The Electoral College is the last remaining vestige of slavery in our Constitution

E.J. Montini of The Republic has a column today praising the Nevada state legislature for passing the National Popular Vote Interstate Compact. He is under the impression that Nevada has become the 15th state to join it. Electoral College will go the way of Trump University.

I hate to break it to you, Mr. Montini, but Nevada’s Democratic governor Steve Sisolak vetoed the legislature’s act. (You read that right, a Democratic governor went against the Democrats in the Nevada legislature who passed it). Nevada governor vetoes national popular vote compact: Sisolak said the National Popular Vote Interstate Compact “could diminish the role of smaller states like Nevada in national electoral contests.”

So bummer. But Governor Sisolak’s statement brings me to the relevant part of Montini’s column:

Not morality or fairness, but power

The creation of the Electoral College wasn’t about moral certainty or about protecting small states (I hear that all the time) or anything like that. It was a simple power play by slave states.

Presidential Electors are granted based on population. Slave states wanted their slaves counted in their population numbers (even though they weren’t citizens and could not vote) in order to give themselves more votes in the Electoral College. The “compromise” that was reached, grotesque as it now seems, was that each slave counted for three-fifths of a person.

It was the idea of James Madison, a slave owner, and the representatives of Southern states.

Those states had the most people — but only if slaves were counted. As Paul Finkelman, visiting law professor at University of Saskatchewan in Canada, pointed out, “None of this is about slaves voting. The debates are in part about political power and also the fundamental immorality of counting slaves for the purpose of giving political power to the master class.”

An ugly remnant of slavery

The National Popular Vote would finally eliminate the false premise that the Electoral College was meant to protect small states. In fact, our system reduces a presidential election to a few battleground states and voids millions of votes.

[C]o-founder of National Popular VoteJohn Koza said, “Everybody’s vote should count. But entire campaigns run around a couple of states and that, in turn, distorts government policy.”

A few years back, the Arizona House, by a 40-16 margin that crossed political lines, passed a bill to join the effort.

J.D. Mesnard, who introduced the bill, said in 2016, “Our presidential elections have come down to 10 battleground states. Arizona is so decidedly Republican that neither Democrats nor Republicans find it necessary or beneficial to campaign here. Arizona’s issues are ignored because Arizona voters don’t matter.”

Then-Senate President Andy Biggs would not let the bill come to a vote in the Senate, however.

There are a couple of opinions I had set aside on the slavery origins of the Electoral College that I now have reason to share.

The first is an opinion by Sean Wilentz, a historian and author who concedes that he has definitively written that slavery was the origin of the Electoral College, but now he has changed his mind. The Electoral College Was Not a Pro-Slavery Ploy:

I used to favor amending the Electoral College, in part because I believed the framers put it into the Constitution to protect slavery. I said as much in a book I published in September. But I’ve decided I was wrong. That’s why a merciful God invented second editions.

Like many historians, I thought the evidence clearly showed the Electoral College arose from a calculated power play by the slaveholders. By the time the delegates at the Constitutional Convention in 1787 debated how the president ought to be chosen, they had already approved the three-fifths clause — the notorious provision that counted slaves as three-fifths of a person to inflate the slave states’ apportionment in the new House of Representatives.

The Electoral College, as approved by the convention in its final form, in effect enshrined the three-fifths clause in the selection of the president. Instead of election by direct popular vote, each state would name electors (chosen however each state legislature approved), who would actually do the electing. The number of each state’s electoral votes would be the same as its combined representation in the House and the Senate.

By including the number of senators, two from each state, the formula leaned to making the apportionment fairer to the smaller states. Including the number of House members leaned in favor of the larger states. But the framers gave the slaveholding states the greatest reward: The more slaves they owned, the more representatives they got, and the more votes each would enjoy in choosing the president.

The framers’ own damning words seem to cinch the case that the Electoral College was a pro-slavery ploy. Above all, the Virginia slaveholder James Madison — the most influential delegate at the convention — insisted that while direct popular election of the president was the “fittest” system, it would hurt the South, whose population included nonvoting slaves. The slaveholding states, he said, “could have no influence in the election on the score of the Negroes.” Instead, the framers, led by Madison, concocted the Electoral College to give extra power to the slaveholders.

If you stop at this point in the record, as I once did, there would be no two ways about it.

Mr. Wilentz then goes on to create a counter-narrative of accepted history that it was really all about fending off the possibility of direct popular election of the president, and Southern states were not particularly supportive of the Electoral College. While he makes an interesting argument (read his piece) it is not entirely persuasive.

