In January 2021, Democrats rode into power after a victorious performance in the 2020 elections—taking control of the presidency, the Senate, and the House of Representatives. They had received resounding support from the American people. And the first piece of legislation the new Congress introduced, HR-1, otherwise known as the For the People Act, couldn’t have had a more urgent purpose: “To expand Americans’ access to the ballot box.”
The framework of this legislation included many of the ideas I’ve mentioned in this book, from automatic voter registration to expanded early voting. Designed to be coupled with the John Lewis Voting Rights Advancement Act, it was supported by practically every Democrat in Congress—and polls found that more than seven in ten Americans were on board with it. I was one of them. At a congressional hearing on the bills, I called them “the right remedy at the right time,” arguing that if passed they would go down as “the greatest pieces of civil rights legislation since 1965.”
At the National Constitution Center in Philadelphia, President Biden delivered an equally passionate address: “Guaranteeing the right to vote, ensuring every vote is counted,” he declared, “has always been the most patriotic thing we can do.”
But over the following months, it became clear that the bill (later renamed the Freedom to Vote Act)—a bill supported by a Democratic Congress, a Democratic president, and the American people—wouldn’t become law.
In fact, there was never even an up-or-down vote on it. Ultimately, every single Republican senator, as well as two Democrats—Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—decided they cared more about Senate procedure or winning the next election than about saving our democracy for the next generation.
But beyond any individual representative, the Freedom to Vote Act failed for a simple reason: Our Congress is fundamentally broken.
At the dawn of the 117th United States Congress, Democrats held more seats in the Senate than they had at any point in close to a decade—and yet compared to the share of the vote the party had received in the 2020 elections, they remained woefully underrepresented.
In total, Senate Democrats had control of fifty seats, just as the Republicans did, but they represented 41,549,808 more people than their GOP counterparts. That’s because the Constitution provides the same number of Senate seats to every state, regardless of how many Americans live there, and Democrats tend to live in states that more people call home.
The numbers are striking: The half of the U.S. population that lives in its nine most populous states is represented by only twenty-nine senators—while the other half is represented by seventy-one. Right now, from the perspective of representation, one person in California actually only counts as one-fifth of a person, while someone in North Dakota counts as eight people, for no reason other than where they happen to live. (So much for the idea of one person, one vote.) That means an individual in North Dakota has 40 times more say in what happens in the Senate than someone in California. To put this in concrete terms: Picture a 200-on-5 basketball game. That’s how much more representation North Dakotans have than Californians—and you don’t need to be a basketball player to know it would be hard for five people to score against a team of two hundred, even if they all had jump shots as smooth as mine.
And here’s what makes it worse: None of this is an accident. It’s how our constitution was designed.
On the eve of Independence Day in 1787, months into the Constitutional Convention, our founders did what all procrastinators do: They decided they would answer one of their biggest questions—how to deal with representation—when they came back from break. The problem they faced was that small states were worried their interests would be overlooked by the federal government if representation were dictated by population, while big states were worried that the voices of their citizens would be silenced if seats in Congress were spread equally among all the states. Heading into July 4, every compromise on the table seemed Solomonic.
But during their day off, the founders brainstormed over the sound of fireworks, and when they returned to Philadelphia, they did so with a proposal in hand—a proposal that would go on to shape the future of American democracy. Its parameters were simple: One house of Congress, the House of Representatives, would apportion representation based on population. (Enslaved people, according to the proposal, would count as three-fifths of a person.) The other house, the Senate, meanwhile, would provide the same amount of representation to every state regardless of population.
When this proposal was introduced, it faced fierce backlash, including from James Madison, the primary author of the Constitution, who argued that agreeing to this compromise would mean “departing from justice in order to conciliate the smaller states and the minority of the people” at the expense of “justly gratifying the larger states and the majority of the people.”
