THE BATTLE FOR THE CONSTITUTION: 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.

By Wilfred Codrington III, Fellow at Brennan Center for Justice at NYU School of Law | The Atlantic | November 17, 2019

 

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.

Read more: The Electoral College was terrible from the start

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 Coll