Defending the Electoral College since 2009
One line of attack made by opponents of the Electoral College is that it is inherently racist, both in original intent and in application over the years. There’s not much dispute that the three-fifths clause (which counted enslaved blacks as three-fifths of a person for the purpose of representation in the U.S. House of Representatives) was vile and racist, and that clause’s impact on the Electoral College is fairly obvious.
But it stretches beyond the evidence to claim, as many have, that the Electoral College was itself designed to protect the interests of slave owners or states with large numbers of slaves.
The best, most concise case against these claims is probably the excellent op-ed in The New York Times from last year by Sean Wilentz, a professor of history at Princeton and author of the book No Property in Man: Slavery and Antislavery at the Nation’s Founding. Wilentz initially believed, and wrote in his book, that the Electoral College was founded to protect the interests of slave owners.
Upon further research, however, Wilentz concluded this was not the case. One of the key facts he offers to support his current position is that “the three most ardently proslavery states in the convention” – Georgia, North Carolina, and South Carolina – were the only three “no” votes when the Electoral College was first proposed.
Despite this and other compelling evidence offered by Wilentz and many others, the argument continues to be made that the Electoral College was racist in origin and practice. For example, a recent article in The Atlantic repeats the charge and offers a variety of claims in support, though these tend to not stand up to scrutiny either. Consider the following claim, passed off as a fact, about the effect of the abolition of slavery on presidential elections:
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.
This statement defies the facts or at least requires significant verbal gymnastics and tortured reasoning to withstand scrutiny. The simple fact is that the long-overdue abolition of slavery and the adoption of the Thirteenth Amendment increased the relative power of the South in terms of the size of its congressional delegation and thus its share of the Electoral College – that’s the effect of counting newly-freed blacks as full human beings.
According to information provided by the Office of the Historian of the U.S. House of Representatives (since they seem not to provide it online, we have uploaded it here), as of the 1860 congressional apportionment ten states of what became the Confederacy had 50 out of 230 members of Congress (I’ve excluded Virginia/West Virginia from all of these numbers because the split of the latter from the former unnecessarily complicates the analysis), or about 22 percent of all Representatives.
Following the 1870 census and re-apportionment, when freed slaves were now counted as five-fifths of a person, the number jumped to 64 out of 280 (again excluding Virginia/West Virginia), or 23 percent. And of the fifty new Representatives that were added from 1860 to 1870 (the overall House rose from 241 to 292 members, including Virginia/West Virginia), fourteen went to the ten former states of the Confederacy, or 28 percent, while the size of the House overall increased by only about 22 percent. If anything, the Thirteenth Amendment increased representation of the former Confederate states in the House of Representatives, which of course also increased its relative strength in the Electoral College. I suppose it would be fair to say that the Thirteenth Amendment transformed the previous “windfall” electors into more legitimate electors, but that’s a far cry from ridding the South of them.
The history recounted in the article gets further bungled with the next claim:
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.
While much of this analysis is solid, there’s one glaring problem: had Tilden won, the end of Reconstruction was still going to happen. Tilden was a Northerner heavily dependent on the votes of Southerners, and had the disputed electoral votes of Florida, Louisiana, and South Carolina been awarded to Tilden instead of Hayes, he would have swept the old Confederate states.
The party platform of the Democrats in 1876 vowed to end Reconstruction (the platform describes “corrupt centralism” and “the rapacity of carpet-bag tyrannies” that had “honeycombed the offices of the Federal Government itself with incapacity, waste and fraud” and “infected States and municipalities with the contagion of misrule,” all references to Reconstruction), and it was literally the first issue addressed in the platform. Because the end of Reconstruction was primarily accomplished by a presidential decision to withdraw Federal troops from the South, there’s no reason to believe Tilden would not have ended Reconstruction the same way Hayes did.
Also worth noting, of course, was that even with Federal troops upholding Reconstruction during the 1876 election, suppression of black and other Republican voters was rampant throughout the South – it’s entirely possible and even likely that had such vote suppression not occurred, Hayes would have won the popular vote as well as the Electoral College.
Finally, even before the election many voters outside of the South were increasingly weary of Reconstruction, which contributed to the Democrats taking control of the U.S. House of Representatives in 1874 (the book By One Vote documents this quite well).
The argument that the Electoral College was a fundamentally racist institution and therefore needs to go doesn’t hold up well to scrutiny or find much support in history. Much like slavery, this argument belongs on the ash heap.
Time is running out
There is a real, immediate threat to the constitutional way we elect our president. National Popular Vote is 72% of the way to implementing their dangerous plan.