His logic was hard to refute—after all, without the principle of “one person, one vote,” the government wouldn’t really reflect the interests of the people—but the smaller states were threatening to walk away from the Constitution altogether if the bigger states didn’t acquiesce. At first, Madison wanted to call them on their bluff, daring New Jersey to “stand on their own legs, and bid defiance to events” and Delaware to “brave the consequences of seeking her fortunes apart from the other States.”
But when the proposal came up for a vote, it passed—by the narrowest margin possible. In the end, while many of the delegates to the convention had objections to this setup, they decided they’d rather have a constitution they didn’t entirely support than no constitution at all, and they weren’t willing to make the hard call and see if the smaller states were, in fact, bluffing.
This deal became known as the Great Compromise—and to its credit, it was responsible for the birth of American democracy.
It remains to be seen whether it will also contribute to its death.
At the time of our nation’s founding, our framers knew the design of the Senate would benefit small states, but even its opponents, like Madison, had no idea just how extreme the disparities in representation would be—because in the eighteenth century, the differences in population among the states weren’t nearly as large as they are today.
Back then, the largest state had less than thirteen times as many people as the smallest. Now that number is closer to seventy. And while Black Americans do have more of a voice today than we did back then—which, needless to say, is a low bar—people of color remain devastatingly underrepresented in the Senate because we tend to live in more populous states.
Indeed, David Leonhardt of The New York Times calculated that white Americans have about 25 percent more say in who ends up in the Senate than Black Americans do—in other words, even now, we don’t quite count as four-fifths of a person, as far as Senate representation is concerned. And Latino and Asian Americans have even less.
Perhaps it’s no surprise, then, that of the roughly two thousand senators elected since America’s founding, only 33 have been Black, Latino, Asian American, or Native American. That’s less than 1.5 percent. And this isn’t only about who gets elected. It’s also about the legislation that ends up passing. After all, in a Senate that looked like the country, do you really think a bill like the DREAM Act, which is backed by more than 70 percent of Americans, wouldn’t have been passed into law?
It’s also worth noting that America is exceptional in having a second chamber of Congress with such warped representation. According to a survey of democracies conducted by the Roosevelt Institute’s Todd Tucker: “Roughly half of the world’s countries, including highly economically successful nations, such as Denmark, Iceland, Israel, New Zealand, Norway, and Sweden, have only one chamber—elected generally on a one-person, one-vote basis. Others—including the UK, Canada, and Germany—have unelected second chambers that are much weaker than the U.S. Senate and perform functions that in relative terms appear mostly advisory. Even those developed countries, such as Australia, that do have powerful second chambers are not marred by as much inequality.”
Tucker goes on to note that one study found “only the second chambers of Brazil, Argentina, and Russia are less evenly represented than the United States,” which I guess is better than if the opposite were true, but still shouldn’t be much consolation.
What’s worse: In America, all these problems are compounded by a procedure in the Senate that isn’t even in our constitution but that has ground what was once known as the world’s greatest deliberative body to a halt: the filibuster.
For most of American history, if you wanted to pass a bill through the Senate, you needed a simple majority of votes. These days, for the lion’s share of legislation, you need a supermajority—and that’s because of the relatively new use of a weapon known as the filibuster, which makes it possible for forty-one senators to block the agenda of the other fifty-nine.
Unlike the overrepresentation of small states in the Senate, which was consecrated by the Great Compromise, the filibuster wasn’t even considered at the Constitutional Convention. In fact, most of our founders despised the idea of a supermajority threshold to pass legislation after seeing how poorly it worked in the era of the Articles of Confederation. And when representatives of slave states brought up the idea to Alexander Hamilton, he immediately shot it down.
“This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory,” Hamilton explained. “The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. Its real operation is to embarrass the administration, to destroy the energy of government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent or corrupt junto, to the regular deliberations and decisions of a respectable majority.” This may sound polite, but it’s Hamiltonian for “get out of here with that nonsense.”
In Federalist No. 58, Madison shared a similar sentiment. If supermajorities were required to pass legislation, he argued, “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would no longer be the majority that would rule; the power would be transferred to the minority.”
