The U.S. Senate is facing a legitimacy crisis

America's House of Lords is about to decide the future of the Supreme Court.

(Original Caption) 1/17/1956-Atlanta, GA: Airman Second Class Philip Wagner, of New York City, en route to the Warner Robbins Air Force Base Near Macon, GA, pauses to examine the new appendage to the "Colored" Waiting Room sign in Atlanta's Terminal Station, Jan 11. The "Intrastate" portion of the sign may have been added as passive compliance to an ICC order desegregating interstate travel.
(Original Caption) 1/17/1956-Atlanta, GA: Airman Second Class Philip Wagner, of New York City, en route to the Warner Robbins Air Force Base Near Macon, GA, pauses to examine the new appendage to the "Colored" Waiting Room sign in Atlanta's Terminal Station, Jan 11. The "Intrastate" portion of the sign may have been added as passive compliance to an ICC order desegregating interstate travel.

The United States Senate is an immoral, anti-democratic institution where a person from Wyoming counts as over 68 Californians. It is also a demographic time bomb that is likely to plunge the United States into a legitimacy crisis.

According to Baruch College’s David Birdsell, by 2040 “about 70% of Americans are expected to live in the 15 largest states.” That means that 30 percent of the population will elect 70 percent of the senators. It also means that, if small states continue to trend towards Republicans, the GOP may soon have a permanent Senate majority that is large enough to remove the President of the United States from office at will.

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More than two decades before this time bomb detonates, the Senate is one of the most anti-democratic bodies in any modern democracy. As a new essay by the University of New Hampshire’s Michael Ettlinger lays out, the Senate effectively gives extra voting power to white people, gun owners, and rural voters, while treating people of color as only slightly more than 3/4s of a person.

Thanks to Senate malapportionment, in other words, the average white voter counts as nearly 1.7 Latinos. This underrepresentation occurs because almost 2/3s of Latinos live in the five largest states.

Ettlinger’s essay is chock full of data on just how much the Senate skews representation — under the Constitution, each state gets exactly two senators, regardless of whether the state has 100 people or 100 million people. “The average state has a population of 6.5 million,” Ettlinger explains, “making the average American one of 6.5 million constituents for each of their two senators.” Meanwhile, California has nearly 40 million residents and Wyoming has less than 580,000 people.

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Or, to put it another way, a Californian counts as less than 1/5 of the average American. While a person from Wyoming counts as more than 10 people.

This sham democracy has profound implications for the upcoming battle over Supreme Court nominee Brett Kavanaugh. Currently, Republicans hold 51 votes in the Senate, while the Democratic caucus is only 49 senators. Yet the Democratic “minority” represents nearly 40 million more people than the Republican “majority.”

Indeed, this Republican advantage may already be a permanent feature of the Senate. In 2016, when Senate Republicans blocked Chief Judge Merrick Garland’s nomination to the Supreme Court, the 46 Senate Democrats represented 20 million more people than the 54 Republicans. In 2017, when Neil Gorsuch was confirmed to occupy the same Supreme Court seat, the 45 senators who opposed Gorsuch represented more than 25 million more people than the senators who supported him.

Of course, President Trump received nearly 3 million fewer votes than his Democratic opponent in 2016.

If Kavanaugh is confirmed, moreover, he is likely to join a Republican majority on the Supreme Court that gutted a key provision of the Voting Rights Act, that permits laws intended to disenfranchise Democratic voters, and that turns a blind eye to racial voter discrimination.

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A president who wasn’t elected, in other words, is poised to fill a second seat on the Supreme Court, despite the fact that his party represents only a minority of the country in the Senate. One of those seats, moreover, was only available for him to fill because the party that represents only a minority of the nation stole it from a president who was elected twice.

And if Kavanaugh gets to the Supreme Court, he is likely to put an even bigger thumb on America’s electoral scales, making it even harder for a majority of voters to remove the GOP from power.

And all of this is possible because of a system that gives white people more representation than people of color.

Disclosure: Ettlinger was briefly my boss in 2009-2010 while he was a vice president at the Center for American Progress and I was a policy analyst.