Echoes of Slavery II: How Slavery's Legacy Distorts Democracy

Abstract

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 15th 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 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.