This raises a question: How did we even end up with the filibuster if there was such consensus against it at the Constitutional Convention?
The answer is complicated—and it’s detailed far more comprehensively in Adam Jentleson’s brilliant book, Kill Switch, than it could be here. But, simply, the proliferation of the filibuster can be traced to a desire among senators to stop civil rights bills from becoming laws.
Now, there were a few filibusters early in American history—the most prominent of which was organized by John C. Calhoun, the Senate’s most dogmatic defender of slavery—that didn’t explicitly have to do with race. And from time to time over the following decades, a senator would hold the floor until they could stand no more in order to delay votes on legislation, as depicted by Jimmy Stewart in Frank Capra’s Mr. Smith Goes to Washington. But it wasn’t until after the Civil War that this procedure started to be used with regularity to block legislation. And even then, filibusters were deployed almost exclusively to preserve white supremacy. As Jentleson writes: “In the eighty-seven years between the end of Reconstruction and 1964, the only bills that were stopped by filibusters were civil rights bills. On the rare occasion a non–civil rights bill ran into a filibuster, it eventually passed.”
What may be surprising is that across those eighty-seven years, most Americans were ready to support civil rights legislation—as early as 1937, Gallup found that 72 percent of Americans backed federal anti-lynching laws; and as early as 1941, more than six in ten backed anti–poll tax laws—and the majority of senators were on board with these bills, too. It was only because of the filibuster that they were blocked.
It’s hard to even process the tragedy of this fact, of the carnage that could have been stopped—the bodies that wouldn’t have ended up as strange fruit hanging from trees, the voters who wouldn’t have been turned away from the polls—if these bills had been allowed to pass; if we had decided, half a century ago, that human lives were more important than a Senate procedure not even found in the Constitution.
Of course, after the longest filibusters in American history, we did finally manage to pass a civil rights act in 1957 and another one in 1964. But it wasn’t until 2022, eighty-five years after the majority of Americans first supported it, that Congress passed an anti-lynching bill, and still, it only did so after a filibuster in 2020 by a loony and malevolent senator from Kentucky named Rand Paul, who thought we should have spent even more time debating its contents.
In fairness to Senator Paul, by the time he tried to block anti-lynching legislation, filibusters were no longer reserved for special-occasion civil rights bills. They were used to block legislation of all kinds. This was thanks to another senator from Kentucky, Mitch McConnell, who decided the best way to oppose President Obama was to filibuster his agenda into oblivion.
Which, by this point in American history, wasn’t that hard. Gone were the days of Mr. Smith, when you had to stand for hours to filibuster. Now, as Jentleson explains, you don’t even need to “set foot on the floor,” let alone “explain the reasons for blocking the bill.” Indeed, he writes, “the filibuster has become streamlined to the point that it can be launched by lifting a finger, as easily as opening an app.” And in most cases, filibusters are no longer conducted by individual senators but by the entire minority party, so no one is held accountable for delaying the business of the Senate.
For all these reasons, today, filibusters aren’t the exception. They have become the rule. And the consequences have been devastating.
As Ezra Klein explains in an article titled “The Definitive Case for Ending the Filibuster,” “From 1917 to 1970, the Senate took 49 votes to break filibusters. Total. That is fewer than one each year.” In contrast, since McConnell came to power in 2010, “It has taken, on average, more than 80 votes each year to end filibusters.” Each year! That means, these days, there are close to twice as many filibusters every twelve months as there were during the fifty-three years between 1917 and 1970…combined! And that doesn’t even include all the bills Democratic senators never bothered bringing to the floor in the first place, knowing sixty votes was out of reach.
Do you ever feel like politicians spend all their time debating bills—and then never getting anything done? That’s in large part because of the filibuster.
Now, even under Senator McConnell’s reign in the Republican Party, there are a few ways to pass a bill with fifty-one votes. One bill per year, for instance, can be passed with a simple majority through a process called reconciliation—so long as its focus is on budgets. (This is how President Trump enacted his tax cuts and how President Biden is trying to pass his Build Back Better bill.) And judges, including Supreme Court justices, as well as cabinet members, can also be confirmed with fifty-one votes.
