PART ONE

The Hidden History of the Vote in America

Power to the South: The Three-Fifths Compromise

As the drama of writing the Constitution for a new nation was going on during the summer of 1787 in Independence Hall in Philadelphia (then the home of the Pennsylvania Legislature), a different kind of drama was playing out in the streets of that city.

It was, according to the newspapers of the day and the letters sent home from delegates to the Convention, a brutally hot, muggy, mosquito-infested summer in Philadelphia. This was during a time when the mechanisms of weather were largely unknown, and superstition was thickly merged with Christianity.

Thus, on May 5, when a boy of about five years died of an apparent heatstroke, an elderly woman in town was accused of being the witch who’d cast a spell upon him. The delegates were just arriving in town for the opening of the Constitutional Convention on May 14 and no doubt noticed, as reported on May 11 in the Pennsylvania Packet newspaper, that the good citizens of the town grabbed the woman, known only as Mrs. Korbmacher (the German word for basket maker), on one of the main streets and tried to cut open her forehead to bleed her of evil spirits.1

Mrs. Korbmacher was having none of it, and she ran through the streets with an angry mob following her. A few people spoke up on her behalf but were shouted down or threatened by the crowd. At the end of the day, though, they let her live and she escaped.

She wasn’t so lucky, however, on July 10.

That day was a hot and muggy Tuesday, and on Friday of that week, in frustration, Edmund Randolph would submit the “Three-Fifths Compromise” to break the debate between slave states, free states, small states, and large states on the question of how many members of the House of Representatives each state should have.

It fundamentally shaped the future governance of America, and shaped the Electoral College as well for the next 240-plus years.

But on July 10, they were still slugging it out. James Madison’s notes described the scene, published in Notes of Debates in the Federal Convention of 1787.2

The proposal put on the floor by Massachusetts’s Rufus King, a lawyer and member of the Continental Congress, was that the states should have representatives based on their potential white male voting population, which would have created a total of 65 House members.

King argued that although he didn’t want to disenfranchise the Southern slave states, they certainly didn’t have enough white citizens to justify a majority of the seats in the proposed Congress.

“The four Eastern States having 800,000 souls,” he said, according to Madison, “have ⅓ fewer representatives than the four Southern States, having not more than 700,000 souls, rating the blacks as 5 for 3.” This, he said, would upset the “Eastern states,” who would consider themselves the “subject [of] gross inequality.” While he wanted to preserve the “security of the Southern” states, there was “[n]o principle [that] would justify giving them a majority.”

The representative from Massachusetts, along with most of the other Eastern and Northern states, wanted to keep the union together with the Southern slave states, Madison noted, “but did not see how it could be done.”

This threw the Convention into chaos.

South Carolina’s Pinckney dramatically declared that if the Northern states had such a majority over the Southern states, then the slave states “will be nothing more than overseers for the Northern States.” And the Southern states had no intention of ever being under the thumb of the Northern states.

The day devolved from there.

Frustrated, they gave up the debate toward the end of the day and moved on to a series of largely typographic edits of what had already been agreed on in other areas of the Constitution.

The Racist Legacy of a Constitutional Compromise

While the delegates debated inside, outside Mrs. Korbmacher was being beaten to death by an angry and frightened mob. The heat had not relented. The mob was now sure that not only had she killed the little boy but she was trying to kill them too with the heat.

In 1787, it was widely believed among the white power structure of this country that some women were witches and that people with dark skin were lazy, stupid, incapable of feeling very much pain, and generally subhuman.

We look back on Mrs. Korbmacher’s sad story with a certain bemusement. Today, we no longer kill witches—the very idea of a woman being a “dangerous” witch is considered bizarre. But racial myths are still very much a part of the American political and social mindscape.

When a black man was elected president of the United States in 2008, almost a third of the white electorate believed that it was impossible for a black man to attain such an office by his own intellect and hard work.

Instead of winning through merit, talent, and political positions, people like Donald Trump and David Duke asserted, Barack Obama must have been a stalking horse, a Manchurian candidate, raised up out of Kenya by malevolent Muslim forces and installed as a child in Hawaii to one day rule over and destroy white America.

