Minority Rights and the Electoral College: What Minority, Whose Rights?

• Publication year: 2021

Minority Rights and the Electoral College: What Minority, Whose Rights?

David Schultz
University of Minnesota

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MINORITY RIGHTS AND THE ELECTORAL COLLEGE: WHAT MINORITY, WHOSE RIGHTS?

David Schultz^*

The Electoral College as a method of selecting U.S. presidents was allegedly set up to protect one type of minority rights—those of slave states and small states—but over time it has operated to deny the rights of racial and other minorities, especially given the winner-take-all system of electoral vote allocation used in forty-eight states. This Essay examines the history and current operation of the Electoral College, detailing how, despite its changes, it continues to privilege some forms of minority rights at the expense of others. The Essay also indicates how in its current form in forty-eight states, the Electoral College suppresses minority votes. Even though Georgia in 2020 appeared to show rising political efficacy for African American voters, the future of minority voting rights in presidential elections is still in trouble if the Electoral College in its present form continues to operate.

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Table of Contents

I. Introduction..................................................................1623

II. A Short History of the Electoral College............1624

III. The Electoral College in Operation.....................1632

IV. The Electoral College and the Swing State Phenomena..................................................................1635

V. The Electoral College and Race..............................1638

VI. What 2020 Means........................................................1644

VII. Conclusion.................................................................1647

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I. Introduction

The 2020 presidential election results in Georgia represent a watershed moment in American history. To the surprise of many, when the votes were certified, Democratic nominee Joe Biden won the state, defeating the Republican candidate, Donald Trump.¹ It was only the fifth time since 1960 that a Democrat had won Georgia's Electoral College votes.² President Biden's victory and the flipping of two U.S. Senate seats from Republican to Democratic control were driven to a large extent by African American voters.³ As a result, there were calls to change voting procedures and requirements to make voting in Georgia more difficult.⁴ One such proposal has already become law.⁵

Historically, it seems that the U.S. Constitution and voting laws have been designed to deny people of color the right to vote and have their voice heard when they were a demographic minority.⁶ Now

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that people of color are part of an emerging electoral majority, those same laws may be changing to protect a White minority.

This Essay looks at the role of minority rights in the Electoral College and argues that the institution has always concerned itself with race and minority votes. Specifically, two basic truths define the Electoral College's existence. One, the Electoral College has always been associated with anti-majoritarianism and minority rights.⁷ Yet, the institution has inconsistently defined which minority and whose rights must be protected versus which must be oppressed.⁸ Two, it is an institution born of slavery and racism, and it continues to perpetuate racism today.⁹ From its origins in the great compromises of the Constitutional Convention of 1787 and up until today, the Electoral College has more often than not restricted the rights of people of color, while enabling the rights of a different minority.¹⁰

II. A Short History of the Electoral College

Classic democratic theory states that the people should select their leaders, including their president and other major officeholders.¹¹ A representative democracy is one where the people ultimately rule through the individuals they elect.¹² The United States, though, is unique in how it selects its president. Rather than

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employing a direct popular vote, the Framers opted for the Electoral College, as described in Article II of the U.S. Constitution and the Twelfth Amendment.¹³

At the Constitutional Convention of 1787—as Robert Dahl¹⁴ and others¹⁵ have pointed out—fear of power, especially when exercised or abused by a majority, was the primary focus of constitutional design.¹⁶ In fact, James Madison, in Federalist No. 10, describes one of the chief tasks of constitutional design as avoiding the problem of majority factions who could oppress the rights of others or the "permanent and aggregate interests of the community."¹⁷ Madison was defending the interests of the minority against the majority, but who constituted the minority is a matter of contest, with some arguing that it was affluent slaveholders.¹⁸

Yet the Constitutional Convention of 1787 was also about compromises.¹⁹ Historian Richard Hofstadter points to the fact that the Framers were political realists and politicians, challenged by

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the need to forge compromise among diverse interests.²⁰ The Constitutional Convention was marked by disputes between the more populous and less populous states over the issue of representation.²¹ Those disputes were made more challenging by the divide over slavery.²² Free and slave states feared that, depending on the representation schema selected for Congress, the other side would prevail and that there would be a United States of all slave states or all free states.²³ The South, possessing the vast majority of slaves, would have had a clear advantage if slaves were counted for the purpose of representation.²⁴

The tension surrounding slavery precipitated a series of fights that ultimately impacted the procedure for presidential selection. First, it influenced how representation in Congress was determined.²⁵ This was a twofold question: one concerned the states, while the other related to individuals. In terms of the states, the question revolved around how representation would be allocated in Congress. Under the Articles of Confederation, each state had equal

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representation in Congress.²⁶ Shortly after the 1787 Convention began, a series of reforms were offered. First was the plan offered by Virginia, often referred to as the big state plan, under which states would receive representation in Congress based on population.²⁷ In response, New Jersey offered the alternative, small state plan premised on equal representation, similar to the Articles of Confederation schema.²⁸ While these dueling plans are mostly viewed as a debate between the more and less populous states, the two plans also indicate a divide between free states and slave states.²⁹ Simple representation based on population would generally favor the more populous free states, especially if only free White people were counted; the slave states disfavored such an arrangement because they feared that this system would lead to emancipation.³⁰

Finally, the Connecticut Plan emerged, offering a bicameral legislature—parallel to the British House of Commons and House of Lords—where the former would be based on population and represent the people's interests, while the latter would have equal representation and represent the states' interests.³¹ Yet this compromise did not resolve the problem. It left open the issue of whom to count for the purposes of representation.³² The slave states wished to include slaves in the count for representation, while the northern free states opposed such inclusion and wanted slaves counted only for purposes of taxation.³³ Convention attendees,

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including James Madison,³⁴ recognized that not counting slaves for representation would hurt the South and urged their inclusion for congressional representation.³⁵ The result was the infamous Three-Fifths Compromise, which counted slaves at that ratio for both representation and taxation purposes.

Next, there was the debate over voting. There was never a serious debate about providing a universal right to vote in the U.S. Constitution.³⁶ This was simply too divisive of an issue and was complicated by slavery, among other issues.³⁷ If there had been a discussion of voting rights, then it would have had to address thorny questions such as property qualifications and the franchise for women and freed slaves.³⁸ The Constitutional Convention avoided a tumultuous and lengthy debate by leaving voting rights up to the states—largely where the issue remains today.³⁹ The Framers effectively left franchise in the hands of White, property owning, adult males who are largely of a mainline religious faith—the classic stereotype of the White Anglo-Saxon Protestant.⁴⁰ Moreover, the U.S. Senate was appointed by state legislatures, thereby leaving little for the people to vote for beyond the House members.⁴¹

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The resulting compromises, including the two-house Congress with equal and per capita representation, the Three-Fifths Compromise, and the delay on the halt on slave trade, all spoke to the compromises to overcome polarization and division caused by slavery.⁴² Thus, a quick look at the representation scheme in Congress and voting rights reveals that both were skewed in favor of the slave states. Allowing slave states to count three-fifths of slaves for the purposes of representation provided those states with approximately ten additional House members, and the equal representation in the Senate provided more representation in that chamber than would have been afforded given their population vis-à-vis the free states.⁴³ The system of representation in Congress did not favor majority rule. It enabled minority rule by a limited number of wealthy individuals, protecting slaveholder interests and excluding rights for just about anyone else.

When the task came to selecting the president, fears of majoritarianism again prevailed.⁴⁴ In Federalist No. 68, Alexander Hamilton described the need to create a president who was above popular opinion and able to lead while remaining accountable to the

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