But generally speaking, if a bill is going to pass in the Senate, it’s going to need sixty votes—a threshold that, as Hamilton predicted, has allowed our system of government to be hijacked by “an insignificant, turbulent, or corrupt junto.”
If that sounds like an exaggeration, think about this: With the filibuster, forty-one senators from the least populous states, who could plausibly represent less than 15 percent of the total population, could stop a bill supported by the representatives of the other 85 percent.
That’s not democracy.
It’s tyranny of the minority.
And we need to bring an end to it.
So how do we fix the Senate?
Well, ideally, we would address disparities in representation—and allot more senators to states with more people.
The problem? There is no constitutional way to do this. In fact, Article V even has a clause that says: “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” For this reason, the idea of making the Senate more like the House is, unfortunately, out of the question.
We could, however, strip the Senate of many of its powers—as the United Kingdom did with its House of Lords. The issue is that this would require an amendment to the Constitution, which we could not ratify without the support of the very Republicans who benefit from the status quo.
As a result, we are left asking: How do we make the Senate better reflect the will of the people in its current form?
The first step, in my mind, is a simple one: providing representation to the taxpaying Americans who don’t have any at all—specifically, those living in the District of Columbia and Puerto Rico.
Right now, there are more citizens in Washington, D.C., than in Vermont and Wyoming, and Puerto Rico has more citizens than twenty-one states. Yet neither has a single Senate seat. This would be an outrage in any country, but in America, a nation founded on the idea of “no taxation without representation,” it is heresy. And we need to address it. Because Washingtonians and Puerto Ricans are as deserving of a voice in our government as any other Americans.
The best part? You don’t even need an amendment to add states to the union. You just need to pass a bill. Which Democrats could do today, without needing a vote from a single Republican—just as they could have passed the Freedom to Vote Act—if only we embraced the second step we must take to save the Senate: eliminating the filibuster.
With apologies to the Democrats who are still on the fence, this isn’t a hard call:
Door number one is preserving the filibuster.
Door number two is saving our democracy before it’s too late.
Politics is full of difficult decisions. We should be grateful that this isn’t one of them.
But if, for some reason, senators remain unwilling to budge on eliminating the filibuster entirely, at the very least, they should create a carve-out for bills that strengthen our democracy, a step President Biden has endorsed taking. After all, with reconciliation, Democratic senators have already agreed to an exception for budget reasons. Surely they can understand why voting rights are at least as important. As Senator Raphael Warnock of Georgia said in remarks from the floor, “The judgment of history is upon us. Future generations will ask, ‘When the democracy was in a 911 state of emergency, what did you do to put the fire out? Did we rise to the moment or did we hide behind procedural rules?’ ” At this point, we have not risen to the moment, with senators like Manchin and Sinema continuing to value the filibuster more than voting rights—not to mention the Republicans actively attacking our democracy. But now is not the time to give up the fight. Because while their rhetoric might sound highfalutin, the case for a supermajority threshold doesn’t stand up to scrutiny.
One of the most common cases filibuster defenders like Senators Manchin and Sinema make is that one day, Republicans will have control of the Senate—and we will want the ability to block their legislation.
This argument has two key weaknesses.
The first is practical: Even without the filibuster, America already has more checks and balances than almost any other democracy, so it’s not as though a Republican Senate could ram through priorities on its own. Citing a study that compared the American political system to that of twenty-two other peer nations, Klein explains:
The United States is alone among advanced democracies in how difficult it is to get anything done. Legislation can be blocked by the House, the Senate, or the president, all of whom face different electorates, on different cycles. It can be overturned by the Supreme Court, where nine robed judges are protected by lifetime appointment. Constitutional amendments are uniquely difficult, and can be blocked by the states. To attain a governing majority across this many conflicting institutions requires parties to win multiple elections, over multiple election cycles, by appealing to multiple kinds of electorates. All that was true before the advent of the 60-vote supermajority requirement, and it will be true if that requirement is abolished.
