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Analysis

The Electoral College’s Racist Origins

More than two centuries after it was designed to empower southern white voters, the system continues to do just that.

This piece was origin­ally published by the Atlantic.

Is a color-blind polit­ical system possible under our Consti­tu­tion? If it is, the Supreme Court’s evis­cer­a­tion of the Voting Rights Act in 2013 did little to help matters. While black people in Amer­ica today are not exper­i­en­cing 1950s levels of voter suppres­sion, efforts to keep them and other citizens from parti­cip­at­ing in elec­tions began within 24 hours of the Shelby County v. Holder ruling and have only increased since then.

In Shelby County’s oral argu­ment, Justice Antonin Scalia cautioned, “Whenever a soci­ety adopts racial enti­tle­ments, it is very diffi­cult to get them out through the normal polit­ical processes.” Iron­ic­ally enough, there is some truth to an other­wise fright­en­ingly numb claim. Amer­ican elec­tions have an acute history of racial enti­tle­ment­s—only they don’t priv­ilege black Amer­ic­ans.

For centur­ies, white votes have gotten undue weight, as a result of innov­a­tions such as poll taxes and voter-ID laws and outright viol­ence to discour­age racial minor­it­ies from voting. (The point was obvi­ous to anyone paying atten­tion: As William F. Buckley argued in his essay “Why the South Must Prevail,” white Amer­ic­ans are “entitled to take such meas­ures as are neces­sary to prevail, polit­ic­ally and cultur­ally,” anywhere they are outnumbered because they are part of “the advanced race.”) But Amer­ica’s insti­tu­tions boos­ted white polit­ical power in less obvi­ous ways, too, and the nation’s oldest struc­tural racial enti­tle­ment program is one of its most consequen­tial: the Elect­oral College.

Comment­at­ors today tend to down­play the extent to which race and slavery contrib­uted to the Framers’ creation of the Elect­oral College, in effect white­wash­ing history: Of the consid­er­a­tions that factored into the Framers’ calcu­lus, race and slavery were perhaps the fore­most.

Of course, the Framers had a number of other reas­ons to engin­eer the Elect­oral College. Fear­ful that the pres­id­ent might fall victim to a host of civic vices—that he could become suscept­ible to corrup­tion or cronyism, sow disunity, or exer­cise over­reach—the men sought to constrain exec­ut­ive power consist­ent with consti­tu­tional prin­ciples such as feder­al­ism and checks and balances. The deleg­ates to the Phil­adelphia conven­tion had scant concep­tion of the Amer­ican pres­id­ency—the duties, powers, and limits of the office. But they did have a hand­ful of ideas about the method for select­ing the chief exec­ut­ive. When the idea of a popu­lar vote was raised, they griped openly that it could result in too much demo­cracy. With few objec­tions, they quickly dispensed with the notion that the people might choose their leader.

But deleg­ates from the slave­hold­ing South had another rationale for oppos­ing the direct elec­tion method, and they had no qualms about artic­u­lat­ing it: Doing so would be to their disad­vant­age. Even James Madison, who professed a theor­et­ical commit­ment to popu­lar demo­cracy, succumbed to the real­it­ies of the situ­ation. The future pres­id­ent acknow­ledged that “the people at large was in his opin­ion the fittest” to select the chief exec­ut­ive. And yet, in the same breath, he captured the senti­ment of the South in the most “diplo­matic” terms:

“There was one diffi­culty however of a seri­ous nature attend­ing an imme­di­ate choice by the people. The right of suffrage was much more diffus­ive in the North­ern than the South­ern States; and the latter could have no influ­ence in the elec­tion on the score of the Negroes. The substi­tu­tion of elect­ors obvi­ated this diffi­culty and seemed on the whole to be liable to fewest objec­tions.”

Behind Madis­on’s state­ment were the stark facts: The popu­la­tions in the North and South were approx­im­ately equal, but roughly one-third of those living in the South were held in bond­age. Because of its consid­er­able, nonvot­ing slave popu­la­tion, that region would have less clout under a popu­lar-vote system. The ulti­mate solu­tion was an indir­ect method of choos­ing the pres­id­ent, one that could lever­age the three-fifths comprom­ise, the Faus­tian bargain they’d already made to determ­ine how congres­sional seats would be appor­tioned. With about 93 percent of the coun­try’s slaves toil­ing in just five south­ern states, that region was the undoubted bene­fi­ciary of the comprom­ise, increas­ing the size of the South’s congres­sional deleg­a­tion by 42 percent. When the time came to agree on a system for choos­ing the pres­id­ent, it was all too easy for the deleg­ates to resort to the three-fifths comprom­ise as the found­a­tion. The pecu­liar system that emerged was the Elect­oral College.

