excerpted from: Juan F. Perea, Echoes of Slavery II: How Slavery's Legacy Distorts Democracy, 51 U.C. Davis Law Review 1081 (February, 2018) (112 Footnotes) (Full Article)
"We are never as steeped in history as when we pretend not to be, but if we stop pretending we may gain in understanding what we lose in false innocence." Michel-Rolph Trouillot
We continue to pay a heavy price for our history in slavery. It is no exaggeration to say that the legacies of slavery determined the outcome of the most recent presidential election. Donald Trump lost the popular vote by 2.8 million votes. As a matter of democracy, and according to the will of the voters, he lost the election. Yet as a matter of constitutional law and state electoral-vote allocations, Trump received a substantial majority of the votes in the electoral college and won the presidency. In addition, millions of otherwise eligible voters were denied the right to vote through calculated voter suppression efforts and felon disenfranchisement. For a few days after the election, there was a brief flicker of interest in the electoral college and its origins in slavery. Now, several months since the election, this interest has waned and there is little reckoning with the reason why we have such undemocratic elections.
Donald Trump won the presidency because of two artifacts of slavery: the electoral college and our post-Reconstruction legacy of state voter suppression and disenfranchisement efforts. The electoral college was created in the Constitution to protect the interests of slave owners. And current voter suppression efforts are a direct legacy of white efforts to prevent blacks from voting after the Fifteenth Amendment prohibited race discrimination in voting.
Our failure to know and appreciate the depth of the legacies of slavery leaves us entirely unprepared to understand why presidential elections come out the way they do. In addition, the lack of historical perspective leads us to accept that certain aspects of elections, like state control over voting qualifications and felon disenfranchisement, are somehow neutral and benign doctrines. State voter-suppression efforts enjoy a surface plausibility they do not deserve.
This Essay describes some of the principal legacies of slavery in our electoral law and their major effects on the most recent presidential election. First, I discuss why the Constitution itself is properly considered a proslavery document. One of the proslavery features of the Constitution is the electoral college, enacted as a way to protect the interests of slave owners. Next, I discuss two aspects of state control over voter qualifications that had a major restrictive impact on the electorate: ostensibly neutral efforts like voter ID laws and felon disenfranchisement laws.
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Protections for slavery and for white supremacy determined the outcome of the most recent election. Hillary Clinton lost the election only because we cling to the bizarre electoral college, created simply to bolster the political power of slave owners. And the continued acceptance of state voter suppression laws, including felon disenfranchisement, artificially disqualified millions of otherwise eligible voters, and discouraged many thousands of others from any participation.
So why does it make a difference to know the proslavery and white supremacist origins of the electoral college and voter suppression efforts? First, we can understand that we have a bizarre electoral process because of the Framers' desire to protect slave owners in their slave ownership. These are the real, evidence-based origins of the electoral college. If the reason for the college was unclear before, now it makes sense. We can understand that the world we inhabit continues to be shaped in important ways by slavery and its aftermath. The continuing legacies of slavery need to be explored further to improve our understanding of our society. This clarity of understanding is important for its own sake.
But this is not just an idle venture into history--this history is dismayingly relevant, since the legacies of slavery continue to have grave consequences for our society. Few things are more important in a democracy than the election of a President and the consequences of that election, such as the appointments of Supreme Court justices and decisions to make or avoid war. We must recognize the proslavery origins of our electoral politics to understand why change is necessary. Once we understand this, then we can begin imagining different ways of doing things that get us beyond the legacies of slavery. Clarity of understanding leads to clarity of diagnosis. Clarity of diagnosis enables meaningful strategies for change.
So what can be done once we have understanding? The problem posed is an interesting one. To what extent should rules adopted to protect slavery and slave owners, and later to prevent newly freed slaves from political participation, continue to affect our national elections? Many of us would answer "not at all." Yet when we consider possible responses to this history, there are interesting political dynamics that come into play that make change difficult.
First, consider the electoral college. We should amend the Constitution to eliminate the electoral college. Interestingly, though, there appears to be little sustained interest in that possibility. Even if interest were sustained, it is hard to imagine reaching sufficient national consensus to achieve an amendment. Whichever party wins the election will have benefitted from the college and will therefore be loath to change it. This happened in the most recent election, with Republicans singing retroactively the praises of the electoral college. The most plausible alternative today is the National Popular Vote Interstate Compact, which, if adopted by enough states, would award the winning margin of 270 electoral votes to the winner of the popular vote. Alternatively, more states could choose to award their electoral votes proportionately, rather than winner-take-all. To date, only two states, Nebraska and Maine, have chosen to award their electoral votes proportionately.
Another avenue for reform is to reduce state discretion in defining voter qualifications. At present, states can define their own voter qualifications as long as they comply with constitutional amendments abolishing race, sex, and age discrimination. Notwithstanding the Shelby County decision, much of the Voting Rights Act remains constitutional as an enforcement of the Fifteenth Amendment, which prohibits race discrimination in voting. Recognizing the proslavery and racist origins of much state law defining voter qualifications, there is a strong basis for further regulation under the Fifteenth Amendment.
Lastly, there could be an important role for judicial review in dealing with these vestiges of slavery. Given the demonstrable history of racism with regard to state voter-qualifications law, the courts should be extremely skeptical of any voter qualifications that reduce access to voting. A democracy should protect, encourage, and facilitate voting, rather than facilitate the denial of access to voting. Unfortunately, recent Supreme Court decisions like Crawford and Shelby County offer little hope that the current Court has any interest in protecting minority voting rights.
So we come full circle. I began with the proposition that "we are never as steeped in history as when we pretend not to be." We pretend that our Constitution is sound, and that the electoral college and mostly unregulated, state-created voter qualifications are natural features of our legal environment. But now we can know this is false: large electoral consequences result from our history of slavery. These vestiges of slavery cost us-- black, white, Latino, other people of color, and people of good will-- dearly.