This brings me to the second flaw in the argument against the filibuster—a moral one: If Democrats eliminate the filibuster; expand access to the franchise; provide statehood to Washington, D.C., and Puerto Rico; and still manage to lose control of the presidency and Congress to Republicans, then that is at least in part a reflection of the will of the people—and Republicans should be allowed to enact their agenda, without the added burden of needing a supermajority in the Senate.
Because that’s how democracy works.
And if voters don’t like what the party in power does, then they can show up to the polls, vote them out, and start passing legislation with a Senate majority of their own.
It’s 2018—and I’m marching down Laurel Street, the avenue that divides North Carolina A&T, the largest of America’s historically Black colleges and universities (HBCUs), into two congressional districts. Standing next to me is a student named Love Caesar, who is telling me about a classmate who had to change her voter registration because she moved from a dorm in the state’s Sixth Congressional District to one in the Thirteenth.
Every day, she explains, her friend crosses back and forth between the two districts, traveling from her classroom to her library, her dorm room to her dining hall.
This doesn’t make any sense—until you realize it was the result of a Republican gerrymander, designed to limit the power of Black voters in North Carolina. “The line was drawn with surgical precision,” Caesar explains, to “dilute the vote.”
She was exactly right: The map drawn by the North Carolina legislature was a prime example of “cracking,” the process through which gerrymanderers water down the impact of any one community’s vote by splitting its population between districts. In the case of A&T, this all but assured that Republicans would come out on top in both districts—by limiting the number of Black Americans registered to vote in either.
And A&T wasn’t the only campus they divided. East Carolina University and UNC Asheville were split in half, too.
This is because North Carolina is one of the thirty-three states where maps are drawn by partisan legislatures instead of by independent commissions, which means the process ends up being run by hacks like Mark McDaniel, a North Carolina state senator who once admitted that he sees himself as being “in the business of rigging elections.”
According to Caesar, the roughly decade-old division of her campus was creating “a lot of voter apathy” among students who knew about it, because they would say to themselves, “If my vote counts half, why should I vote at all?” And there were other students, she explains, who didn’t even know this division had taken place. So she and a few of her classmates decided to try to raise awareness.
“The first thing we did was we got some chalk and walked around campus at night and wrote chalk messages on the ground,” she remembers. These messages forced anyone who walked by to contemplate questions like “What is gerrymandering?” and “Do you know what district you live in?”
“There was a lot of shock,” Caesar recalls, when her classmates realized there was an “intentional attack on their voting rights.” But, she explains, “Once people knew something about it, they wanted to do something about it.” Students all across A&T came together to form a movement opposing the gerrymander of their campus—a movement that inspired me to visit.
I was there in my capacity as founder of the National Democratic Redistricting Committee (NDRC), an organization fighting for fairer maps across the country, including in North Carolina, where we had filed a challenge to the A&T gerrymander. And the year after my visit, we won, with a court declaring the lines that had been drawn unconstitutional.
This meant that in 2020, for the first time in about a decade, A&T students voted together in one district, turning out in record numbers. That was a gratifying victory, credited in part to our case, yes, but also to committed students like Love Caesar, who made the world pay attention to what was happening in their community. And Caesar says she’s only just getting started, because “we know we’re going to have to fight just as hard to make sure that we keep going forward and don’t take any more steps back.”
Powered by grassroots organizers, NDRC has also succeeded in challenging maps in Virginia. We’ve helped reform the redistricting process in Colorado, Michigan, Montana, Ohio, and Utah. And we’ve supported the candidacies of politicians devoted to ending gerrymandering across the country—at all levels of government.
That’s a big deal, and in 2021, we saw that work pay off during the redistricting process when some gerrymandering, much of which we are challenging in court, took place, but more maps were far more fair due to the reforms we backed.
