[rad-green] The Electoral College’s Racist Orig ins

*https://www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/601918/
<https://www.theatlantic.com/ideas/archive/2019/11/electoral-college-racist-origins/601918/>*

*THE ATLANTIC          NOVEMBER 17, 2019*






*The Electoral College’s Racist OriginsMore than two centuries after it was
designed to empower southern white voters, the system continues to do just
that.Wilfred Codrington IIIFellow at Brennan Center for Justice at NYU
School of Law*

[image: image.png]

*FRANK SCHERSCHEL / THE LIFE PICTURE COLLECTION / GETTY*

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
<https://perma.cc/SL53-AFSG> of the *Shelby County v. Holder* ruling and
have only increased
<https://www.brennancenter.org/our-work/research-reports/new-voting-restrictions-america>
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
<https://www.vox.com/policy-and-politics/2019/7/2/20677955/amendment-4-florida-felon-voting-rights-injunction-lawsuits-fines-fees>
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
<https://adamgomez.files.wordpress.com/2012/03/whythesouthmustprevail-1957.pdf>,”
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
<https://avalon.law.yale.edu/18th_century/debates_719.asp>, 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
<https://constitutioncenter.org/blog/the-three-fifths-compromise-rationalizing-the-irrational/>,
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
<http://people.uncw.edu/lowery/pls101/wilson_chapter_outlines/The%20Proslavery%20Origins%20of%20the%20Electoral%20College.pdf>
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
<https://time.com/4558510/electoral-college-history-slavery/>, 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
<https://constitutioncenter.org/blog/the-wildest-election-ever-wasnt-in-2016>,
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
<https://www.census.gov/newsroom/releases/archives/2010_census/cb11-cn185.html>,
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
<https://www.thenation.com/article/exclusive-lee-atwaters-infamous-1981-interview-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
<https://www.nationalpopularvote.com/campaign-events-2016>Americans
<https://www.nationalpopularvote.com/campaign-events-2016> 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
<https://www.theconstitutionproject.com/portfolio/one-person-one-vote/>.
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
<https://www.washingtonpost.com/politics/the-2020-electoral-map-could-be-the-smallest-in-years-heres-why/2019/08/31/61d4bc9a-c9a9-11e9-a1fe-ca46e8d573c0_story.html>
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.

This story is part of the project “The Battle for the Constitution
<https://www.theatlantic.com/projects/battle-constitution/>,” in
partnership with the National Constitution Center.

We want to hear what you think about this article. Submit a letter
<https://www.theatlantic.com/contact/letters/> to the editor or write to
[email protected].
WILFRED CODRINGTON III
<https://www.theatlantic.com/author/wilfred-codrington-iii/> is a fellow at
the Brennan Center for Justice at New York University School of Law.

* *"Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction." [Emphasis
added.]*

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