Whether a State May Elect Its United States Senators

From Single-Member Districts Rather Than At-Large

U nder the Seventeenth Amendment to the Constitution, a State m ay not constitutionally elect its

U nited States Senators from two single-m em ber districts rather than at large.

August 20, 1992

M e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l

C iv il R ig h t s D iv is io n

The National Association for the Advancement of Colored People, Inc., 

(“NAACP”) has filed suit challenging the method by which Mississippi selects its Senators. The NAACP claims that Mississippi has violated the 

Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1971-1974e, and the 

14th and 15th Amendments to the Constitution, by electing its Senators atlarge, rather than from two single-member districts. You have asked for our 

views on the issue of whether a State constitutionally may elect its Senators 

from single-member districts, rather than at-large. We conclude that it may not.

The analysis begins with the text of the Seventeenth Amendment, which 

provides that “[t]he Senate o f the United States shall be composed of two 

Senators from each State, elected by the people thereof.” U.S. Const, amend. 

17. Because States of the Union are distinct, unitary political entities, in 

order for a Senator to be from a State he or she must be from the entire 

State, not some part of it. Similarly, because of the nature of the States, 

election by “the people” of the State implies election by the whole people of 

the State, not some smaller set of citizens. The election of Senators from 

smaller districts instead of the entire State would result in Senators elected 

by only a part of the people of a State. Such a plan would be inconsistent 

with the Constitution’s text.1

1 This conclusion is fully consistent with the Constitution’s provision concerning the election of Representatives, which also refers to election by the people, stating that the “House of Representatives shall be 

composed of Members chosen every second Year by the People o f the several Slates." U.S. Const, art. I, 

§ 2, cl. I (emphasis added). This formulation was adopted by the Constitution’s original framers to make 

clear that the lower house of Congress was to be elected proportionally by popular vote. See The Federalist N o. 39, at 254-55 (Jam es M adison) (Jacob E. Cooke ed. 1961). Representatives, therefore, 

represent people. A lthough it requires popular election. Article I, Section 2 for this reason need

Continued

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The history of the Seventeenth Amendment confirms that Senators are to 

be selected by the people of the whole State. The report accompanying S.J. 

Res. 134, which eventually became the Seventeenth Amendment, explained 

that the character of the Senate as representative of the States would be 

enhanced by popular election because, henceforth, a Senator would be selected by all of the people of a State, instead of just the members of the 

State’s legislature: “It might change his relations to certain interests and 

certain forces within the State, but if we are to suppose that a State consists 

of all the people and of all the interests, will he not still be its representative 

in every sense when his election comes from all the people o f his State!"

Election o f Senators by Popular Vote, S. Rep. No. 961, 61st Cong., 3d Sess. 

4-5 (1911) (emphasis added) (“Senate Report”).

The Constitution elsewhere confirms that the role of Senators is to represent States considered as integral political units. As Madison explained, the 

bicameral structure of Congress reflects a decision to have one body in 

which the people are directly represented and one in which they are represented in their capacity as state citizens — i.e., one in which the States are 

represented. “The Senate . . . will derive its powers from the States, as 

political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing [Confederation] 

Congress.” Federalist No. 39, supra note 1, at 255. His remarks were later 

echoed by Justice Joseph Story, who contrasted the Senate with the House of 

Representatives and wrote that: “[E]ach state in its political capacity is 

represented [in the Senate] upon a footing of perfect equality, like a congress of sovereigns, or ambassadors, or like an assembly of peers.” Joseph 

Story, Commentaries on the Constitution o f the United States § 352, at 252 

(Carolina Academic Pr. ed. 1987).2 Accordingly, Article I, Section 3 provided that: “The Senate of the United States shall be composed of two 

Senators from each State, chosen by the Legislature thereof ...” U.S. 

Const, art. I, § 3, cl.' 1.

Article V of the Constitution also recognizes the role of Senators as representatives of their respective States. In creating a process of constitutional 

amendment. Article V both confirms that the Senate is a body representing 

States, and assures that it will continue as such. The provision describes the 

structure of the Senate as one of suffrage for the States, providing “that no 

State, without its Consent, shall be deprived of its equal Suffrage in the 

Senate.” U.S. Const, art. V.

