When Americans go to the polls next November to choose a President, virtually every citizen over the age of 18 will have the opportunity to cast a ballot. But while the rules of U.S. politics have changed over the past few decades, when it comes to choosing a President, the game is still rigged against most African-American voters.
The problem lies in the winner-take-all method that forty-eight of the fifty states use to select presidential electors, those shadowy figures whom our Constitution entrusts with the task of choosing the President. Because voting in U.S. presidential elections is sharply polarized along racial lines, this system prevents African-American voters in many states from choosing even a single elector. And that isn't simply undemocratic--it might be illegal.
To understand the problem, consider what happened in Alabama in the 1992 election. George Bush won the state handily with 47.9 percent of the vote, claiming all nine of its electoral votes. But exit polls indicated that 91 percent of African-American voters in Alabama--who make up roughly two-ninths of the state's electorate--voted for Bill Clinton. Despite this overwhelming level of support, Clinton, with only 30 percent of the white vote, didn't secure a single electoral vote in Alabama. African-American voters might just as well have stayed home.
It doesn't have to be this way. Article Two of the Constitu-tion gives each state a more or less free hand in deciding how its electors will be appointed. In fact, both Maine and Nebraska use an alternative method known as the Congressional district system. Under this system, only two of a state's electors are chosen according to the statewide popular vote. The remaining electors are chosen based on the popular vote totals within each Congressional district. If Alabama had used a Congressional district system in 1992, Bush--who won six of the state's seven Congressional districts--would have received only eight electoral votes. Clinton, who won the only Congressional district in which the majority of voters are African-American, would have received one electoral vote.
Many other systems of choosing electors are possible as well. Perhaps the simplest and most logical method is to allocate the electors in rough proportion to the statewide vote. In Alabama, Bush received 47.9 percent of the vote, Clinton 41.1 percent and Ross Perot 10.9 percent. Under a proportional system, Clinton and Bush would each have garnered four electoral votes and Perot one.
Precisely because other systems for choosing electors are possible, the winner-take-all rule may violate federal law. In 1982 Congress amended the Voting Rights Act to make illegal any voting systems that result in discrimination against minority voters, regardless of whether those effects are intentional. The problem that Congress had in mind when it passed the amendments was almost identical to the one posed by the winner-take-all rule. In many jurisdictions candidates are elected to office at large by majority vote. Such systems tend to limit the ability of minority voters to elect candidates to office.
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.