And this wasn’t a worldview held exclusively by a small group of white bigots.

In 2017, white supremacists—“some very good people,” as Trump said—marched in Charlottesville, Virginia, chanting, “You will not replace us. . . . Jews will not replace us.” One avowed white supremacist murdered a counterprotester. Excluding the anomaly of 9/11, white supremacist terrorists killed more Americans in the previous three decades than did any other group, but police today are more likely to investigate black groups than white supremacist ones.3 ^, 4

The Ku Klux Klan didn’t come into its own until 1865. But its progenitors, mostly in the form of the slave patrols, were terrorizing black people with enthusiasm in 1787 and continue, under other names, to do so to this day.

On the slightly cooler morning of Friday, July 13, 1787, starting from the issue of taxation, the exhausted members of the Convention considered Randolph, James Wilson, and Roger Sherman’s Three-Fifths Compromise, and it passed unanimously.5

They’d solved the problem, although they’d also set up the elections of John Quincy Adams, Rutherford B. Hayes, Benjamin Harrison, George W. Bush, and Donald Trump, who all lost the popular vote but became president because they won the Electoral College.

The Founders Feared a Trump-like President—Which Is Why They Established the Electoral College

The founders and framers thought they could prevent somebody like Donald Trump from ever becoming president. They were wrong, and we’re still paying the price.

It’s often said that the Electoral College was brought into being to perpetuate or protect the institution of slavery, and, indeed, during the first half-century of America it gave the slave states several presidents who otherwise wouldn’t have been elected.

Most of the pro-slave-state bias of the Electoral College, however, was a function of the Three-Fifths Compromise (which, until the 1870s, gave slave states more members in the House of Representatives than called for by the size of their voting public) and the decision to give each state two US senators.

But, according to the framers of the Constitution themselves, the real reason for the Electoral College was to prevent a foreign power from placing their stooge in the White House.

Today we’re horrified by the idea that Donald Trump may truly be putting the interests of foreign governments ahead of our own, and that money and other efforts from multiple foreign entities may have helped him get elected.

It’s shocking. Many of us never took the idea seriously when the movie The Manchurian Candidate came out in 1962. “What an intriguing idea for a movie,” we thought, “but that could never happen here.”

However, this scenario was a huge deal for the founding generation. One of the first questions about any candidate for president was “Is he beholden in any way to any other government?”

At the time of the Declaration of Independence, it’s estimated that nearly two-thirds of all citizens of the American colonies favored remaining a British colony (Jimmy Carter’s novel The Hornet’s Nest is a great resource). There were spies and British loyalists everywhere, and Spain had staked out its claim to the region around Florida while the French were colonizing what is now Canada.

Foreign powers had us boxed in.

In 1775, virtually all of the colonists had familial, friendship, or business acquaintances with people whose loyalty was suspect or who were openly opposed to American independence.

It was rumored that Ben Franklin, while in Paris, was working as a spy for British intelligence, and his close associate, Edward Bancroft, actually was.6 Federalists, in particular, were wary of his “internationalist” sentiments.

Thomas Jefferson lived in France while the Constitution was drafted, and his political enemies were, even then, whispering that he had, at best, mixed loyalties (and it got much louder around the election of 1800). In response, he felt the need to protest to Elbridge Gerry, in a letter on January 26, 1799, “The first object of my heart is my own country. In that is embarked my family, my fortune, and my own existence.”7

When John Adams famously defended British soldiers who, during an anti-British riot on March 5, 1770, shot and killed Crispus Attucks and four others, he was widely condemned for being too pro-British. The issue recurred in 1798 when he pushed the Alien and Sedition Acts through Congress over Vice President Thomas Jefferson’s loud objections. British spy Gilbert Barkley wrote to his handlers in London that Quakers and many other Americans considered Adams an enemy to his country.

