Bill Petrocelli

Part 2: The Electoral College’s Other Problem

Throughout the entire 20th Century, Americans became used to the idea that the winner of the popular vote would take office as President. But when the voters’ will was thwarted in 2000 and 2016, it became clear that the Electoral College could seemingly emerge out of nowhere and change the outcome of the election and alter the course of history. But there’s another, long-term harm built into that Electoral College that has been there all along, and that becomes more apparent the more you look at it.
The version of the Electoral system that we are seemingly stuck with has been heavily altered from its original design (see sidebar “What Did Hamilton and Madison Have in Mind?”). This current version has a dire impact on voting discrimination in every election—not just the vote for President. The current version of the Electoral College provides a pathway – even an incentive – for groups in power to suppress minority voting in their state.
One of the many flaws of the Electoral College is this: the number of Electors for each state is determined by the population of that state according to the last census, and it is not affected by the number of people who actually vote in any particular election. Consequently, political bosses can control the same number of Electoral Votes in a Presidential election no matter how much they restrict or suppress the popular vote in their own state. It’s a system that invites abuse: if you are a political boss concerned about consolidating your power, you can disenfranchise your opponents with impunity. Our history is replete with political leaders who have done just that—suppressing the minority voters in their state and paying no price in the national arena for their actions.

A patchwork of arbitrary and restrictive laws
Prior to the Civil War there was no Constitutional protection for voting rights. That came about only later with the enactment of the 14th and 15th Amendments. If you were deprived of your vote by the dominant political group in your state, you had no way to mount a legal challenge against it. The predictable result in the pre-Civil War period was that a patchwork of arbitrary and restrictive laws were enacted that allowed only a relatively few people the right to vote.
The right of suffrage was expanded or restricted by those in power like any other form of political patronage. Women were excluded from the vote, and in many states property-restrictions excluded low-income male voters. The voting rights of long-term immigrants moved back and forth wildly, depending upon the level of anti-immigrant hysteria. In the 1850’s Connecticut and Massachusetts passed literacy tests, while Rhode Island required naturalized citizens to wait two years before voting. Slaves, of course, were excluded from the vote entirely. The significance of that latter exclusion can be seen from the 1840 presidential election: the total number of votes cast (2,411,808) was less than the estimated number of slaves in the country at that time (2,487,355).
Some of those actions during that period were simply shameful. Prior to 1838 free blacks could vote in Pennsylvania, but in that year their right of suffrage was abolished as part of a deal that would remove property restrictions for white-male voters. Until 1807 women had the right to vote in New Jersey, but that right was abolished as part of a compromise over the voting rights of aliens and the non-taxpaying poor. Free blacks were allowed to vote in North Carolina until 1835, but that right was revoked in response to the Nat Turner rebellion. None of these states would pay any political price for those acts of callousness. The Electoral votes they were allowed to cast stayed the same no matter how many voters they had purged from the rolls.

The Long, Sad History of Jim Crow
After the Civil War, the rules changed – but not nearly enough. The 14th and 15th Amendments eventually had an important impact on voting rights. But it was a very long “eventually.” Except for a brief period during Reconstruction, states in the South engaged in an intense form of discrimination that deprived most African-Americans of the right to vote. This issue was not seriously addressed until the 1960’s—100 years later—with a renewed effort at Civil Rights legislation. It was about the same time that the Supreme Court issued decisions that set new standards for voting rights under the “one person/one vote” rule.
But during the long, sad Jim Crow-period, the Electoral College played a key role in voting discrimination in the South. Political leaders were able to maintain their state’s relative power in the Electoral College while at the same time excluding a large portion of their population from any share of that power. Under normal rules, the number of voters that would show up at the polls in any region would be expected to have an impact on that region’s influence in national politics. But not so under the distortions created by the Electoral College. Minorities were counted for the purpose of allocating Electoral votes, but they were then prevented from having any say in how those votes would be cast.
In 1924, For example, Minnesota and Alabama had almost the exact same population and the same number of Electoral votes (12). But in the election that year Minnesota had almost five times as many actual voters as Alabama (822,593 compared to 166,593). The small number of voters in Alabama was largely due to the suppression of African-American voters. But that discrepancy didn’t weaken Alabama’s political power in the Electoral College. Both states cast 12 Electoral votes. That systematic discrimination actually enhanced the power of those in control of Alabama by giving them a greater proportional say in how those Electoral votes would be cast.

A Form of Institutional Racism
When the pre-Civil War state legislatures engrafted a form of popular voting on to the Electoral College, they created a dangerous problem. The original Elector system was never designed to accommodate popular voting, and the attempt to superimpose it upon the original system has created a flaw in the Electoral College system that has plagued us ever since. Although the problem is most apparent when the Electoral College alters the outcome of a Presidential election, it is something that really affects the entire political process. The situation may not be as dire as in the Jim Crow days, but the modern version of the Electoral College undermines efforts towards voter equality at every turn.
Imagine the response of a political boss when urged to extend voting rights to more people in his state. His first question may be, “What happens if I don’t?” Sadly, the answer is, “Nothing much.” His state will still cast the same number of Electoral votes, and he and his pals won’t be penalized in the slightest. His second question may be, “What happens if I do?” The answer is that he will gain nothing by so doing and might even weaken his control over the Electoral votes that he now controls. It’s pretty clear which answer he is likely to choose.
The Electoral College in its current, distorted version is a form of institutional racism. It may not have been intended to function that way, but it has the same depressing impact as the more deliberate forms of discrimination. Although there are laws in modern-day America designed to fight discrimination in voting, the Electoral College is a stubborn, institutional barrier that hinders that fight at every turn. It contains the type of systematic, institutional problems that courts have struck down in the past.
We only tend to notice the Electoral College when it alters the outcome of a presidential election, but it really has an effect across the board. When those in power know that any effort at voting reform may jeopardize their control over their state’s allotment of Electoral votes, they have every incentive either to do nothing or try to restrict the franchise of their opponents. And when they focus on suppressing voting in Presidential elections, that same effort almost invariably extends to other federal, state, and local elections within the state. Probably the best way to look at the Electoral College is to see it as the mother of all gerrymanders—affecting everything within its reach. The Presidency is the big electoral prize, and those who are determined to control their state’s allotment of Electoral votes are likely to skew every other decision in a way that will guarantee that.
This is not a system that is compatible with the right to an equal vote that is now guaranteed under the 14th and 15th Amendments of the Constitution. And it’s certainly not something that Hamilton, Madison, and the other framers had in mind.