Is the Electoral College a vestige of slavery? It’s a question that has been debated from the moment it became clear that Donald Trump would become the next president despite losing the popular vote to Hillary Clinton.
An answer that will satisfy everyone is not possible. But a provocative law-journal article published in the aftermath of George W. Bush’s victory over the 2000 popular-vote winner, Al Gore, strongly suggests that slavery is indeed at the root of it. With the Electoral College scheduled to ratify Trump’s victory on December 19, it’s time to take a look at how and why this strange institution was created.
The article, titled “The Proslavery Origins of the Electoral College,” was written by Paul Finkelman, then of the University of Tulsa College of Law and now based at Albany Law School in Albany, New York. Finkelman is a prolific writer whose work has appeared in the New York Times and the Washington Post; his scholarly articles have been cited by the Supreme Court. His article on the Electoral College was published in the Cardozo Law Review in March 2002.
Finkelman goes directly to the source, basing his findings on the debates that took place at the Constitutional Convention in 1787. He begins by considering and rejecting the two reasons most often advanced for creating the Electoral College: a lack of trust in the ability of ordinary people to elect the president (in most states, the franchise was limited to literate white property owners, a class with which the founders were quite comfortable) and a perceived need to protect small states (delegates from Virginia and South Carolina, among the largest in the soon-to-be union, were also among the most staunchly opposed to a direct popular vote).
Click the link below to listen to a debate about the Electoral College that was featured on '"The Takeaway," America's weekday conversation jointly produced by WGBH and WNYC.
In fact, Finkelman argues, the Electoral College was adopted in order to provide slave states with a disproportionately loud voice. The convention had already decided to allow each slave state to count an African-American slave as three-fifths of a person for the purpose of awarding seats in the House of Representatives. By apportioning the Electoral College so that every state got one electoral vote for each House district, plus two extra for each of its senators, the slave states were able to use their captive black populations to bolster their influence in presidential elections.
The proximate source of this wrangling was Virginia, the largest state—and thus the most likely to produce presidents, as long as its enslaved population was taken into consideration. According to the official record of the convention, one delegate, Hugh Williamson of North Carolina, observed that slavery would put Virginia at a disadvantage if the president were chosen by popular vote:
The people will be sure to vote for some man in their own State, and the largest state will be sure to succede. This will not be Virga. however. Her slaves will have no suffrage.
And James Madison, a slaveholder from Virginia, told his fellow delegates that the direct election of the president would be unfair to the South because 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.”
Thus was born the Electoral College, with nearly all states awarding their electoral votes on a winner-take-all basis, unfairly empowering the slave states in the decades before the Civil War and small rural states today. The system has gotten so out of whack (see this table) that, in tiny Wyoming, each elector represents about 194,000 residents, whereas in giant California the number is 697,000.
The Electoral College paid immediate dividends for the slave states. As Finkelman observes, in 1800 Thomas Jefferson defeated the incumbent president, John Adams, solely because of the three-fifths rule. It is the height of irony that if slaves had not been counted at all, Adams would have won and the end of slavery might have been hastened. Finkelman writes that “we can only wonder how American history might have played out if the founders had developed a method of choosing the president that was not weighted in favor of slavery.”
For more than a century, the possibility that a president might be elected despite losing the popular vote seemed remote, conjuring up long-ago historical figures such as Rutherford B. Hayes and Benjamin Harrison. Bush’s victory despite losing the popular vote was overshadowed by the mess in Florida.
Trump’s election is different. His defeat in the popular vote was not close: He lost by some 2.7 million votes, a 2 percent margin. Defenders of the Electoral College point to California, which accounts for all of Clinton’s lead and then some. Why, they ask, should California have so much power? The proper answer is that Californians are Americans, and, under the principle of one person, one vote, each of them should have just as much power as, say, a dairy farmer in Vermont.
Despite Harvard Law School professor Lawrence Lessig’s recent call for the Electoral College to choose Clinton, as well as some intrigue among anti-Trump electors, it is a virtual certainty that Trump will be inaugurated on January 20. It’s too late for Clinton. But it’s not too late to begin the hard work of getting rid of the Electoral College.
“I know of no western or industrialized democracy that uses such a system,” writes Finkelman. “As far as I know, the presidency is the only elected office in the United States in which the person with the most votes in the final election does not necessarily win.”
It is long past time for this legacy of slavery to pass from the scene. No system is perfect, including a direct popular vote. But the problems created by a system that is more democratic are surely easier to deal with than those created by ignoring the will of the voters.
Update: Finkelman, now an emeritus professor at Albany Law School, will be the John E. Murray Visiting Professor of Law at the University of Pittsburgh Law School starting in January.