The Voting Bonus During Jim Crow
posted by Gerard Magliocca
Justice John Paul Stevens (going strong at 93) gave an interesting speech a few weeks ago in which he talked about how the exclusion of African-American voters during Jim Crow gave white southerners a representation surplus in the House of Representatives and in the Electoral College. What was the impact of that, he wondered? It’s a good question.
Everybody knows that the original Constitution counted a slave as 3/5 of a person for purposes of representation. What people sometimes forget is that the South wanted a slave as a whole person. Not because they thought slaves were people, but because that ratio would give the South more representation. As it was, those states still got a substantial advantage, as slaves could not vote and therefore could easily have not been counted at all. Garry Wills wrote a book in which he pointed out that Jefferson’s election in 1800 was by the margin of this slave bonus, and other ante-bellum results can be traced to the same root.
When slavery was abolished, freed slaves were counted as people. This posed a dilemma for John Bingham and his Republican colleagues, because the South was determined to keep African-Americans from voting. In effect, the Confederacy would be rewarded with 2/5 more power in Washington than it had before Civil War. Section Two of the Fourteenth Amendment was the first stab at solving this problem. It said that if a state did not allow men over 21 to vote, then its representation would be reduced accordingly. The Fifteenth Amendment was another prescription to ensure African-American voting. But following the defeat of the Populists (as I discussed in my last book), African-Americans were completely disenfranchised in the South.
This meant that between roughly 1900 and 1965, the ex-Confederacy had more members of Congress and more Electoral College votes than it was entitled to. With respect to the House of Representatives, it’s hard to say how much this mattered. There may be close votes that could have turned on the Jim Crow bonus, but that is not so clear. (In the Senate, of course, representation does not change the number of senators per state.) In the Electoral College, though, I think we can see some relevant examples. For instance, Woodrow Wilson won the 1916 presidential election very narrowly–277 to 254–over Charles Evans Hughes. Wilson carried every ex-Confederate State. Did those states have 12 extra electoral votes as a result of the representation distortion? Could be.