There is something profoundly wrong with the United States of America’s system of government.

For proof, briefly take stock of the last ten years in American democracy, in which a combination of factors — the filibuster, the way we draw legislative districts, Senate malapportionment, and the Electoral College — converged to rob American voters of a meaningful ability to choose their own leaders.

The government of the United States no longer derives its powers from the consent of the governed. And by the time voters head to the polls in November to elect a new Congress, America will have existed in this state of profound undemocracy for nearly a decade.

There is a gleam of hope amid this wreckage. The courts appear to be awakening to the problem of gerrymandering — and are beginning to do something about it.


Just this week, Pennsylvania’s state supreme court struck down that state’s gerrymandered congressional maps and ordered new maps to be drawn by for the 2018 elections. A federal court struck down North Carolina’s similarly gerrymandered congressional maps earlier this month. A majority of the Supreme Court appears poised to strike down Wisconsin’s state assembly maps — potentially marking the first time the Supreme Court declared a partisan gerrymander unconstitutional.

Meanwhile, eleven states have signed onto the National Popular Vote Compact, an agreement that seeks to functionally eliminate the Electoral College once a bloc of states that control at least 270 electoral votes have signed onto it. Had this agreement been in effect in 2016, President Hillary Clinton would be in the White House and Justice Merrick Garland would likely be the swing vote on the Supreme Court.

Despite these rays of hope, American democracy still faces considerable obstacles, some of which will be difficult to overcome without a constitutional convention.

For one thing, while gerrymandering accounts for some of the GOP’s unfair advantages in legislative races, it does not account for all of it. Because Democrats tend to cluster together in cities, while Republicans tend to be more spread out over suburbs and rural areas, legislative maps made up of compact districts that do not cut across communities will tend to advantage Republicans. Courts could potentially require more competitive districts to be drawn — districts which combine urban, suburban, and rural voters — but there is no guarantee that they will do so. The recent decision out of Pennsylvania does the opposite.


The National Popular Vote Compact, meanwhile, is untested and relies on an innovative solution to overcome the Electoral College. That means that the Supreme Court has not yet weighed in on its validity. Given the Supreme Court’s increasingly partisan cast, it’s possible that the Republican-dominated Court would game a challenge to this compact, upholding it if a Republican wins the national popular vote and striking it down if a Democrat does.

And then there is in the single most frightening projection facing both large-D Democrats and small-d democrats in the United States. By 2040, according to Dean David Birdsell of the school of public and international affairs at Baruch College, “about 70% of Americans are expected to live in the 15 largest states.” That means that 70 percent of Americans “will have only 30 senators representing them, while the remaining 30% of Americans will have 70 senators representing them.”

If America continues to polarize on geographic lines, with Americans in densely populated areas favoring Democrats and Americans in sparsely populated states preferring Republicans, that means that Republicans may soon enjoy an all-but-guaranteed majority in the United States Senate large enough to ensure that no legislation is enacted and no judge is confirmed under a Democratic president.

The anti-democratic Senate, in other words, is one of the greatest threats to American democracy that the nation will face in most Americans’ lifetimes. And it is the single most difficult one to fix.

Even if there were a supermajority of states willing to amend the Constitution to eliminate Senate malapportionment — and there won’t be, because small states would effectively be voting away their own over-representation — the Constitution forbids amendments that deny states “equal Suffrage in the Senate.” At best, that means that the Senate can only be fixed with two constitutional amendments: one to amend the amendment process itself, and the other to amend the Constitution again to fairly apportion the Senate.

There is a grave danger that American democracy’s lost decade may become a lost century. There is an equally grave danger of a crisis of legitimacy, as the 70 percent of Americans who no longer have a voice in their own government grow tired of being governed by a rural minority. But the biggest problem facing the nation is also one of the most difficult ones to solve.


While the courts are starting to wake up to the decline of American democracy, they’ve allowed this problem to fester for a very long time. And many of the most significant challenges, such as the malapportioned Senate, are beyond the reach of the judiciary.