Right from the get-go, the Elect­oral College has produced no short­age of lessons about the impact of racial enti­tle­ment in select­ing the pres­id­ent. History buffs and Hamilton fans are aware that in its first major fail­ure, the Elect­oral College produced a tie between Thomas Jeffer­son and his putat­ive running mate, Aaron Burr. What’s less known about the elec­tion of 1800 is the way the Elect­oral College succeeded, which is to say that it oper­ated as one might have expec­ted, based on its embrace of the three-fifths comprom­ise. The South’s baked-in advant­ages—the bonus elect­oral votes it received for main­tain­ing slaves, all while not allow­ing those slaves to vote—made the differ­ence in the elec­tion outcome. It gave the slave­holder Jeffer­son an edge over his oppon­ent, the incum­bent pres­id­ent and abol­i­tion­ist John Adams. To quote Yale Law’s Akhil Reed Amar, the third pres­id­ent “meta­phor­ic­ally rode into the exec­ut­ive mansion on the backs of slaves.” That elec­tion contin­ued an almost unin­ter­rup­ted trend of south­ern slave­hold­ers and their dough­faced sympath­izers winning the White House that lasted until Abra­ham Lincol­n’s victory in 1860.

In 1803, the Twelfth Amend­ment modi­fied the Elect­oral College to prevent another Jeffer­son-Burr–­type debacle. Six decades later, the Thir­teenth Amend­ment outlawed slavery, thus ridding the South of its wind­fall elect­ors. Never­the­less, the shoddy system contin­ued to cleave the Amer­ican demo­cratic ideal along racial lines. In the 1876 pres­id­en­tial elec­tion, the Demo­crat Samuel Tilden won the popu­lar vote, but some elect­oral votes were in dispute, includ­ing those in—wait for it—Flor­ida. An ad hoc commis­sion of lawmakers and Supreme Court justices was empaneled to resolve the matter. Ulti­mately, they awar­ded the contested elect­oral votes to Repub­lican Ruther­ford B. Hayes, who had lost the popu­lar vote. As a part of the agree­ment, known as the Comprom­ise of 1877, the federal govern­ment removed the troops that were stationed in the South after the Civil War to main­tain order and protect black voters.

The deal at once marked the end of the brief Recon­struc­tion era, the redemp­tion of the old South, and the birth of the Jim Crow regime. The decision to remove soldiers from the South led to the restor­a­tion of white suprem­acy in voting through the system­atic disen­fran­chise­ment of black people, virtu­ally accom­plish­ing over the next eight decades what slavery had accom­plished in the coun­try’s first eight decades. And so the Elect­oral College’s misfire in 1876 helped ensure that Recon­struc­tion would not remove the original stain of slavery so much as smear it onto the other parts of the Consti­tu­tion’s fabric, and coun­ten­ance the racial­ized patch­work demo­cracy that endured until the passage of the Voting Rights Act of 1965.

What’s clear is that, more than two centur­ies after it was designed to empower south­ern whites, the Elect­oral College contin­ues to do just that. The current system has a distinct, adverse impact on black voters, dilut­ing their polit­ical power. Because the concen­tra­tion of black people is highest in the South, their preferred pres­id­en­tial candid­ate is virtu­ally assured to lose their home states’ elect­oral votes. Despite black voting patterns to the contrary, five of the six states whose popu­la­tions are 25 percent or more black have been reli­ably red in recent pres­id­en­tial elec­tions. Three of those states have not voted for a Demo­crat in more than four decades. Under the Elect­oral College, black votes are submerged. It’s the precise reason for the success of the south­ern strategy. It’s precisely how, as Buckley might say, the South has prevailed.

Among the Elect­oral College’s support­ers, the favor­ite ration­al­iz­a­tion is that without the advant­age, politi­cians might disreg­ard a large swath of the coun­try’s voters, partic­u­larly those in small or geograph­ic­ally incon­veni­ent states. Even if the claim were true, it’s hardly conceiv­able that switch­ing to a popu­lar-vote system would lead candid­ates to ignore more voters than they do under the current one. Three-quar­ters of Amer­ic­ans live in states where most of the major parties’ pres­id­en­tial candid­ates do not campaign.

More import­ant, this “voters will be ignored” rationale is morally indefens­ible. Award­ing a numer­ical few voting “enhance­ments” to decide for the many amounts to a tyranny of the minor­ity. Under any other circum­stances, we would call an elect­oral system that weights some votes more than others a farce—which the Supreme Court, more or less, did in a series of land­mark cases. Can you imagine a world in which the votes of black people were weighted more heav­ily because pres­id­en­tial candid­ates would other­wise ignore them, or, for that matter, any other reason? No. That would be a racial enti­tle­ment. What’s easier to imagine is the racial burdens the Elect­oral College contin­ues to wreak on them.

Crit­ics of the Elect­oral College are right to denounce it for hand­ing victory to the loser of the popu­lar vote twice in the past two decades. They are also correct to point out that it distorts our polit­ics, includ­ing by encour­aging pres­id­en­tial campaigns to concen­trate their efforts in a few states that are not repres­ent­at­ive of the coun­try at large. But the disem­power­ment of black voters needs to be added to that list of concerns, because it is core to what the Elect­oral College is and what it always has been.

The race-conscious­ness estab­lish­ment—and reten­tion—of the Elect­oral College has suppor­ted an enti­tle­ment program that our 21st-century demo­cracy cannot justify. If people truly want ours to be a race-blind polit­ics, they can start by pluck­ing that strange, low-hanging fruit from the Consti­tu­tion.