with each passing day that the fundamental flaw in American democracy is the absence of any guarantee for majority rule. George W. Bush and Donald Trump were both elected president while losing the popular vote. Five of the nation’s Supreme Court justices were nominated by those minoritarian presidents and confirmed by an unrepresentative Senate. Today’s Republican Party is doing all it can to bolster the minority rule that enables it to govern.
By themselves, states can’t remake the structure of the federal government. But by moving to unicameral legislatures and hybrid representation, they can ensure majority rule at the state level, further better representation at the U.S. House level, and perhaps even lay the groundwork for bringing equal representation to the federal level, as the Warren Court did to the states.
Senates are redundant. Legislatures based solely on single-member districts are anti-majoritarian. Let’s scrap them both.
