The Illegitimate President: Minority Vote Dilution and the Electoral College
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The Illegitimate President: Minority Vote Dilution and the Electoral College Matthew M. Hoffmant CONTENTS I. INTRODUCTION ........................... .......... 936 11.RACIAL PoLmcs AND THE ELECTORAL SYSTEM ............. A. The Constitutional Framework ....................... B. The Winner-Take-All System ........................ C. Race, PresidentialPolitics, and the Winner-Take-All Rule .... 1. Strom Thurmond and the "Dixiecrat" Campaign of 1948 . 2. The Free Elector Movement of 1960 ................ 3. The Wallace Campaign of 1968 and the Rise of the Republican South ........................... 957 4. Racial Politics and Present-Day Campaigns .......... 959 III. APPLICATION OF THE VOTING RIGHTS ACT TO THE ELECTORAL SYSTEM ............................. 962 A. ConstitutionalAuthority ........................... 965 B. Statutory Authority ............................... 974 IV. THE § 2 ANALYSIS ........................ ......... 978 A. Legal Standards ....................... ......... 979 1. Numerosity and GeographicalCompactness ......... 980 2. Political Cohesion .................. ......... 984 3. White Bloc Voting ................... ......... 988 4. The Totality of the Circumstances ........ ......... 995 B. Some Specific Examples ................. ......... 999 1. Alabama ......................... ........ 1000 2. California ........................ ........ 1002 t A.B., Harvard University, 1991; J.D., Yale Law School, 1995. I would like to thank a number of people whose comments and suggestions either directly or indirectly contributed to the development of this Article. In alphabetical order, they are: Ian Ayres, Richard Engstrom, Gerald Hebert, Pamela Karlan, Allan Lichtman, Burke Marshall, Joseph R. Palmore, Richard Pildes, Tricia Small, and Brenda Wright. Of course, none of these people should be held responsible for anything that I say. The Yale Law Journal [Vol. 105: 935 3. Illinois ................................... 1005 4. New York .................................. 1007 V. REMEDIES ....................................... 1010 A. The Congressional-DistrictSystem ................... 1011 B. The ProportionalSystem .......................... 1013 VI. RETHINKING WINNER-TAKE-ALL: SOME POSSIBLE EFFECTS .... 1015 A. PoliticalRealignments ........................... 1016 B. Biases, "Wrong Winners," and the Direct-Vote Alternative .. 1019 VII. CONCLUSION ..................................... 1020 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.' I. 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 I. CHARLES WALLACE COLLINS, WHITHER SOLID SOUTH? A STUDY IN POLITICS AND RACE RELATIONS 279, 258 (1947). 1996] The Illegitimate President 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 modem 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 § 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 § 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.6 2. For a recent study that thoroughly documents the persistence of racially polarized voting patterns in eight Southern states, see QUIET REVOLUTION INTHE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990 (Chandler Davidson & Bernard Grofman eds., 1994) [hereinafter QUIET REVOLUTION]. 3. DAVID V. ABBOTT & JAMES P. LEVINE, WRONG WINNER: THE COMING DEBACLE IN THE ELECTORAL COLLEGE 94 (1991); see also NEIL R. PEIRCE & LAWRENCE D. LONGLEY, THE PEOPLE'S PRESIDENT: THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT VOTE ALTERNATIVE 127-30 (rev. ed. 1981) (describing electoral college bias against African-Americans based on their geographical distribution). 4. Judith Best has implicitly suggested that the term "winner-take-all" has pejorative connotations. See JUDITH BEST. THE CASE AGAINST DIRECT ELECTION OF THE PRESIDENT: A DEFENSE OF THE ELECTORAL COLLEGE 27 (1975). I disagree. This Article uses the term "winner-take-all" because it accurately describes the way in which the prevailing electoral system functions: The winner of a state takes all of that state's electoral votes. By contrast, the terms "general ticket" and "unit vote" seem vague and confusing. 5. See 42 U.S.C. § 1973 (1994). 6. The proper definition and labeling of minority groups present thorny problems in any context, but particularly in the context of voting behavior, where individual preferences must be analyzed in the context of group behavior. For the sake of simplicity, this Article focuses primarily on the behavior of African- Americans, a group that is relatively well defined within the context of American society. I use the terms "African-American" and "black" interchangeably to refer to that group of people identified in the U.S. census as non-Hispanic black. At times, however, this Article refers to other racial or ethnic groups protected by the Voting Rights Act, including Asian-Americans and Hispanics. I use the term "Hispanic" to refer to the group of people classified by the census as Hispanic, regardless of race. I have chosen this term, rather than alternate terms like "Latino" or "Chicano," because it emphasizes the linguistic link between the members of this large and diverse minority group, rather than any geographic or ethnic characteristics. Readers should be aware, however, that "Hispanic" is a catchall term comprising several ethnic groups, including Cuban-Americans, Mexican-Americans, and Puerto Ricans, and that Hispanics may be of any race. The Yale Law Journal [Vol. 105: 935 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 ' 7 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