Akhil Reed Amar, a professor of law at Yale felt compelled to respond to Mr. Wilentz by reference to his piece. Actually, the Electoral College Was a Pro-Slavery Ploy:

Defenders of the Electoral College often counter that it was designed not to help maintain slavery but for other reasons, many of them still relevant, such as to balance the power of big states against that of small states. (Even some critics of the Electoral College have made this argument [Wilentz].)

[T]here are legitimate reasons to keep the Electoral College system, odd and creaky though it may be, but we must accept the fact that it does have deep roots in efforts by the founders to accommodate slavery.

The Electoral College was not mainly designed to balance big states against small states. It certainly did not have that effect: Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia, then America’s biggest state. Only three candidates from small states have ever been elected president: Zachary Taylor, Franklin Pierce and Bill Clinton.

As James Madison made clear at the Constitutional Convention in 1787 in Philadelphia, the big political divide in America was not between big and small states; it was between North and South and was all about slavery. So, too, was the Electoral College at the founding, both in its original incarnation in 1787 and in the version later created by the 12th Amendment, which was adopted in 1804.

Behind closed doors at the Constitutional Convention, when the idea of direct presidential election was proposed by the Northerner James Wilson, the Southerner James Madison explained why this was a political nonstarter: Slaves couldn’t vote, so the slaveholding South would basically lose every time in a national direct vote. But if slaves could somehow be counted in an indirect system, maybe at a discount (say, three-fifths), well, that might sell in the South. Thus were planted the early seeds of an Electoral College system.

Some have argued that direct election was doomed because the Philadelphia delegates disdained democracy. Behind closed doors these elites did indeed bad-mouth the masses (as do elites today). But look at what the framers of the Constitution did, rather than what they said. They put the Constitution itself to a far more democratic vote than had been seen before. They provided for a directly elected House of Representatives (which the earlier Articles of Confederation did not do). They omitted all property qualifications for leading federal positions, unlike almost every state constitution then on the books.

So why didn’t they go even further, providing direct presidential election? Because of Madison’s political calculation: Direct election would have been a dealbreaker for the South. For a while, having members of Congress elect the president emerged as a possible alternative, but this idea, too, would have been pro-slavery for the same reason: Thanks to the three-fifths clause, slave states got extra votes in the House, just as in the Electoral College system that was finally adopted.

When George Washington left the political stage in the mid-1790s, America witnessed its first two contested presidential elections. Twice, most Southerners backed a Southerner (Thomas Jefferson) and most Northerners backed a Northerner (John Adams). Without the extra electoral votes generated by its enormous slave population, the South would have lost the election of 1800, which Jefferson won.

It is true, as some have noted, that some Northerners manipulated the vote in that election to their advantage, but that does not erase the ugly fact that the South had extra seats in the Electoral College because of its slaves. When the Constitution was amended to modify the Electoral College after 1800, all America had seen the pro-slavery tilt of the system, but Jefferson’s Southern allies steamrollered over Northern congressmen who explicitly proposed eliminating the system’s pro-slavery bias.

As a result, every president until Abraham Lincoln was either a Southerner or a Northerner who was willing (while president) to accommodate the slaveholding South. The dominant political figure in antebellum America was the pro-slavery Andrew Jackson, who in 1829 proposed eliminating electors while retaining pro-slavery apportionment rules rooted in the three-fifths clause — in effect creating a system of pro-slavery electoral-vote counts without the need for electors themselves.

Today, of course, slavery no longer skews and stains our system — and maybe the Electoral College system should remain intact. The best argument in its favor is simply inertia: Any reforms might backfire, with unforeseen and adverse consequences. The Electoral College is the devil we know.

But we should not kid ourselves: This devil does indeed have devilish origins.

The fact remains that the Electoral College is the last remaining vestige of slavery in our Constitution. It was not addressed after the Civil War largely for the reason that Professor Amar articulates above: “The best argument in its favor is simply inertia: Any reforms might backfire, with unforeseen and adverse consequences. The Electoral College is the devil we know.”

It has been 154 years since the end of the Civil War and constitutionally-sanctioned slavery. Isn’t 154 years of inertia long enough? Have we not made substantial progress and advancement since then?

The Electoral College is an antiquated practice from our antebellum past that no longer serves its original intended purpose – empowering slave states. This last remaining vestige of slavery should be excised from our Constitution.

It’s time to amend the Constitution for a 21st Century America.