Electoral College Dropouts
Imagine a city of 1,000 voters, 700 of whom are white and 300 of whom are black, which is governed by a ten-member city council. Each city councilor is elected at large by majority vote of the entire city. If voting is polarized along racial lines, the white voters will be able to choose all ten of the council members and the black voters will be effectively unrepresented. Under the Voting Rights Act, such systems are illegal.
Since presidential electors operate behind the scenes and rarely exercise independent judgment, voters don't tend to think of them as elected officials. But they are, just like city councilors, state legislators and members of Congress. In practice, the winner-take-all rule works just like the at-large voting system in my hypothetical city.
Of course, it is doubtful that anyone in Congress ever anticipated that the Voting Rights Act might be applied to the Electoral College when the 1982 amendments were being considered. But the language of the statute has great latitude, and the Supreme Court has given it a broad interpretation. It applies to any "standard, practice, or procedure...which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color."
The determination of whether a particular "standard, practice, or procedure" violates the act requires a very careful factual inquiry. It is quite possible that a system that is illegal in one state might be perfectly legal in the next. It all depends on the number of minority voters and the degree of racially polarized voting. Racially polarized voting patterns are particularly evident in the Southern states. But many other states exhibit them as well. In California, for example, the Democratic candidate has received more than 80 percent of the African-American vote in the past three elections. Reagan in 1984 and Bush in 1988 both scored heavily among white voters, winning solid majorities that enabled them to carry the state and its prized block of electoral votes.
The idea that the Voting Rights Act could prohibit states from using a winner-take-all rule might seem to run counter to the prevailing trend in voting rights law, which has limited the act's application. Last summer, the Supreme Court held that African-American-majority Congressional districts drawn in Georgia were unconstitutional, and it will likely reach a similar result this summer over Texas and North Carolina. But the problem the Court faces in those cases--manipulation of district lines to favor minority candidates--doesn't apply in the context of the Electoral College. By adopting either a proportional system or a Congressional district system, a state could increase minority voting strength in a race-neutral manner.
A change in the all-or-nothing allocation of electors probably would not have altered the end result of any of the past three elections. But in a close race, it could have a profound effect on politics in this country, including a weakening of the two-party system's grip. Now, African-American voters disenchanted with the Republican Party have no choice but to vote Democratic. But under a Congressional district or proportional system, African-American voters would have the option of fielding their own candidate. Suppose Jesse Jackson and Ross Perot both ran as independents against Clinton and Dole. Under either a Congressional district system or a proportional system, Jackson would almost certainly pick up several electors--perhaps fifteen or twenty. Perot, who didn't win a single Congressional district in 1992, would pick up several in states that used a proportional system but none in states that used the Congressional district system.
Now suppose that none of the four candidates wound up with a majority in the Electoral College. Under these circumstances, both Perot and Jackson would have a strong incentive to try to make a deal with one of the major party candidates, and vice versa. Jackson could, for example, instruct his electors to vote for either Clinton or Dole in exchange for a Cabinet post or a promise to pursue a particular legislative agenda, and thus at least exercise some political power on behalf of his supporters.
Voting for President isn't just about selecting a chief executive. It's about setting an agenda and making your voice heard. Under the current system, the voices of the majority can drown out the minority in every single election. Only by changing the winner-take-all rule will the United States ever hope to elect a President who can truly claim to represent all the people.