The fact remains, though, that too many states still have gerrymandered districts. And as a result, the House of Representatives—the body of Congress even our founders hoped would represent people from all districts equally—doesn’t uphold the principle of one person, one vote either.
As I describe in chapter 5, Republicans won a historic landslide victory in 2010, taking control of state legislatures across the country. And in 2011, they used that power to launch what professors from Princeton deemed to be the most egregious partisan gerrymandering of the past half century.
In 2012, after that gerrymandering, Democrats won 1.4 million more votes than Republicans in races for the U.S. House of Representatives, but Republicans engineered a thirty-three-seat majority. And according to a study by the Center for American Progress, gerrymandering brought Republicans an average of nineteen additional seats in the House over the following two election cycles. Even in 2018, when Democrats won a historic wave election, gerrymandering was estimated to have cost the party sixteen additional seats and seven additional state legislative chambers. And in 2020, Democrats held on to their majority in the House by only a few seats, even though they won the popular vote by about five million votes.
This has led to a crisis of representation—because the House of Representatives no longer reflects the will of the people. And just as important, it has led to a crisis of polarization.
Let me explain.
“Cracking” and “packing,” the primary tactics of gerrymandering, both lead to blowout general elections—which means that instead of worrying about losing to the other party, incumbents are often more afraid of facing a challenge from a member of their own party, and as a result, they take on more and more extreme positions that are popular with their bases.
This is how state legislatures end up passing heartbeat bills, which ban abortion in the first trimester, even though the majority of residents, even in the most conservative states, are opposed to them. And it’s how you end up with a Congress full of representatives willing to vote against policies like universal background checks, which are supported by nine in ten Americans, purely as a demonstration of partisan and gun-lobbied loyalty.
Thankfully, unlike the Senate, whose undemocratic nature is written into the Constitution, the House is relatively easy to fix—and the American people are on board with fixing it. In fact, a poll found that three out of every four voters support the idea of ending partisan redistricting, “even if it means their preferred political party would win fewer seats.”
What would this look like?
First, we would ban partisan gerrymandering, as the voting bills in Congress proposed—not to mention racial gerrymandering, which has already been declared unconstitutional. As part of this effort, we would also need to establish a standard by which courts could determine if a map fails either of these tests.
One way to better ensure a fair redistricting process is by putting well-constructed independent redistricting commissions in charge, which is how it’s already done in some states. These commissions are nonpartisan. They draw maps based on agreed-upon principles—optimizing for things like competitiveness and compactness rather than electoral domination. And they are transparent, replacing backroom deals and secret handshakes with public hearings and town halls.
In some cases, these commissions have been overrun by partisan actors, as we saw in Virginia in 2021. But if they are designed well, as was the case in Michigan, they can lead to a much better process. And after our next census in 2030, we’d better encourage the rest of the country to get on board with this effort. Because no matter what political party you support or what policies you advocate, I promise all of us will be better off if voters once again pick their representatives instead of politicians picking their voters.
After all, in recent decades, Democratic and Republican politicians alike have won races as a result of gerrymandering. But through it all, the American people have been the losers, as politicians have governed like they only have to be responsive to the interests of the most partisan voters in their districts, not the country at large.
That has to change.
Because the House of Representatives and our state legislatures should represent all of us.
The legislative branch is one of America’s most remarkable inventions, up there with the lightbulb, the telephone, and the chocolate chip cookie. It’s the institution that from the beginning has prevented our democracy from becoming a monarchy—ensuring our government could one day be a reflection of the people. And over the course of American history, one of the most genius aspects of Congress has been its ability to evolve with the times as we continue to perfect our union.
Originally, for instance, senators weren’t even elected by citizens. They were elected by state legislatures. For America to become a democracy, for Congress to hold legitimacy in the eyes of the people, that had to evolve. And so, it did.
This, I believe, is once again the question before us: Can the legislative branch transform with the times—and become reflective of the will of the people?
We’d better make sure the answer to that question is yes—because nothing less than our democracy is at stake.