When Adams blew up the XYZ Affair and nearly went to war with France, his political opponents circulated the rumor that he was doing it only to solidify his “manly” and “patriotic” credentials. Historian and author John Ferling, in his book A Leap in the Dark: The Struggle to Create the American Republic, writes that Adams’s anti-British rhetoric worked at changing the perception of him: “By mid-1798 he was acclaimed for his ‘manly fortitude,’ ‘manly spirited’ actions, and ‘manly independence.’”8

After the Revolutionary War, the nation was abuzz about Benedict Arnold—one of the war’s most decorated soldiers and once considered a shoo-in for high elected office—selling out to the British in exchange for money and a title.

So it fell to a fatherless man born in the West Indies to explain to Americans that the main purpose of the Electoral College was to make sure that no agent of a foreign government would ever become president.

Alexander Hamilton wrote in Federalist, no. 68, that America was so spread out, it would be difficult for most citizens/voters to get to know a presidential candidate well enough to spot a spy or traitor. But the electors—having no other governmental duty, obligation, or responsibility—would catch one.9

After all, the way the Constitution set up the Electoral College, the electors were expected to cast their votes for president reflecting the preferences of their states, but they didn’t have to. They’d all assemble in the nation’s capital and get to know the candidates, and make their own independent determinations on the character and qualities of the men running for president. They’d easily spot a foreign agent or a person with questionable sympathies.

“The most deadly adversaries” of America, Hamilton wrote, would probably “make their approaches [to seizing control of the United States] from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”

But influencing public opinion or owning a senator was nothing compared with having their man in the White House. As Hamilton wrote, “How could they better gratify this, than by raising a creature of their own to the chief magistracy [presidency] of the Union?”

But, Hamilton wrote, the framers of the Constitution “have guarded against all danger of this sort, with the most provident and judicious attention.”

The system they set up to protect the presidency from an agent of a foreign government was straightforward, Hamilton claimed. The choice of president would not “depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes.” Instead, the Electoral College would be made up of “persons [selected] for the temporary and sole purpose of making the appointment.”

The electors would be apolitical, Hamilton wrote: “And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.” This, Hamilton was certain, would eliminate “any sinister bias.”

Rather than average but uninformed voters, and excluding members of Congress who might be subject to bribery or foreign influences, the electors would select a man for president who was brave of heart and pure of soul.

“The process of election [by the Electoral College] affords a moral certainty,” Hamilton wrote, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Indeed, although a knave or rogue or traitor might fool enough people to ascend to the office of mayor of a major city or governor of a state, the Electoral College would likely ferret out such a traitor.

“Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence” of the men in the Electoral College, who would select him as president “of the whole Union.”

Hamilton asserted, “It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”

Unfortunately, that’s not what happened.

Because of the Three-Fifths Compromise, which gave more electors to the slave states than their voting populations would indicate, the Electoral College handed the White House to four Virginia slaveholders among our first five presidents. Since that Compromise was eliminated, it has continued to wreak mischief by putting George W. Bush and Donald Trump into office.

Hamilton never envisioned a day when a man so entangled in financial affairs with foreign governments as Donald Trump is could even be seriously considered. And, by Hamilton’s standards, the electors totally failed in their job in the 2016 election.

The Electoral College was a compromise designed to keep the president above political considerations; it was sold to the public as a way to prevent an agent (witting or unwitting) of a foreign power from becoming president.

It’s failed on both counts.

The Electoral College and Slavery

It’s as difficult to disentangle racism from birtherism as it is tough to separate the Three-Fifths Compromise from the Electoral College.

The Three-Fifths Compromise gave a larger share of representation in Congress to slave states. And because the Electoral College reflects the makeup of Congress, one could argue that were it not for slavery, George W. Bush and Donald Trump never would have become president.

Slavery has been the single largest defining factor in the history and arc of American politics. That salient “peculiar institution” is responsible for the Second Amendment and for the Electoral College working the way it does.

When Congress repealed the Three-Fifths Compromise with the 14th Amendment in the wake of the Civil War, it actually increased the federal political power of the former slave states. Instead of Southern black populations being counted at three-fifths, they were counted at 100 percent. This in turn increased the total number of members of the House of Representatives, and thus the number of Electors, from Southern states, even while those states aggressively suppressed the votes of black residents.