The Seventeenth Amendment did not change the fundamental character

‘(....continued)

not and does not address the question of how the people are to choose Representatives, whether by districts, at-large, or otherwise. Senators, by contrast, represent States, and are elected, not by the people of 

the several States — that is, the people at large — but by the people of the States — that is, the people of 

each State in their separate capacities. It is therefore not surprising that the requirements of the Seventeenth Amendment for apportionment are different from those of Article I.

2See also Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 551-53 (1985) (citations omitted) 

(States as such are represented in the Senate both to reflect and to protect their remaining sovereignty).

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of the Senate. Indeed, as noted above, the framers of the Seventeenth Amendment maintained that the change they were proposing would make the Senate 

more representative of the States:

It was undoubtedly in the minds of the fathers that the Senators should in a peculiar sense represent the State something 

as an ambassador. That idea naturally arose out of the fact 

that the States had been separate and independent sovereignties, and regarded each other to a great extent as wholly 

independent States. . . . This amendment does not propose in 

any way to interfere with the fundamental law save and except the method or mode of choosing the Senators. It will 

still be the duty of the Senator to see that the States respectively are not denied any of the rights to which they are justly 

entitled under our system of government. It will still be the 

duty and the pride of the Senator to see that the Commonw ealth which he represents in its entirety has that full 

representation to which it is entitled under the fundamental 

law. The change will consist in bringing him more thoroughly 

in touch with all the interests and all that makes up a great 

State, and that is certainly desired.

Senate Report, at 4-5 (emphasis added).

If Senators were elected from districts smaller than States, and not by the 

whole people of each State, they would represent and be accountable only to 

parts of States, not to the States as the Constitution requires. Indeed, the 

Senate would cease to be a body representing the States, and would become 

an assembly, like the House of Representatives, representing individuals living 

in certain areas of a State. The Constitution would no longer be the one described in Article V, in which the States themselves enjoy suffrage in the Senate.

Finally, the election of Senators from districts would deprive the people 

of the States of their constitutional right to elect both of their State’s Senators. The Supreme Court has recognized that the Constitution’s popular 

election provisions vest constitutionally protected rights in the people. United

States v. Classic, 313 U.S. 299, 314 (1941) (Article I, Section 2 creates a 

right in the people to choose their representatives).3

3 Classic involved a federal prosecution under sections 19 and 20 of the federal criminal code (now 

codified at 18 U.S.C. §§ 241, 242), forbidding conspiracies to interfere with the enjoyment of rights 

secured by the Constitution, and the deprivation of such rights under color of state law. The defendants 

were indicted for willfully altering and falsifying ballots voters had cast in a Louisiana Democratic 

Party primary. In resolving the case, the Court was faced with the issue of "whether the right of qualified voters to vote in the Louisiana primary and to have their ballots counted is a right 'secured by the 

C onstitution.'” Id. at 307. The Court concluded that it was.

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The Seventeenth Amendment, then, grants to each State’s qualified voters 

a constitutional right to participate in senatorial elections. At-large election 

of Senators is mandatory if that individual right is understood as either the 

right to participate in all senatorial elections or the right to vote for both 

Senators. It is difficult to see how it could be understood otherwise. The 

Seventeenth Amendment, which provides that each State shall have two Senators and that the people shall elect them, nowhere suggests that there is any 

difference between the two Senators, nor that the right of the people it 

creates attaches to anything other than the two Senators given to each State. 

In the absence of any indication to the contrary, the only conclusion is that 

there is no disjunction between the individual right established by the amendment and the two senatorial offices the amendment refers to. It follows that 

if Senators were elected from districts smaller than States, the people of the 

State would be deprived of their constitutionally protected right to vote for 

each of their State’s Senators. This can be accomplished, if it is to be 

accomplished, only by an amendment to the Constitution.

TIMOTHY E. FLANIGAN 

Assistant Attorney General

Office o f Legal Counsel

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