One Person, One Vote? The Electoral College and the Senate

One Person, One Vote? The Electoral College and the Senate

“Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable.”

So wrote Chief Justice of the Supreme Court Earl Warren when ruling Alabama’s unequally populated state legislative districts unconstitutional in Reynolds v. Sims (1964). The decision enshrined in court precedent and Constitutional law the principle of “one person, one vote”. However, this idea, which has become central to voting law, comes into conflict with two fundamental American institutions that are part of the Constitution: the Electoral College and the U.S. Senate. Both give an influence to small states that is out of proportion to their populations, and so by their design break the “one person, one vote” rule. The selection methods for the Senate and the Electoral College are so unequal as to lead on occasion to minority rule, giving them the potential to restrict majority rights to a degree that is antithetical to representative democracy.

The Supreme Court, in explaining the gravity of “one person, one vote,” has invoked nothing less than the very system of American government. The key reasoning comes from Reynolds v. Sims: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” By including voting equality as an integral part of overall voting rights, the Court has singled out the “one person, one vote” principle as one that provides a foundation for all of American democracy, and as a principle that therefore must be defended more avidly than any other.

Yet despite the almost absolute advocacy of “one person, one vote” by the Supreme Court over the past forty years, the Electoral College and the Senate stand out as the two remaining bastions of voter inequality. Article II, Section 1 of the Constitution creates and legalizes the inequity of the Electoral College by requiring a number of electors for each state equal to its total number of senators and representatives. Because of the two additional electors each state receives in representation of its senators, small states are given an advantage over large states in voting power. At its worst, this imbalance in voting influence is quite large; as of 2003, “The typical citizen of Wyoming…[had] on average four times as much influence in determining an electoral vote for president as the typical citizen of California”.[i] Even the population disparities in congressional districts in Georgia that were declared unconstitutional in the landmark case Wesberry v. Sanders (1964), disparities that were much greater than many of those that have been struck down by the Court since, were not as large as those of the Electoral College.

The U.S. Senate’s design is even more unequal than that of the Electoral College (and is in fact the main reason for the inequality in the Electoral College). Each state has an equal number of senators regardless of population; this inevitably leads to large discrepancies in the voting power of individuals in each state. According to the U.S. Census Bureau, California had approximately 14,885,000 registered voters by the 2008 election, while Wyoming had about 270,000. Since both states have two senators, a voter in Wyoming has 55 times more influence over a senatorial election than a voter in California. This is far greater variability than exists in the Electoral College, and dwarfs the inequities that the Supreme Court ruled unconstitutional in Wesberry and similar cases.

The Framers’ worries over minority rights and the rights of small states––the main reasons for the creation of these institutions––have merit, but they’ve led to a method of selection that has essentially created minority rule in the Senate and the presidency. A minority of the voters now elects a majority of U.S. senators and presidential electors. This has led to 18 instances in which the Electoral College has allowed for the election of a president who did not receive a majority of the popular vote.[ii] It has also led to the ability of senators representing a minority of the nation’s population to pass legislation through the Senate over the opposition of senators representing the majority of the nation’s citizens. For example, a study in 1895 found that a majority of states and their senators, representing a minority of the population, passed the Missouri Compromise in 1820 as well as the renewal of the charter for the Bank of the United States in 1832.[iii] While both of these highly important pieces of legislation were passed before the people began directly electing senators, these examples still show that minority rule can and does occur in the Senate.[iv] The denial of “one person, one vote” by both of these institutions is not just a theoretical problem; it has had––and can continue to have––serious practical consequences for the country as a result of overrepresentation of the minority.

[i] George C. Edwards III, Why the Electoral College is Bad for America (New Haven: Yale University Press, 2004), 39.

[ii] These elections were in 1824; 1844; 1848; 1856; 1860; 1876; 1880; 1884; 1888; 1892; 1912; 1916; 1948; 1960; 1968; 1992; 1996, and 2000.

[iii] S.E. Moffett, “Is the Senate Unfairly Constituted?” Political Science Quarterly 10, no. 2 (1895): 251.

[iv] The increased use of the filibuster has made such a scenario less likely, because 60 votes are now needed to pass most legislation. However, it also has the tendency to thwart majority rule by denying up to 59% of the people’s representatives in the Senate the ability to enact their agenda.

One Comment

  1. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere, would be politically relevant and equal in presidential elections. There would no longer be ‘battleground’ states where voters and policies are more important than those of other states.

    When the bill is enacted by states possessing a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.

    The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%,, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

    The bill has passed 31 state legislative chambers in 21 small, medium-small, medium, and large states, including one house in AR, CT, DE, DC, ME, MI, NV, NM, NY, NC, and OR, and both houses in CA, CO, HI, IL, NJ, MD, MA ,RI, VT, and WA. The bill has been enacted by DC, HI, IL, CA, NJ, MD, MA, VT, and WA. These 9 jurisdictions possess 132 electoral votes — 49% of the 270 necessary to bring the law into effect.


  1. Who Voted for That Guy? | Yale Undergraduate Law Review - [...] I mentioned in a previous post, the U.S. Supreme Court has been on a sort of extended voting rights ...

Leave a Comment

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>