But the biggest perversion of democracy due to the Electoral College involves the US Senate.

For every member of Congress, there’s a member of the Electoral College. At the level of the House of Representatives, this basically tracks the populations of the states. With the Senate, though, the result heavily favors the former slave states and small-population states like Wyoming and Vermont.

California, for example, has nearly 40 million citizens but only two senators. Ditto for New York, with 19 million citizens and two senators.

The imbalance is so bad that the 25 smallest states control half of the Senate (50 out of 100 senators) but represent only 16 percent of American voters. They can (and regularly do) overrule the sentiments of the other 84 percent of Americans represented by the senators from the largest 25 states.10

Like the Three-Fifths Compromise, the form of the Senate was the result of slavery as much as it was a conflict between large and small states. After all, several of the slave states, when their black population was excluded, had a similar number of white male voters as the medium-sized Northern states.

Samuel Thatcher of Massachusetts objected bitterly, saying, “The representation of slaves adds thirteen members to this House in the present Congress, and eighteen Electors of President and Vice President at the next election.”11

Nonetheless, America continued to elect slaveholders to the White House all the way through the presidency of Andrew Jackson, in large part because of both the undemocratic nature of the Senate and the Three-Fifths Compromise.

The 15th Amendment resolved the three-fifths issue on paper, but the issue of how each state having two senators skewed the Electoral College persisted.

In 1934, the Senate came within two votes of the two-thirds necessary to pass a constitutional amendment to the states to eliminate the Electoral College and go to direct election of the president. Senator Alben Barkley, D-Kentucky (later Harry Truman’s vice president), stated, “The American people are qualified to elect their president by a direct vote, and I hope to see the day when they will.”12

The Senate took up the issue again in 1979, led by Senator Birch Bayh, D-Indiana, but this time it fell even shorter of two-thirds: the vote was 51 for and 49 against.

Given that as many as 80 percent of Americans currently think the Electoral College should be abolished,13 a number of states have adopted a non-amendment alternative solution, although it’s facing strong headwinds from Republican-controlled states.

From 1790 to 2016, Philip Bump wrote in the Washington Post, “the most populous states making up half of the country’s population have always been represented by only about a fifth of the available Senate seats.”14

And while the Senate has always skewed the politics of America toward the wishes of the small states, it also distorts the Electoral College, since even the smallest states have two US senators who are represented in the Electoral College vote. It’s a small advantage, but it’s enough to swing elections.

The Unique Struggles of Women and Native Americans to Vote

Wealthy white men have had the right to vote in America since the beginning of our republic. It’s been a very, very different story for women and Native Americans.

Women’s voting rights took a long time. Native Americans’ took longer.

The struggle for women’s voting rights began in April 1776, when 32-year-old Abigail Adams sat at her writing table in her home in Braintree, Massachusetts, a small town a few hours’ ride south of Boston.

The Revolutionary War had been going on for about a year. A small group of the colonists gathered in Philadelphia to edit Thomas Jefferson’s Declaration of Independence for the new nation they were certain was about to be born, and Abigail’s husband, John Adams, was among the men editing that document.

Abigail had a specific concern. With pen in hand, she carefully considered her words. Assuring her husband of her love and concern for his well-being, she then shifted to the topic of the documents being drafted, asking John to be sure to “remember the Ladies, and be more generous and favourable to them than [were their] ancestors.”15

Abigail knew that the men drafting the Declaration and other documents leading to a new republic would explicitly define and extol the rights of men (including the right to vote) but not of women. She and several other well-bred women were lobbying for the Constitution to refer instead to persons, people, humans, or “men and women.”

Her words are well preserved, and her husband later became president of the United States, so her story is better known than those of most of her peers.

By late April, Abigail had received a response from John, but it wasn’t what she was hoping it would be. “Depend on it,” the future president wrote to his wife, “[that we] know better than to repeal our Masculine systems.”16

Furious, Abigail wrote back to her husband, saying, “If perticular [sic] care and attention is not paid to the Ladies, we are determined to foment a Rebellion.”

