Once upon a time, nobody lived in Nevada.
In 1860, the year Abraham Lincoln was elected president, Nevada was a desert wasteland with fewer than 7,000 residents. Indeed, the Silver State didn’t even exist on the day of Lincoln’s election. Two days before the lame-duck President James Buchanan left office, he signed legislation carving off part of Utah Territory, which stretched across most of modern-day Nevada, about a third of Colorado and some of Wyoming, to form part of what we now know as Nevada. Congress would soon pass two more bills expanding Nevada at Utah’s expense.
This largely forgotten act of line-drawing enabled one of the most consequential gerrymanders in American history. Because the virtually unpopulated Nevada became its own territory, Republicans could admit it as a state just four years later. That gave the Party of Lincoln two extra seats in the Senate — helping prevent Democrats from simultaneously controlling the White House and both houses of Congress until 1893.
Nor was this selective admission of the Republican state of Nevada an isolated case. Among other things, the reason why there are two Dakotas — despite the fact that both states are so underpopulated that they each only rate a single member of the House of Representatives to this day — is because Republicans won the 1888 election and decided to celebrate by giving themselves four senators instead of just two.
There’s a lesson here for modern-day Democrats. The history of the American statehood process is the history of political factions selectively admitting new states in order to bolster their own fortunes and harm those of their opponents. The American West, with its wasteland of states with two senators and approximately zero residents, was shaped by this brand of constitutional hardball. And if Democrats do not embrace it today, they risk being doomed to the political abyss.
By 2040, according to a University of Virginia analysis of Census population projections, about half of the country will live in just eight states — which means 16 senators for one half of America and 84 for the other half. Meanwhile, according to Stanford political scientist Jonathan Rodden, partisanship closely correlates with population density — “as you go from the center of cities out through the suburbs and into rural areas, you traverse in a linear fashion from Democratic to Republican places.”
So America is fast approaching a tipping point where one party will enjoy a permanent supermajority in the United States Senate — and with it, permanent control over the federal judiciary. Democrats have no choice. They must embrace the Party of Lincoln’s tactic of selectively admitting new states, or they must perish.
Two senators, no residents
Had the Democrat Buchanan understood what chopping up Utah would mean for the nation’s future, he probably would have vetoed the bill creating Nevada Territory. At the time, Mormons were overwhelmingly Democratic. Yet the carving up of Utah Territory isolated most of these Mormons and allowed Republicans to dominate Nevada and Colorado. That, in turn, allowed Republicans, who controlled Congress for much of this era, to admit Nevada and Colorado as Republican states in fairly short order. Utah would remain a territory until 1896.
Image shared via Creative Commons license.
It’s hard to blame President Lincoln for signing the 1864 legislation turning the barren Nevada desert into a state. America, after all, was caught in a civil war. If unionists lost their majority in the Senate, the new majority could force a surrender. War often requires leaders to take actions that would be unconscionable during peacetime. Inter arma enim silent lēgēs.
But there’s no question that Lincoln’s decision to sign the Nevada legislation was a gross departure from ordinary practice. As Nolan McCarty, Keith Poole, and Howard Rosenthal explain in a 1999 paper laying out much of the history of statehood admissions in the United States, Congress typically would not consider a territory’s petition for full statehood until that territory reached a certain population threshold — “the norm for eligibility was sufficient population to reach the current quota for a House seat.”
In 1864, when Nevada became a state, that quota was about 125,000 residents. Nevada, with a population of less than 7,000 in the most recent census, did not even come close to crossing that threshold. Indeed, as Charles Stewart and Barry Weingast note in a seminal paper laying out the history of statehood admissions in the later half of the 1800s, “had Nevada waited until the standard population criterion had been met . . . it would not have entered the Union until 1970.”
Indeed, it’s difficult to justify admitting any western territory during this period in American history. “In the 1860 census only 1 percent of the nation’s population lived in the territories,” Steward and Weingast note. And yet Nevada was the first of several Republican territories admitted to the Union largely to bolster Republican electoral prospects.
Republicans also tried to admit Colorado around the same time that Nevada became a state, although this attempt was thwarted because the would-be state’s residents rejected a proposed state constitution. The GOP tried again shortly after Lincoln’s death, only to have this effort thwarted by President Andrew Johnson’s veto. They finally succeeded in 1876, after Republican President Ulysses Grant signed the Colorado bill into law.
