The illegitimate president: minority vote dilution and the electoral college.

• Author: Hoffman, Matthew M.

The Electoral College has served its purpose under the Constitution for more than 150 years. It has operated quietly, smoothly and effectively--so much so that the general public is hardly aware of its existence. But it is there behind the scenes as a great bulwark of our representative form of government.

Neither the Negroes nor any of the groups which support them can alone, or in conjunction with each other, give assurance of control of a single vote in the Electoral College.(1)

1. INTRODUCTION

   African-American voters in the United States have never held much sway in the election of the President. Although they often exert considerable influence in presidential primaries, their status as a racial minority ensures that, in the general election, their voices are frequently drowned out by the majority. In the electoral college, where the President is actually chosen, the preferences of minority voters count for almost nothing. The overwhelming majority of states provide that the presidential candidate who wins the popular vote in the state claims all of its electoral votes. Thus, so long as minority voters have different political preferences than the majority--a fact that is almost self-evident in many parts of the country--their votes will be virtually meaningless in the final selection of the President. This problem is perhaps most acute in the South, where the political disparities between African-American and white voters have historically been most pronounced.(2) As one pair of commentators has recently noted, African-American voters in the South "have had little more influence on most modern presidential general elections than Bulgarians. Their votes, although technically cast, have not usually counted."(3)

   This Article examines the mechanics of this phenomenon and advances a novel legal claim with potentially far-reaching implications for the American political system. I contend that many states--including California, New York, Illinois, and much of the South--may be conducting presidential elections in a manner prohibited by federal law. Specifically, I argue that, in these states, the so-called "winner take all" system of choosing presidential electors (sometimes referred to as the "general ticket" or "unit vote" system)(4) potentially violates [sections] 2 of the Voting Rights Act of 1965, which, as amended in 1982, prohibits electoral systems that limit or dilute the ability of racial and language minorities to elect candidates of their choice.(5)

   As this Article will demonstrate, voting in presidential elections is highly polarized along racial lines. Consequently, choosing presidential electors through the winner-take-all system results in a paradigmatic example of the kind of discrimination that [sections] 2 was meant to eliminate. Its all-or-nothing character prevents the formation of politically cohesive blocs of African-American voters--and possibly blocs of other minority voters as well--even in states where they clearly could choose one or more electors under an alternative system.

   The key to understanding this phenomenon is to recognize that, under the Constitution, the people do not vote directly for presidential candidates. Instead, they vote for slates of candidates for the office of presidential elector. Under the winner-take-all rule, the slate that receives the most votes statewide wins the election in that state. Although this method of election is not constitutionally required, it is currently used by forty-eight states and the District of Columbia. Since the slates are chosen by the political parties that nominate the presidential candidates, the net effect is to give the candidate who wins the statewide popular vote all of that state's electoral votes. Political minority groups are thus unable to choose even a single presidential elector. In the memorable phrase of Justice Douglas, their ballots are "counted only for the purpose of being discarded."'

   As a point of comparison, consider the following hypothetical. Suppose that a state with a large minority population decided to adopt the winner-take-all rule for elections to the House of Representatives--as, under the Constitution, states are entitled to do.(8) Under this system, each party would nominate a slate of congressional candidates, and voters would simply vote for one party or the other. In that case, the majority faction in the state would be able to choose all of the state's congressional representatives in the House and the Senate. If voting were polarized along racial lines, it seems evident that the votes of racial minorities would be almost worthless, and that they would be virtually unrepresented in the national legislature. Such a system would seem patently unfair--and yet it is precisely the same system that we currently countenance for the selection of presidential electors.

   Electors, of course, exercise a very different political function than members of Congress. Most voters are scarcely aware of their existence. Those few who do understand how the electoral system functions tend to dismiss the role of the electors as a mere formality. In a sense, these observations are valid. After all, electors customarily do not exercise any independent judgment, or perform any of the other tasks that one typically expects of elected representatives. Yet it is important to recognize that electors do perform a representative function. They cast ballots for President on behalf of the people of their states--or, more precisely, on behalf of those voters who chose them. Voters who cannot participate effectively in choosing the electors realistically have no voice in selecting the President.

   This Article documents the severe racial polarization in American presidential elections in the 1980s and 1990s through a detailed analysis of primary and general election exit poll data. The fact that black and white voters consistently tend to prefer different candidates is readily apparent from national survey data. Exit polls indicate that, in the past five presidential elections, between 82% and 90% of black voters nationwide have voted for the Democratic candidate. By contrast, white voters have preferred the Republican candidate in every election since 1976, by margins ranging from 2% in 1992 to 29% in 1984.(9)

   Through an original analysis of exit poll data, this Article demonstrates that similar patterns of racial polarization hold true at the statewide level as well. This analysis also demonstrates that these divergent patterns cannot be explained on mere partisan grounds. Indeed, polls indicate that similar patterns hold true even among independent voters and among members of the same political party.(10) Furthermore, the results of the 1984 and 1988 presidential primaries--in which an African-American candidate, Jesse Jackson, staged prominent bids for the Democratic nomination--clearly indicate that even in intraparty contests, black and white voters have distinct political preferences. Jackson was the overwhelming favorite among African-American Democrats in those races, frequently capturing more than 90% of the black vote, but he seldom received more than 10% to 15% of the white vote.

   In fact, these disparities are not surprising, given the prominent role that race and race-related issues play in modern American presidential politics. Racial appeals, some direct and some more covert, have been a recurring feature of presidential campaigns during the last fifty years, from the "Dixiecrat" campaign of Strom Thurmond in 1948 to the third-party challenge of arch-segregationist George Wallace in 1968 to the infamous "Willie Horton" advertisements of George Bush's campaign in 1988.

   Such carefully orchestrated racial appeals virtually ensure that voting in presidential elections will be polarized along racial lines. And the winner-take-all system works in conjunction with that polarization to shut the voices of African-American voters out of the political process. As noted above, this problem is most acute in the states of the former Confederacy, where racially polarized voting is particularly severe. In these states, African-American voters have little or no hope of choosing even a single member of the electoral college.(11) Although they can step into a booth and pull a lever, their votes never really count. With respect to presidential elections, they are completely disenfranchised--just as they were for so many years in the eras of slavery and segregation.

   The argument that the current electoral system tends to disadvantage voters who are members of political minority groups has been made many times before.(12) Several legal challenges based on the Equal Protection Clause of the Fourteenth Amendment have fallen on deaf ears.(13) The argument in this Article, however, rests on an alternative theory that addresses the system's inequities with respect to voters who are members of racial minority groups. The thread of this argument may seem initially to run counter to recent trends in voting rights law that have limited the reach of the Voting Rights Act.(14) As this Article will demonstrate, however, application of the Voting Rights Act to the electoral college is particularly appropriate in light of these decisions because it does not require states to employ any race-conscious remedies.

   In Part II of this Article, I outline the constitutional framework and historical roots of the electoral system and describe the legal mechanisms by which the winner-take-all system operates. I then turn to a discussion of some comparatively recent history, focusing on the efforts of various politicians to advance racist agendas, either explicitly or covertly, through the manipulation of the electoral college. Thurmond's 1948 campaign and Wallace's 1968 campaign are the clearest examples of this phenomenon. This Article contends that the legacy of these efforts lives on in the present day.

   Part III then turns to a discussion of...