Abigail’s efforts were unrewarded.

Adams, Jefferson, Hamilton, and the other men of the assembly wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed . . .”

The men had won.

At that time, a married woman couldn’t make out a will because she couldn’t independently own property. Her husband owned anything she’d brought into the marriage. If he died, a man appointed by a court would decide which third of her husband’s estate she could have and how she could use it, and he would supervise her for the rest of her life or until she remarried. A woman couldn’t even sue in court, except using the same laws applied to children and the mentally disabled with a male executor in charge.

And, for sure, a woman couldn’t vote.

The Generational Fight for Women’s Suffrage

Nearly a hundred years later, things hadn’t changed much. Susan B. Anthony went to her ward’s polling station in Rochester, New York, on November 1, 1872, and cast a vote.

Justifying her vote on the grounds of the 14th Amendment, Anthony wrote, “All persons are citizens—and no state shall deny or abridge the citizen rights.”17

Six days later, she was arrested for illegally voting. The judge, noting that she was female, refused to allow her to testify, dismissed the jury, and found her guilty.

A year later, in the 1873 Bradwell v. State of Illinois decision, concerning the attempt of a woman named Myra Bradwell to practice law in Illinois, the US Supreme Court ruled that women were not entitled to the full protection of persons for purposes of voting or even to work outside the home.

Justice Joseph P. Bradley wrote the Court’s concurring opinion, which minced no words: “The family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.”18

After another 50 years, suffragettes eventually won the right to vote with the passage of the 19th Amendment in 1920. But burdensome laws, written and passed mostly by men, continue to oppress women to this day. These include voter suppression laws that hit women particularly hard in Republican-controlled states.

Those states, specifically, are the places where “exact match” and similar ALEC-type laws have been passed forbidding people to vote if their voter registration, ID, or birth certificate is off by even a comma, period, or single letter. The impact, particularly on married women, has been clear and measurable. As the National Organization for Women (NOW) details in a report on how Republican voter suppression efforts harm women:

Voter ID laws have a disproportionately negative effect on women. According to the Brennan Center for Justice, one third of all women have citizenship documents that do not identically match their current names primarily because of name changes at marriage. Roughly 90 percent of women who marry adopt their husband’s last name. That means that roughly 90 percent of married female voters have a different name on their ID than the one on their birth certificate. An estimated 34 percent of women could be turned away from the polls unless they have precisely the right documents. 19

MSNBC reported in a 2013 article titled “The War on Voting Is a War on Women,” “[W]omen are among those most affected by voter ID laws. In one survey, [only] 66 percent of women voters had an ID that reflected their current name, according to the Brennan Center. The other 34 percent of women would have to present both a birth certificate and proof of marriage, divorce, or name change in order to vote, a task that is particularly onerous for elderly women and costly for poor women who may have to pay to access these records.”20 The article added that women make up the majority of student, elderly, and minority voters, according to the US Census Bureau. In every category, the GOP wins when women can’t vote.

Silencing and Suppressing Native Voices

Republicans generally are no more happy about Native Americans voting than they are about other racial minorities or women. Although Native Americans were given US citizenship in 1924 by the Indian Citizenship Act, that law did not grant them the right to vote, and their ability to vote was zealously suppressed by most states, particularly those like North Dakota, where they made up a significant share of the non-white population.

Congress extended the right to vote to Native Americans in 1965 with the Voting Rights Act, so states looked for other ways to suppress their vote or its impact. Gerrymandering was at the top of the list, rendering their vote irrelevant. But in the 2018 election, North Dakota took it a step further.