Yet Colorado never met the traditional criteria for statehood during this entire saga. According to the 1870 Census, Colorado Territory had fewer than 40,000 residents.
These shenanigans made it possible for the GOP to engage in more of the same down the road. In 1888, for example, Congress considered omnibus legislation admitting several western territories as states. Though both parties agreed that new states should be admitted, they disagreed on whether the Democratic territory of New Mexico should be admitted or not. Republicans also wanted to split the GOP-friendly Dakota territory into North and South Dakota, thus giving them an additional two seats in the Senate.
Ultimately, Republicans got their way because they defeated Democratic President Grover Cleveland in the 1888 election, and took back the House of Representatives to boot. With no chance of blocking the GOP’s preferred outcome after President-elect Benjamin Harrison took office, Democrats gave up the fight. There are still two Dakotas. New Mexico did not become a state until 1912.
Yet it’s worth noting that, in 1888, while the omnibus statehood admissions bill was under debate, Democrats controlled both the House and the White House, and Republicans only enjoyed a two-seat majority in the Senate. Thus, if Nevada and Colorado statehood had not given Republicans four extra seats in the Senate (Nevada sent a single Democrat to the Senate from 1881-1887, but otherwise reliably chose Republican senators until the twentieth century), Democrats would have controlled Congress and the White House in 1888 and would have been able to admit Dakota and New Mexico on their own terms.
Where to go from here
The Party of Lincoln was able to manipulate statehood admissions with relative ease, largely because the United States still had so much territory that remained unrepresented in Congress. Today, such territory is scarce. Beyond the District of Columbia, which should be admitted as at least one state as soon as Democrats take control of Congress and the White House, the rest of the continental United States is already part of one state or another.
Offshore territories such as Puerto Rico offer one option, but these territories have their own politics and often have their identities distinct from the United States. While a plurality (48 percent) of Puerto Ricans told pollsters in 2018 that they would prefer that their island become a state, large minorities opposed this option. In a 2012 referendum, only 45 percent of Puerto Rican voters chose statehood (though many voters left the statehood question blank).
It’s far from clear, in other words, which American territories — if any — would accept statehood if it were offered.
There is another option — one that also stretches back to the Lincoln administration. In 1861, shortly after the Civil War began, 35 Virginia counties rebelled against the rebellion. The unionist counties met in Wheeling, declared itself to be the lawful government of Virginia, and eventually were admitted back into the Union as the state of West Virginia.
As a constitutional matter, this maneuver was dubious. Though the Constitution permits new states to be carved out of old states, it may only happen with “the consent of the legislatures of the states concerned as well as of the Congress.” President Lincoln recognized the Wheeling loyalists as the legitimate government of Virginia — and Congress acquiesced by seating two senators appointed by the Wheeling government as the legitimate senators from the Commonwealth of Virginia.
The Wheeling government then acted as the Virginia legislature, passing a law acquiescing in its own divorce from the traitorous parts of Virginia. And so West Virginia was born.
Modern-day Democrats would not need to play similar games to split large blue states like New York and California into multiple new states — assuming, of course, that their state legislatures are willing to play along. The legislation creating ten Californias or eight New Yorks, moreover, could potentially be paired with an interstate compact that places at least some of the state government’s core functions in a unified California or unified New York government.
This solution will be perceived as radical, and it will undoubtedly trigger massive resistance from Republicans in Congress and on the Supreme Court. But if the alternative is allowing half the country to control 84 percent of the Senate, splitting blue states is a more democratic choice than doing nothing.
It’s also painfully clear that few Democrats have wrapped their head around the coming Senate malapportionment crisis.
Sen. Mitch McConnell (R-KY) became Minority Leader in 2007. It took six years before Democrats realized that the only way to confront his obstructionism was to change the Senate’s rules so that the minority caucus could no longer block President Obama’s nominees. Fundamentally altering the makeup of the Senate is a much more consequential change than a new Senate rule. It is likely that elected Democrats will take at least as long before they wake up to the threat Senate malapportionment presents to American democracy.
But they are also running out of time. The next time Democrats win a majority in the Senate — if it happens at all — could very well be the last. Even in the most optimistic scenarios, Democrats may have as few as two years to act before they permanently lose control of the Senate, and with it, the Supreme Court and the Constitution.
Should they choose to act, moreover, Democrats should know that admitting new states for political reasons is entirely normal in American history — and it was a tactic pioneered by America’s greatest president.