Most people who live on the North Dakota reservations don’t have separate street addresses, as most tribes never adopted the custom of naming streets and numbering homes. Instead, people get their mail at the local post office, meaning that everybody pretty much has the same GPO address. Thus, over the loud objections of Democratic lawmakers, the Republicans who control that state’s legislature passed a law requiring every voter to have his or her own unique and specific address on his or her ID.21

Lots of Native Americans had a driver’s license or even a passport, but very few had a unique street address. When the tribes protested to the US Supreme Court just weeks before the election, the conservatives on the Court sided with the state.22

In South Dakota, on the Pine Ridge Reservation, the Republican-controlled state put polling places where, on average, a Native American would have to travel twice as far as a white resident of the state to vote. And because that state’s ID laws don’t accept tribal ID as sufficient to vote, even casting an absentee ballot is difficult.23

Although the National Voter Registration Act of 1993, also known as the Motor Voter Act, explicitly says that voting is a right of all US citizens, that part of that law has never been reviewed by the Supreme Court and thus is largely ignored by most GOP-controlled states. As a result, you must prove your innocence of attempted voting fraud instead of the state proving your guilt.

Madison’s Warning

Looking back, although about half of the founders were practicing their own form of voter suppression as slaveholders, they held egalitarian values for the future of this country and worried obsessively about a takeover by the very rich. It’s hard to imagine that they’d ever sanction interpreting the First Amendment as a license for billionaires and corporations to buy our political system (as the Supreme Court first did in 1976 in the Buckley v. Valeo case and then supercharged in 2010 with Citizens United v. FEC).

In the summer of 1785, James Madison was essentially running the Constitutional Convention in Philadelphia, and he gave a speech (you can read it in his Notes of Debates in the Federal Convention of 1787) about the importance of not allowing the new country they were forming to become an oligarchy that was run of, by, and for the rich.24 He said in a 1788 speech that there were “two cardinal objects of Government, the rights of persons, and the rights of property.”25 He added that if only the rights of property were written into the Constitution, the rich would ravage the few assets of the poor. “Give all power to property,” he said, “and the indigent will be oppressed.”

In fact, Madison noted, all the former republics that they had studied in his five years of preparation for writing our Constitution had ended up corrupted by the political power of concentrated money. “In all the Governments which were considered as beacons to republican patriots and lawgivers,” he said, “the rights of persons were subjected to those of property. The poor were sacrificed to the rich.”

Thus, wanting to establish a country where the rich didn’t end up running it as their own private kingdom or oligarchy, he proposed that the House of Representatives—the only branch elected directly by the people, and every two years at that—should solely have the power to raise taxes and spend federal funds. And he didn’t want the ability to vote for members of Congress to be limited to those who owned property. When that had happened, in previous governments, Madison pointed out, “the poor were sacrificed to the rich.”

“The time to guard against this danger is at the first forming of the Constitution,” he said in his speech. “Liberty not less than justice pleads for the policy here recommended. If all power be suffered to slide into hands [of property owners],” he warned, the American citizenry would “become the dupes and instruments of ambition, or their poverty and independence will render them the mercenary instruments of wealth. In either case liberty will be subverted; in the first by a despotism growing out of anarchy, in the second, by an oligarchy founded on corruption.”

And, indeed, the delegates assembled agreed. Only the House of Representatives, to this day, can raise taxes and spend money.

In a 1787 letter to Edward Carrington, Jefferson wrote, “It seems to be the law of our general nature, in spite of individual exceptions; and experience declares that man is the only animal which devours his own kind, for I can apply no milder term to the governments of Europe, and to the general prey of the rich on the poor.”26

In an 1816 letter to Samuel Kercheval, Jefferson explained, “I am not among those who fear the people. They, and not the rich, are our dependence for continued freedom.”27 He added that if we ended up with an oligarchic government that was run, directly or indirectly, by the rich, America’s working people “must come to labor sixteen hours in the twenty-four . . . and the sixteenth being insufficient to afford us bread, we must live, as they [poor Europeans] now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow sufferers.”

One wonders how the employees of the giant corporations that throw so much money at the Republican Party would compare that metaphor with their own current existence, since the GOP has successfully fought any meaningful reform of union rights, universal health care, or the minimum wage since the Reagan administration.

Part Two exposes the concerted strategy that transformed America into an oligarchy that serves the rich, and not we, the people.